Nashua aldermen circumvented tax cap rather than overriding it, says city's attorneyBy KIMBERLY HOUGHTON
Union Leader Correspondent
August 11. 2017 2:54PM
NASHUA — The attorney for Alderman Dan Moriarty, one of two individuals suing Nashua officials because of an accused spending cap violation, said Friday in court that the city “played a numbers game to act like they were complying with the law.”
“This year’s budget cannot pass legal scrutiny,” said attorney Seth Hipple, maintaining that the $301 million fiscal year 2018 budget adopted by aldermen in June does not adhere to the city’s spending cap provisions.
Nashua’s counsel, attorney Steve Bolton, argued that the civil lawsuit brought by Moriarty and former Alderman Fred Teeboom is moot because the budget was approved with a vote of 10-5, explaining that even if the budget does actually override the spending cap, which he argues it does not, 10 votes would still be necessary for the override to take place — the same number of votes that were obtained to adopt the budget.
“The fact is, they have the power to do this … these academic questions are not worth the court’s time,” Bolton told the judge during a hearing at Hillsborough County Superior Court.
Moriarty and Teeboom previously filed separate civil lawsuits against the city, both of which have since been consolidated by the court claiming officials violated the city charter since approving an ordinance earlier this year that removed $9 million in wastewater funds from the general fund budget.
Despite the lawsuit, aldermen still adopted the new budget. Although Teeboom and Moriarty claim the budget is $9 million over the spending cap, the city attorney and the mayor disagree and claim it is under the spending cap by more than $1 million.
“The money that was exempted was not part of the two allowable exemptions,” said Hipple, claiming only capital expenditures and debt service may be exempt from the spending cap.
Bolton argues that the wastewater system funds, all raised through fees, do not impact taxes and can therefore be exempt from the spending cap. In an effort to conform with state law, Bolton said aldermen removed all wastewater fund expenditures from the cap calculations.
“The charter provision limits spending, not taxes,” maintained Hipple, stressing that it is irrelevant whether the funds will or will not raise taxes because the city still exempted the funds, and without an actual vote on whether to override the cap.
If this action is permitted, Hipple argued that in the future any line item can be removed from the combined annual municipal budget and therefore be exempt from the spending cap, which he said is not the intent of the charter.
“Even if they are right, this budget resolution was within the power of 10 members of the Board of Aldermen to pass,” Bolton told Judge Charles Temple, adding that regardless of whether the ordinance to move the wastewater funds was proper, the result was the same with a supermajority vote to pass the overall budget.
Hipple argued that aldermen can’t do whatever they want with 10 votes, contending there is still a process and a city charter to follow.
Bolton is asking the court to dismiss the case. Hipple is requesting that the court allow the case to continue and that another hearing be held on Teeboom’s petition for injunctive relief.
Moriarty was not present for Friday’s court hearing. The judge is taking the matter under advisement, saying he will make an expedited decision on the city’s motion to dismiss.