Chairman Glennon called the meeting to order at 6:41pm. He explained the Council would enter into a non-public session under RSA 91-A:3 II (c) to discuss personnel issues.
Administrator Wojnowski stated he understood the non-public was about him and wished to have the discussion public under the Right-To-Know Law.
Chairman Glennon explained after a discussion with Vice-Chairman Carr about a discussion he had with Administrator Wojnowski on Tuesday evening, they had decided to call a Town Council Special Meeting. He noted this was not an attack on any individual, but felt the issue was important enough to bring before the Council. He explained Administrator Wojnowski had forwarded the cover sheet for what may become a new petition Jennifer Jarvis would be sending around to Attorney F. X. Bruton for review. He felt this action was not right and felt the tax payers were paying for legal review and opinion for a private citizen of Newmarket, who is circulating a petition to remove a Town Councilor. He explained legal counsel had provided Jennifer Jarvis with a letter regarding the deficiencies of the last petition. He suggested Jennifer Jarvis should have brought the document to her own attorney for review. If a petition is submitted with the verified signatures necessary, it would be sent to the Town Council and then on to Town Counsel for review. He reiterated his feeling that the Town Administrator assisted a private citizen with legal review prior to a formal petition being submitted. He had spoken with Attorney Bruton this morning, who had indicated there had not been a breach of attorney/client privilege. He understood there was a letter submitted to the Town from legal counsel indicating the wording of the document reviewed met the criteria for a petition. No other legal advice had been given. He noted Attorney Bruton did indicate there may be a perception problem. He felt there is the possibility of setting a precedent. He indicated the Charter spoke clearly about reviewing petitions and contacting petitioners regarding the status, but was unclear in which manner the contact needed to be. He reiterated Attorney Bruton did not feel anything illegal had been done.
Administrator Wojnowski explained he had received a phone call Tuesday morning from Jennifer Jarvis, who in conversation said that she had put together the new petition, and she said she was going to go, or was considering going to her own attorney to have him look at it, but she thought well the person who’s muster it really needs to pass, because my attorney could look at it and say as far as I see from what I see was written by Attorney Bruton, yes, it is. But if it gets to him, to FX, and he says nope its still deficient, then what we, what happens here is just, we are delaying the process. And I said you know, I don’t think it is unreasonable to have him just review it and then to provide an opinion as to whether or not he felt it met the standards that he had established in the letter. And that’s what I did. I brought it there and presented it to him. It was, I don’t know how long, he wasn’t there, I dropped it off. I’m sure he you know, sat back, it took me a few minutes because it was a three page overview of what the claims that Ms. Jarvis made when she was here several weeks ago on the first I believe it was. And the issue was that the opportunity to move this process forward was foremost in my mind. Because the, what happened on the eighth was a reading of the letter but not an explanation as to how we move to a point to resolve this issue and so that the individuals, the petitionees knew what they had to do. And that’s one of the things I said to you. Because otherwise we’re just continuing to bounce the issue back and forth if it is not done properly. And all that’s doing is serving to continue to agitate the community. And believe me, you know, I have been downtown, I have talked to people, we have all received letters, there are a lot of agitated people out there that want this thing to be done and over with and for the Council to move forward. And I thought that was the best course of action. I’m sure that you know, if I called up Jen Jarvis and say “Jen it’s gonna cost you $200, would you write me a check?” I believe ‘d pull her checkbook out in order to move this process along and get it done and over with and get the community back on track to where we need to be at this point. I understood where the Chair was coming from, but you know, I think in the best interest of the community, and I think that should be in the foremost in everybody’s mind, its always foremost in mine, to do it right and make sure that it can move forward. You know, you raise the issue of well would every resident come in and ask for a review, you know, if somebody did that and said “Hey Ed, would you be willing to send this to counsel to see if this initiative that I want to do is worded right?” I’d say “I’m sorry, you need to go to our own attorney and do that.” I think this was, this was a situation that had it been clarified on the eighth, that evening, if we had spent a few minutes clarifying it, it would have been moved on at this point. I don’t know maybe it would be resolved, maybe we’d still be in the throws of it, but we continue to be in the throws of it at this point in time. On a personal level, I made, I think I made the right choice and the Council can slap my hand (motion made) if that’s what they so choose. But you know, it was not done in no way as a means to remove a sitting Councilor. And I say that honestly and looking into the eyes of Rose-Anne Kwaks right here. That was not my goal. The goal is to get the process going, let’s get it resolved and let’s move on.
Chairman Glennon felt this was a situation the Town Council should have been apprised of.
Administrator Wojnowski stated it is not a Council decision as to whether the petition is valid or not. Any petition submitted to the Town Council needs legal review.
Chairman Glennon stated with all due respect, Administrator Wojnowski works for the Town Council. He felt the Council should have been advised of the action that would be taken. He questioned whether Administrator Wojnowski would have apprised him if he had not been asked to do so by Attorney Bruton.
Councilor Kwaks stated she understood Administrator Wojnowski’s position but believed it is the decision of the Council as a group to determine who the legal counsel would be for the Town. She understood the only way to waive attorney/client privilege is by a vote of the Council. She felt obtaining a legal opinion for a citizen waived that privilege for the Council. She added the Council had originally released only three paragraphs and then had voted to release the entire document from Attorney Bruton. She added Jennifer Jarvis had also received a letter. She felt the petitioner had been notified of the deficiencies. She stated the individual citizen’s concerns should be submitted to the Town Administrator who would then send them to the proper departments. She felt the petitioner had received proper notification. She stated the Town did not have the right to get a legal opinion for a private citizen and cited the Town Charter Section 7.4 Private Use of Town Property and Personnel.
Administrator Wojnowski explained he did not obtain a legal opinion for Jennifer Jarvis. The opinion from Attorney Bruton indicated whether the document met the criteria for a petition.
Councilor Kwaks felt the legal opinion had been obtained on Jennifer Jarvis’ behalf.
Administrator Wojnowski noted Attorney Bruton had not felt there was a breach of attorney/client privilege.
Councilor Kwaks felt that was debatable. She indicated she would ask her attorney. She felt the attorney/client privilege had been violated when a legal opinion had been obtained for a private citizen.
Chairman Glennon reiterated Attorney Bruton had not felt anything illegal had been done. His concern was with the perception the actions taken would have.
Administrator Wojnowski understood the perception issue and added the perception would be on action taken by him specifically, not actions taken by the Town Council. His desire was to move this issue forward due to the havoc it has created within the Town.
Chairman Glennon felt this issue would continue until all the people this specific group wanted to have removed were removed.
Councilor LaBranche asked if Jennifer Jarvis offered to pay for this legal review.
Administrator Wojnowski stated he did not have that conversation with Jennifer Jarvis.
Councilor LaBranche stated the Council has been working under the assumption a second petition would be submitted. He stated Attorney Bruton would have reviewed that for compliance. He understood attorneys view things differently and suggested Jennifer Jarvis’ attorney may have a different view than Attorney Bruton. Ultimately it is Attorney Bruton who decides whether the language passes the criteria. He noted this Council relies on the advice from McNeill and Taylor. He understood the desire to move this forward toward resolution. He did not see a serious issue in the actions taken by the Town Administrator.
Councilor Minutelli agreed stating he also didn’t see any issues. He agreed with Attorney Bruton. Attorney/Client privilege is designed to protect a third party from information. Section 4.6 Powers and Duties of Town Administrator, of the Town Charter, describes the responsibilities of the Town Administrator. He read “He shall be charged with the preservation of the health, safety, and welfare of persons and property and shall see to the enforcement of the ordinances of the Town, this Charter, and the laws of the State of New Hampshire.” He felt a citizen’s initiative petition is an issue directly relating to the Town Charter. It is the Town Administrator’s responsibility to seek legal opinion. He felt Administrator Wojnowski performed his duties as Town Administrator. He has no issue with the actions taken by the Town Administrator.
Councilor Bergeron stated he had an issue with the thought there could be a perception problem. He asked what clear and evident harm could be caused when inevitably this document would have been back before the same attorney. He felt Administrator Wojnowski sped this process up. He expressed his concern with Councilor Kwaks being able to weigh in on this issue. He felt there is a conflict of interest as this issue relates to charges being alleged against her.
Chairman Glennon disagreed stating the Council is dealing with the actions taken by the Town Administrator, not Councilor Kwaks.
Councilor Bergeron stated the issue is dealing with the petition which spells out the allegations against Councilor Kwaks.
Councilor Ploski felt this was a procedural issue. He noted any citizen with a petition brings the petition to the Town Clerk’s office for validation of signatures. Once validated, it then goes to the Town Administrator to be sent to legal counsel for review. He felt this had been done properly when Jennifer Jarvis submitted the first petition. This second petition was submitted with no signatures on it. He felt procedures should have been followed. The procedure is set forth in the Town Charter. He felt the fact this was a second petition was irrelevant. The petitioner had the option to submit another petition if desired. Jennifer Jarvis’ submission of a petition makes a whole new petition; not a continuation of a petition. He agreed with the perception issue. He stated it appeared favors are being done. This is not good for the Town. He understood the havoc this is creating in town and felt it was all the more reason to follow procedures. At the October 8th meeting the original petition had been announced as defective. Per advice of legal counsel, no public comment had been accepted.
Councilor Kwaks stated she agreed with Councilor Minutelli to a point. The attorney would have the right to look at the language presented, but only after it had been validated for signatures and was presented to legal counsel on behalf of the town, not on behalf of an individual citizen. She asked for a copy of the language sent to Attorney Bruton.
Administrator Wojnowski noted he would ask Attorney Bruton’s opinion as to whether that document could be released. His concern was releasing information to the person the petition was pointed at.
Councilor Kwaks stated it was public information. She had a right to know what was contained within this document under the Right-To-Know Law of RSA 91-A:3. She stated she would ask her attorney to request the document if necessary. She reiterated Jennifer Jarvis should not have asked for an opinion from the town’s legal counsel.
Administrator Wojnowski noted the issue becomes how long the Town Council is going to wait before it takes action on issues brought to the Town Council by citizens of the town. It was the assumption of the Council that a second petition would be brought forward. He explained town counsel has established guidelines petitions need to meet in order to be valid. This would be considered a new petition because the last one had been found deficient. This is not a petition that has been submitted with signatures. He stated he would call Attorney Bruton on Monday to ask whether he can provide a copy of the document to Councilor Kwaks.
Councilor Kwaks stated she was entitled a copy of the document under RSA 91-A:3 Right-To- Know Law. She asked if the document had been sent to Jennifer Jarvis
Administrator Wojnowski noted he made a phone call to Jennifer Jarvis stating upon legal counsel review it met the criteria.
Councilor Kwaks expressed her frustration with a legal opinion being provided to a private citizen while a sitting Councilor could not be provided a copy.
Administrator Wojnowski explained he would call Attorney Bruton on Monday and would let Councilor Kwaks know as soon as possible.
Chairman Glennon asked if the rest of the Council would get copies.
Administrator Wojnowski noted he was not withholding information. If the petitioner chose to release the document prior to Monday when he spoke with Attorney Bruton that was her decision.
Councilor Kwaks felt the Council was entitled a copy of the document as the town had paid for the legal opinion. She added the issue could have been resolved if Administrator Wojnowski had made a few clarifying statements at the meeting when this all came up.
Councilor LaBranche felt it was important to clarify that legal counsel did not inform the Council they should not let the public speak at the October 8th meeting.
Councilors Glennon, Carr and Ploski disagreed.
Chairman Glennon explained he had a discussion with the attorney who had advised him not to discuss the issue after the meeting had been held. He explained the meeting had been held. The Council had voted not to discuss the issue at the meeting.
Councilor LaBranche noted he did not indicate the Council should have allowed discussion. He was discussing the decision as to whether public comment would be allowed. He explained Chairman Glennon had made that decision. Legal counsel had stated he didn’t see a problem with allowing public comment, but to be careful of discussions and not answer any of the questions. After the fifteen minute meeting on October 8th, there had been a lot of fallout. He had received a large number of phone calls, emails and stopping on the street for discussion. There were a lot of upset citizens. He felt presenting this unsigned document to legal counsel for review could perhaps prevent a second round of such upset and agitation among residents.
Councilor Minutelli noted he would not comment with the Council’s conversation with Attorney Bruton because that information is privileged. He felt it was important to be careful when framing the actions the Town Administrator had taken. He agreed it would be inappropriate for the Town Administrator to take a document to legal counsel for opinion for a private citizen. He felt this was not what happened here because there would be tangible information given to a private citizen explaining what needed to be done. He noted there is no work product here. The work product has already been completed. He felt the Town Administrator did his job when seeking whether the document presented would pass muster.
Vice-ChairmanCarr stated she agreed with the Chairman. She had been concerned when she heard about the issue. It struck her as the Town doing something for a private citizen. She felt procedures needed to be followed. She felt the Town Administrator’s intentions were good but the issue still bothered her.
Councilor Ploski noted the Charter had been written and revised several times to get to the product before the Council today. The Charter spells out the procedures necessary. A second petition does not make it a continuation of the first. A second petition should be considered a new petition and procedures need to be followed.
Chairman Glennon noted he received a phone call from a citizen who had been asked to sign the petition. The citizen stated they had been told the new petition is legal because it had been checked by the Town’s attorney. He expressed his concern with residents being told the petition is legal. He felt people were signing the document without knowing what they were signing. Some residents had believed it was in support of Jennifer Jarvis’ appointment to the Advisory Heritage Commission.
Councilor Bergeron asked what the Council was going to do. He did not feel this issue warranted a special meeting of the Council.
Chairman Glennon noted this is why he brought it to the Council. He is unable to make a decision like this alone. He felt it was important enough to bring before the Council for discussion.
Councilor LaBranche noted the perception the petition is legal does not force a person to sign it. If anything, it allows the person signing it to understand what they are signing. He noted as a Councilor he is trying to move forward and get things done. He suggested several other times this discussion could have taken place. He added Councilor Minutelli had been away and was not expected back until Sunday and Councilor Bergeron had prior commitments. He explained this is his third night of meetings. He noted the Chairman and Vice-Chairman felt this was a serious matter and asked what they wanted to do with this.
Chairman Glennon felt it was important enough to bring to the Council.
Councilor LaBranche noted he had asked in an email for something to be put in Councilor’s boxes so Councilors would know what was being discussed. The only response given was that it was a Town Administrator issue. He asked why this information could not have been shared.
Chairman Glennon noted there is a concern with emailing things to Councilors because it becomes a quorum creating a meeting.
Councilor Bergeron asked how many Councilors knew the topic of discussion for tonight.
Vice-Chairman Carr noted she and Chairman Glennon knew.
Chairman Glennon added Councilor Kwaks knew also because it involved her.
Vice-Chairman Carr noted she did not feel she or Chairman Glennon had preconceived notions of what needed to be done. This issue had troubled them both. This was not their decision, but needed to be a discussion and decision of the Council. She felt this was a big issue in Town and the Council needed to be careful how it was handled. She suggested Councilors treat each other with more respect.
Councilor Ploski felt the Town Administrator needed to be directed to follow procedures as written and not make judgment calls regarding Town Council issues.
Motion: To instruct Administrator Wojnowski to follow procedures as written. If a judgement call needs to be made, the Town Administrator should be in touch with the Town Council Chairman who would then contact the Council.
Motioned: Councilor Ploski
Seconded: Vice-Chairman Carr
Administrator Wojnowski explained he does follow the Town Charter on a daily basis. It is clearly spelled out what the roles and responsibility of the Town Administrator is. There are many times where there is a cross of lines as it relates to Town Council members infringing upon Town Administrator responsibilities. He feels he needs to be bolder in stating the tasks that are his job. He has no desire to become involved in Town Council issues that do not relate to his job duties.
Councilor Bergeron didn’t feel it was necessary to instruct Administrator Wojnowski to follow the Charter. He felt Administrator Wojnowski knows what his job responsibilities are and he felt those responsibilities were followed as spelled out in the Charter.
Councilor Minutelli explained he would abstain from voting on this motion because he feels the issue is moot. He felt Administrator Wojnowski does follow the provisions as set forth in the Charter and feels Administrator Wojnowski did his job on this issue consistent with the terms of the Charter. He disagreed with Councilor Ploski’s analysis primarily because it is based on an entirely different factual scenario than the Charter ponders. He agreed a signed petition being brought to the Town Administrator for legal review would be improper but this is clearly not what happened this time.
Councilor Ploski noted the Charter sets forth procedures for a signed petition. This document was not a valid petition and therefore legal review should not have been rendered. The perception of this situation is that Jennifer Jarvis received free legal advice on an action being taken against the Town. The petition is against a Town Councilor and therefore is against the Town. He did not feel the procedures as set forth in the Charter regarding petitions had been followed. He felt the Town Administrator should have told Jennifer Jarvis a legal opinion could not be obtained because a validated petition had not been submitted.
Councilor Kwaks noted she agreed in part with both Councilor Ploski and Councilor Minutelli. She did not want to hinder the Town Administrator’s ability to do his job. She felt Town Administrator Wojnowski knew to follow procedures but felt he did not do so in this instance. She suggested the Council consider taking a vote as to whether they felt the Town Administrator had followed procedures in this instance.
Chairman Glennon noted he is not convinced Administrator Wojnowski broke procedures. He felt it was more of a perception problem. He questioned whether the motion should be made for the Town Council to direct there be no further contact between Administrator Wojnowski, the petitioners and legal counsel since he is so closely involved. He also suggested the Council allow the Town Council Chairman to have conversations with legal counsel. He stated the intent is to protect the Town and Town Administrator. He noted the Council governs itself.
Councilor Ploski realized the wording of his motion may have been overstated. He apologized for the overstatement stating the motion as worded indicated the Town Administrator never follows procedure. He felt procedure had not been followed in this instance.
Councilor Ploski rescinded his motion.
Vice-Chairman Carr rescinded her second.
Councilor Bergeron asked whether Councilor Ploski felt procedure was broken or not. He felt this meeting was not necessary.
Chairman Glennon noted that is Councilor Bergeron’s opinion, but there were others present who felt differently.
Councilor LaBranche stated based on the Chairman’s recommendation, he does not see the need for the Town Administrator to not be involved in discussions with the petitioner, residents or legal counsel as Administrator Wojnowski would not have a vote in the matter. He felt the Town Administrator had done his job.
Motion: To adjourn at 7:39pm.
Motioned: Councilor LaBranche
Seconded: Councilor Bergeron
Councilor Minutelli stated the Council has had a discussion with the Chairman’s contact with the Town’s attorney. He explained Section 4.4 of the Town Charter states the Council will vote whether to render a legal opinion. He stated the Council was discussing following procedures as set forth in the Charter.
Chairman Glennon asked for the location within the Charter where it states the Chairman cannot speak with legal counsel. He explained there have been several former Town Council Chairmen who have contacted legal counsel without direct consent from the Town Council.
Councilor Minutelli explained whatever occurred in the past is the past. If it was wrong, it should be corrected now. The words of the Charter are clear.
Councilor Ploski noted Councilor Kwaks had indicated at the beginning of the meeting there was additional business to take care of tonight. He respectfully asked for the motion to be rescinded so the other business could be handled.
Councilor LaBranche stated he would not rescind the motion and asked for a vote on the motion.
Chairman Glennon asked Councilor LaBranche to remember in the future that he did not give a Town Councilor the opportunity to speak.
Vote: 4-3 Motion carries
Councilor Kwaks Nay
Councilor Bergeron Aye
Councilor LaBranche Aye
Councilor Ploski Nay
Councilor Minutelli Aye
Vice-Chairman Carr Nay
Chairman Glennon Nay
Chairman Glennon noted the motion failed.
Motion: To enter into Non-Public RSA 91-A:3 II (a) Personnel at 7:44pm.
Motioned: Councilor Ploski
Seconded: Councilor Kwaks
Vote: 7-0 Motion carries
Councilor Kwaks Aye
Councilor Bergeron Aye
Councilor LaBranche Aye
Councilor Ploski Aye
Councilor Minutelli Aye
Vice-Chairman Carr Aye
Chairman Glennon Aye
Motion: To leave Non-Public RSA 91-A:3 II (a) at 7:54pm and seal the minutes because the release of information would adversely affect the reputation of someone other than the Town Council.
