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Playing by the rules

Alternates reminded of the limits to their authority

March 04, 2009
WAKEFIELD — Serving as an alternate member of a town board comes with rules and procedures, according to the Local Government Center, the NH Office of Energy and Planning, and the towns own attorney who recently reviewed those rules with the planning board.

Where alternate members are seated matters, too, as the public may perceive an alternate member seated with the regular board at a conference table as having equal voting powers when they don't.

For the past couple of months, planning board alternate members David Mankus and Jerry O'Connor have been seated at the same table with members Rod Cools, Al Huntoon, Donna Faucette, Peg Stevenson and Selectman's Representative John Blackwood. At the planning board's April 2 meeting, Town Counsel Richard Sager said in past practice, alternate members would sit with the audience. If a regular member were absent, the chair would appoint an alternate to sit with the board and participate. Alternates should not participate unless they are seated when applications are being considered, but they are encouraged to attend meetings and participate in general. Sager advised that the town's rules of procedure for the board be amended to mirror NH law, to clarify that when a formal public hearing is held only five members should be at the table. He said alternates and disqualified members should be in the audience and only members and alternates appointed to sit in a regular member's place should be at the table. He said the board can direct Town Planner Kathy Menici to make the changes and the amended rules can be adopted at a future meeting.

According to the April 2 meeting minutes, alternate member Mankus said he would like to keep things the way they are because if alternates are seated with the public they would not get to see the documents that are brought by applicants, such as the plan brought by a resident that night, and that would limit their understanding. Chairman Cools said the board would make that decision.

From the audience, Tom Dube, whose request to be named an alternate was denied, said he did not see the harm in having everyone up front. Cools said it could be intimidating to an applicant to have too many people up front, adding that when he was an alternate, he sat with the audience. Vice Chair Donna Faucette added later that for the three years she served as an alternate, she sat with the audience. She also noted that alternate members also receive information packages ahead of time so they have the same information as regular members. Faucette added that alternate members spoke only during the public comment portion of the meetings. Member Peg Stevenson said she served on the board in another town, where alternates always sat with the audience.

Sager said an applicant should know the five members that would be voting on an application, and compared the experience with facing five judges instead of one during a trial.

From the audience Judy Nason asked if the alternate seated for a regular member for a hearing continue to sit on the matter if it was continued. Sager replied it was preferred that the alternate remain until a decision is made, but state law does not specify; however the state planning office recommends the alternate continue to sit on the application to maintain consistency.

What the experts say

The New Hampshire Local Government Center has a two and a half page advisory on the role of alternate land use board members, published in the July/August 2007 edition of Town and City magazine, which Sager distributed to the board.

The articles states that alternate members are "the unsung heroes of local land use boards," and that planning and zoning boards of adjustment may be authorized to appoint standing pools of up to five alternate members of each board. "Alternates are vital to the property functioning of these boards because conflicts of interest often disqualify one or more members from participating in an application of appeal." The articles further states that alternates should be active, but should not participate in discussion and voting all the time.

"Unless and until they are designated to sit in place of an absent or disqualified member, alternate members have no authority to participate as board members. During a hearing or other formal proceeding involving an applicant, alternates should not participate in board deliberations, ask direct questions of applicants, or vote on applications or appeals. It is important to avoid confusion about who is a participating member and who is not at any particular time, which means that alternate members should not sit at the table with the board during hearings or other formal proceedings unless they are designated to sit in place of a member. Although alternates should be encouraged to attend all meetings, and perhaps join discussions at work sessions or other meetings where no formal action is to be taken, they should sit with the public unless they are sitting in place of a member."

In addition, Senior Planner Chris Northrop of the Office of Energy and Planning set guidelines for alternate members used by planners across the state. He, too, noted that alternates have limited powers.

"Encouraging alternates to attend and participate right along with the board is a good thing and can be a valuable way to prepare people to eventually become full members. However, their participating needs to be limited. For work sessions where there are neither formal votes nor any binding action on the part of the board, full integration is fine. During a public hearing, the full board should be clearly defined as those 'at the table.' Inactivated alternates can be up front or gathered together elsewhere in the room but the applicant, the abutters and the public should clearly understand who is part of the decision making process, and who is not."

"I would strongly discourage inactivated alternates from participating in the board's deliberative discussions and, as everyone has pointed out, not allow them to vote (nor presumably to move or second motions," stated Northrop.

"Again, involving alternates in the meeting to meeting business of the planning board is good practice but the formal boundaries of the approval process must be observed," he stated.

Tilton School
Martin Lord Osman
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