Common Sense For New Hampshire

You would think that if you’re repealing an ordinance that had two separate legal actions being taken against it, you would make sure to do it in a legal way.

Not in Belmar.  These guys are good at politics, but as we’ve seen more times than I can count not too good at following the law.

In today’s Coast Star and reprinted with the permission of the Coast Star:

BELMAR — Last Thursday’s council vote to rescind the responsible bidder ordinance may have been invalid, according to the law firm suing the borough, which is alleging a quorum was not present to handle borough business.

Now, the lawsuit filed on Sept. 23 on behalf of a group of borough residents by the law firm of Pringle, Quinn, Anzano, P.C. still remains, along with a petition filed pertaining to the same ordinance which the borough has yet to act on.

During the meeting of the mayor and council on Nov. 5, Council President Brian Magovern and Councilwoman Janis Keown-Blackburn voted — on second hearing — to rescind ordinance 2014-01.

The decision to rescind the ordinance is an answer to a lawsuit filed against the borough in September, alleging that the ordinance in question was unlawfully adopted, and the mayor had a conflict of interest pertaining to the ordinance.

The outcome of a petition seeking to amend that ordinance is also still in question, as it will be impossible to amend the ordinance according to the demands of petitioners if that ordinance is fully repealed.

Mayor Doherty, who had previously recused himself from the issue, did not vote on Thursday night, and neither Councilman Jim Bean nor Councilwoman Jen Nicolay were present to vote.

Two votes does not constitute a quorum in Belmar, according to attorney Edward R. Bonanno, of Pringle, Quinn, Anzano, P.C., and as such, the lawsuit has not yet been dismissed.

During the first reading of the ordinance, at the meeting prior, borough attorney Michael DuPont explained that an agreement had been made to dismiss the lawsuit once the ordinance was fully repealed.

As of this Tuesday, Mr. Bonanno said that had not yet occurred.

“We were waiting for a final vote from the borough council and at that point, the judge would act to dismiss the lawsuit,” he said. “An issue has come up, where the mayor and council had the vote last week, and the mayor recused himself — and we were glad he did that — but two [other council] members weren’t present.”

“Our concern is that, under state law, as well as under the [borough] ordinances, we believe they did not have a sufficient number of people voting,” he said.

A majority would have been three, Mr. Bonanno said, and he believes the council will need to vote again to legally rescind ordinance 2014-01.

“I’m sure the council may have a different perspective,” he said. “Our perspective is that the vote was not valid. They’re going to have to vote again.”

In the borough’s book of ordinances, Chapter II.2-3.c, reads, “a majority of the whole number of the Borough Council shall constitute a quorum for the transaction of business.”

Resident Dave Schneck, of C Street, first raised questions regarding the presence of a quorum immediately prior to the council’s vote last Thursday.

After questioning whether or not two members of council constituted a quorum, Councilman Magovern responded, “We had three, that’s a quorum, the mayor had to recuse himself, so we have a vote of two.”

Acting borough attorney Edward Washburne confirmed the councilman’s answer, and said that it did, in fact, constitute a quorum.

Borough attorney Michael DuPont was not present for the meeting.

“The answer is yes, the vote can go forward,” Mr. Washburne said. “I’m unaware that Belmar has an ordinance preventing a vote by a simple majority.”

Mr. Schneck said it was his understanding the council would need at least 50 percent of members of the council present in order to vote.

“There is 50 percent present, just one person has recused himself,” Mr. Washburne responded.

As of yesterday afternoon, Mr. DuPont said a quorum was present at the meeting, and as such expects the lawsuit to be dismissed according to the initial agreement made in court.

He noted he had not yet heard anything from the plaintiffs pertaining to the meeting.

Warning!  Conspiracy theory ahead! 

Here’s a crazy thought:

Days before the meeting, Jim Bean notified the Administrator and Council that he had to attend his son’s promotion ceremony at the Junior Civil Air Patrol.  Knowing that without Bean there and with situation being that he had to recuse himself on the repeal ordinance, why didn’t Mayor Doherty ask Jennifer Nicolay to skip the “So You Think You Can Dance” show at the Count Basie Theater that night and come to the meeting so they would have the quorum they needed?

Maybe Doherty thought nobody would notice that they didn’t have a quorum and that Pringle would withdraw the lawsuit and the petitioners would withdraw the petition.  Then afterward he could say that they just discovered their mistake and that, gosh darn it, the responsible bidder law is actually still in effect but with no lawsuit or petition against it anymore!

I hope I didn’t ruin it.