Chairman Glennon called the meeting to order at 7:02pm.
Chairman Glennon noted the Council had just met with their legal counsel in a non-meeting. The Council would vote whether or not to allow public comments. If public comments were allowed each speaker would be timed for a brief statement. He noted Councilor Kwaks is in the audience and would not participate tonight as part of the Town Council. He had thought the attorney would be present tonight for the meeting, but it had been decided that was not necessary. He referenced a letter from Attorney F. X. Bruton dated October 7, 2008 in response to the Citizen’s Initiative Petition. In regards to Jennifer Jarvis’ comments made October 1, 2008, the Town Council would have needed to determine whether there is sufficient evidence to warrant an investigation. The Citizen’s Initiative Petition would have required the Council to look into these allegations. He noted the petition has deficiencies according to legal opinion. He asked the Council for the authority to release the letter submitted by legal counsel.
Motion: To release the attorney/client privilege letter from Attorney F. X. Bruton.
Motioned: Councilor Ploski
Seconded: Councilor Minutelli
Vote: 6-0 Motion carries
Councilor Kwaks Absent
Councilor Bergeron Aye
Councilor LaBranche Aye
Councilor Ploski Aye
Councilor Minutelli Aye
Vice-Chairman Carr Aye
Chairman Glennon Aye
Chairman Glennon read the letter from Attorney F. X. Bruton as follows: “As you know, last week Ms. Jennifer Jarvis submitted statements at the public comment portion of the Town Council’s meeting, setting forth certain allegations with respect to Councilor Rose-Anne Kwaks. The Initiative Petition is based upon a claim of a violation of oath of office and a violation of the Town Charter, claiming that Councilor Kwaks is ‘. . . guilty of public conduct, the result of which would bring loss of respect for the Council and the Town of Newmarket.’ Thus, the Petition seeks dismissal of Councilor Kwaks for violation of the oath of office and declaration of vacancy on the Town Council in accordance with Section 3.14 of the Town Charter. However, the Petition does not set forth any reasons or allegations as to why Councilor Kwaks violated the oath of office or engaged in contact, which would bring loss of respect to the Council and the Town of Newmarket. These allegations must be specific in order for the Council to investigate and/or Councilor Kwaks to respond to these allegations. Although Ms. Jarvis has submitted her concerns to the Town Council, it is clear to us that the concerns were not attached to the Petition, or set forth within the body of the Initiative Petition. We cannot assume that every person who signed the Petition agrees with every point made by Ms. Jarvis.
“In hearing involving the removal of public officials, the official or employee is entitled not only to the notification provisions of RSA 42, but also is entitled to notification of the charges as well as a hearing. The notice charges must be sufficiently specific to enable the employee or official to prepare an explanation of defense to the charges contained in the notice. (See Loughlin, New Hampshire Practice, Local Government Law, Section 557.) For the reasons set forth herein, we are of the opinion that the Initiative Petition is defective, and as such, pursuant to Section 8.2 (B) of the Town Charter, it should be returned to the Petitioners with an explanation.
“We understood that the Town Council had intended to address this matter as an agenda item for its meeting this Wednesday night. In light of the submission of the Initiative Petition, and in light of the need for more specific charges to be made within the Petition, in our opinion, the matter should not be discussed at the Town Council’s meeting this Wednesday night, but rather, a public hearing should be scheduled before the Town Council in accordance with the provisions of Section 8.2 of the Town Charter once a valid petition is received.”
Chairman Glennon noted there had been a discussion upstairs as to whether this would be a public hearing or not. He asked the Council for a decision as to whether to allow the public to speak at this time. He noted if the public was allowed to speak, the time limit would be for three minutes. He added the Council would also need to determine whether to allow the public to speak to everything or just the petition language.
Motion: To allow the public to speak tonight.
Motioned: Councilor LaBranche
Seconded: Councilor Bergeron
Councilor Ploski felt the public would have an opportunity to speak once a new petition is signed and validated. He noted there is no legal petition before the Council at this point and therefore there is nothing to talk about.
