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Belknap Co. Commission likely to argue it can't be sued by lawmakers

LACONIA — The Belknap County Commission has withheld comment on the suit brought against by it the Belknap County Convention, pending consultation with legal counsel. However, earlier correspondence about the issues at stake and prospect of litigation from Sharon Cuddy Somers of Donahue, Tucker & Ciandella, the attorney representing the commissioners, foreshadows the arguments she will present in their defense.

After wrangling over the last two county budgets, last week on behalf of the convention, Representatives Colette Worsman (R-Meredith), the chair, and Richard Burchell (R-Gilmanton), the clerk, brought suit against the Belknap County Commission, asking the Belknap County Superior Court to affirm its authority over each of the individual line items within the budget and prohibit the commission from spending more from any line item than it appropriated.

In November 2013, a month after the convention voted to file suit against the commission, Somers wrote to David Horan, the attorney for the convention, questioning the authority of the convention to bring legal actions and claimed that it has no such authority. Noting that the enumerated powers of county conventions are prescribed by statute, she stated that "nowhere does the statute indicate that the delegation (convention) may bring legal actions in court on behalf of the county, let alone against the county commissioners."

Echoing Somers, Rep. David Huot (D-Laconia), a retired district court judge, also questioned whether "an appropriating authority has standing to sue an executive authority over its failure to confine expenditures to the amounts specified in particular line items. He explained that in order to have standing, a party must demonstrate they were harmed or injured by the alleged action. An individual taxpayer or group of taxpayers, he said, would have standing to compel any branch of county government to comply with the law.

Likewise, Somers challenged the authority to retain and compensate legal counsel. Although the authority to appropriate funds rests with the convention, the authority to enter contracts and approve expenditures is vested in the commission. In fact, before retaining Horan, the convention, without the authorization of the commission, sought legal advice from the Mitchell Group and incurred expenses that have yet to be paid. Somers concluded by explaining that while seeking to avoid litigation, "the commissioners will defend against the action and will seek to have those individuals who voted to proceed with the action be held personally responsible for attorneys' fees and costs."

Worsman and Burchell filed suit on the strength of a motion the convention adopted at its meeting on October 22, 2013. The motion read: "To authorize Attorney Davifd Horan to go forward with a petition for declaratory judgment in the Belknap County Superior Court concerning the legitimacy or lack thereof of the Belknap County Commissioners rewriting the 2013 county budget by making multiple line transfers without Executive Committee review and approval and to further authorize Attorney David Horan to take any and all legal action as he sees fit to protect the fiscal integrity of the County Delegation's (convention's) original budget as voted."

Ten Republicans voted for the motion, while four Democrats were opposed and four other members — three Republicans and one Democrat — were absent and did not vote.

Since the motion was adopted in October, by which time much of the funds appropriated in 2013 had been expended, the convention choose not to proceed with legal action. When the same issues arose over the budget again this year Worsman filed suit, without requesting the convention to reaffirm its intent as expressed with respect to the 2013 budget 10 months earlier. Nor did Worsman notify members of the convention of her decision to litigate at this time.

A preliminary hearing in the case is scheduled in Belknap County Superior Court on Wednesday, August 6, beginning at 9 a.m.

Last Updated on Saturday, 19 July 2014 12:02

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Meredith man indicted for 13 alleged sex attacks of minor girl

SUPERIOR COURT — A Belknap County grand jury has indicted a Meredith man for multiple counts of aggravated felonious sexual assault that occurred in Tilton and Meredith possibly stretching over a period of nine years.

Mark Thurber, 42, of 118 Chase Road faces seven counts of special felony pattern rape for his alleged sexual assaults of a victim in Meredith whose birth date is in 1999. He also faces six counts of special felony pattern rape for assaults on the same victim that allegedly occurred in Tilton.

Indictments indicate the rapes occurred from 2005 when the alleged victim was 5 until 2014.

Thurber was originally arrested by Meredith Police on June 26 for a single count of rape against that was alleged to have occurred during the months between January 2007 and December of 2010 and while the child was under 13-years-old.

He appeared by video the next day in the 4th Circuit Court, Laconia Division and was ordered held on $50,000 personal recognizance bail and $5,000 cash-only bail. He was also ordered not to attend church services although he is allowed to worship privately with his pastor.

Pastor Mark Warren of the Grace Capitol Church confirmed Thurber is a member of his church but is not an employee. Deputy Belknap County Attorney Carley Ahern said she has information that Thurber has been a participant in youth ministries.

Thurber posted bail and was required to report daily and in person to the Meredith Police Department.

During one of his mandatory reporting sessions, Thurber was rearrested on July 10 by Meredith Police on a warrant for pattern felonious sexual assault issued by the Tilton Police. He appeared the next day in the 6th Circuit Court, Franklin Division where he was ordered held on $75,000 cash only bail.

Affidavits supporting the arrest in all 13 charges were sealed by the courts.

Last Updated on Friday, 18 July 2014 11:52

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Laconia police officer appeals suspension in court

LACONIA — A city police officer who was suspended for two days without pay for her third infraction of internal policies has appealed her suspension to the Belknap County Superior Court.

Patrol Officer Brandy Enis has asked the court for a declaratory judgment after police management determined her actions to assist a local landlord who needed access to a common area in his apartment building constituted "unsatisfactory performance."

Enis, who is represented by attorney Brad Davis, said the Laconia Police Commission determined she "entertained a civil matter that did not warrant police intervention" when she went to help landlord John Daigneault access his basement to perform routine maintenance on a furnace.

Daigneault called the police department on April 17 for "civil standby" help and Enis was dispatched to 307 Elm Street. Once she arrived, the landlord told her he needed to go through his tenant's apartment to reach the basement and he produced a key to the apartment.

Daigneault sent a text message to the tenant 27 hours before he went there. He said he called police because he had had an altercation with the same tenant the previous day and wanted the police to be there to ensure his safety as well as to protect the property of the tenant and to protect him against fraudulent claims.

Enis entered the apartment with Daigneault after knocking and making sure the tenant wasn't home. She waited for Daigneault while he changed the filter. Both told the Police Commission the entire transaction lasted less than five minutes.

She left a note for the tenant explaining why she was there. The tenant didn't file a complaint, however her immediate supervisor, during his review of the daily activities, questioned her actions and said she "allowed a landlord to illegally enter an apartment."

He issued a written Class 2 warning but because it was Enis's third such warning in less than five years, management supported by the commission, said the combination of the three rose to a single Class 3 violation that warranted a suspension.

News of Enis's initial hearing before the commissioners, which she requested be held in public, brought landlords from around the city to voice their support for her and to speak to the commission about the Police Department's role in "civil standbys."

Chief Chris Adams recommended three days off without pay however the commissioners determined two days without pay was the appropriate penalty.

In his written argument to the court, Davis said that Enis has had no training in civil/landlord law although the commission cited that law as the reason Enis was reprimanded.

He said the commission erred when it determined Enis was not acting in her "community care-taking function" as is often required of police officers.

Citing case law from 2002, Davis said that on any average day a police officer performs a "broad range" of duties that extends to investigating crimes to issuing traffic violations, as well as "community care-taking functions" like helping stranded motorists, returning lost children to parents and assisting and "protecting citizens in need."

Davis argues Enis actions accomplished three things: she protected the landlord from any potential physical harm, protected the tenant's belongings from the landlord, and protected the landlord against any claim against him for theft.

He said the care-taking role provided by Enis was separate and distinct from the detention of evidence related to a crime and that police management erred when they compared the two.

Davis also said that state law provides that a landlord can enter a tenant's property with 24 hours notice to perform duties commonly associated with the care and upkeep of his or her property. In this case, he said Daigneault provided 27 hours notice.

Enis and Davis also contend that management improperly used an escalating scale when classifying her third warning as a single Class 3 warning.

He said her two prior Class 2 write-ups had nothing to do with the third and doesn't constitute "escalating" behavior. As an example, he gave repeated tardiness as evidence of escalating behavior and agreed progressive discipline would be warranted in a case like that.

Davis said the department's own policy uses the specific term of "same type" and not "same class of behavior suggesting the policy was designed to punish repeat behavior of the same type and not to lump all Class 2 violations of police policy together to come up with one Class 3 violation.

He asks that the court find the Laconia Police Commission was wrong when it found Enis had committed an unlawful act, that the court find her actions of April 17 don't rise to the level of unsatisfactory behavior and to reverse the decision of the Commission, grant her relief as is just and equitable.

 

Last Updated on Friday, 18 July 2014 11:42

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Gas grill fire threatens Franklin Street home; damage limited to $15k

LACONIA — A quick response by firefighters forestalled serious damage to the residence at 126 Franklin Street, where a gas grill on a deck wrapped around the house caught fire this week.

The homeowner reported after the fire was thought to have been extinguished the propane tank continued to leak, reigniting the blaze and causing an explosion the blew the housing of the grill 10 feet away. Fire Chief Ken Erickson said that anyone standing near the grill when the explosion occurred would have suffered serious burns and injuries.

Captain Chris Shipp's crew from Central Station promptly extinguished the fire and cooled the propane tank, forestalling a structure fire and second explosion.

Heat from the fire charred the deck and melted the vinyl siding of the home. Erickson estimated the cost of the damage at $15,000.

Last Updated on Friday, 18 July 2014 11:36

Hits: 186

 
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