Councilor Questions Chairman’s’ Authority

This story was written by Hillary Waite and appeared in the Nutfield News on June 14, 2007
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The Town Council meeting on June 5 ended in controversy when Councilor Janet Fairbanks questioned Chairman Craig Bulkley’s right to request a legal opinion from the law firm Boutin and Altieri, PLLC of Londonderry.

And while debate centered on whether a contract was required for town legal counsel, Interim Town Administrator John Moody said the real question comes down to how much authority the chairman has on behalf of the council.

“There are a variety of people who interpret it a certain way and that needs to be ironed out,” Moody said. “The lack of clarity of what roles everyone should play leads to conflict.”

Fairbanks first asked Bulkley if the town has a contract with Boutin and Altieri to be the town’s official legal counsel. She said that according to the charter, “as Chairman, you may not solicit legal opinions from someone who is not the Town Attorney.”

Bulkley responded that Boutin and Altieri has been the primary legal firm for the town for a long time. He agreed that a Request for Proposal (RFP) should be put together, but said the council has been “straight out” and it had been put on the back burner.

Fairbanks responded that she “would like clarification on that” and added, “if we don’t have a contract with him, that does not make him our Town Attorney.”

Fairbanks added she thinks “a lot of money has been spent on legal opinions that some of us don’t think we need.” If the charter means that Boutin’s firm is not the town’s attorney, the Town Council, not just the chairman, should weigh in on whether a legal opinion should be sought, with a majority vote required, Fairbanks said.

The most recent legal opinion obtained from Boutin and Altieri addressed a decision made by Councilor Kevin Coyle last week to share information about the contractual negotiations for town administrator with a newspaper. That opinion states the contents of the contractual negotiations are protected under state statute and therefore should have remained confidential.

Coyle, who is an attorney, also offered his view that, according to the charter, “there are really supposed to be two attorneys for the town and nobody seems to recognize that.” He quoted the Charter saying, “According to Section 8.8 (A), there shall be appointed by the Administrator, subject to confirmation vote of the Town Council...a town attorney.” In Section (B), it states, “The Town Council may engage as need such other attorneys as are deemed in the best interest of the Town or to provide legal advice to the Town Council.” Coyle said the RFP is needed, as “there are other people who are interested in the job.”

Both Moody and Bulkley said that while the charter says the council “may” engage other attorneys, it does not state the council “must” have two separate attorneys for the town administrator and the council.

“It is there as an opportunity, but in my view it does not require another attorney,” Moody said.

“The council should be doing its due diligence every few years by doing an RFP for legal counsel and services,” Bulkley added. He said that is unlikely to happen until the new town administrator is in place.

Moody researched the history of the town’s relationship with Boutin and Altieri. According to the records, the town switched from the law firm Gallagher, Callahan & Gartrell to Boutin and Solomon Associates in 1992. The Boutin Law Firm has been the town’s main attorney since then.

Last year, then town administrator Russell Marcoux found that Boutin and Altieri’s rates for Derry were incomparable to other law firms. Moody said that, at the time, Marcoux did not recommend doing an RFP for Fiscal Year 2008 because Boutin would probably raise its rates to be competitive with others. In general, according to Moody, “Marcoux felt that there was sufficient reason to believe the town was getting a good deal.”

In terms of a written contract with Boutin and Altieri, Moody says he is still “looking through the dusty records.” But Brenda E. Keith, an attorney with Boutin and Altieri and a former member of the Derry Town Council, said it is possible to employ the firm on a verbal basis without a written contract.

In the midst of this conflict, the council continues its contract negotiations for town administrator with Gary Stenhouse. Bulkley expects to have something to report about the negotiations at the next council meeting on June 19.