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December 26. 2012 11:21PM

Auburn dispute over road work details still simmering

The dispute over when the town of Auburn must use police officers for road work details and when the town can hire a private company has been put into a district court judge's hands.

The attorney for Advanced Excavating and Paving, the defendant in the case backed by the Auburn Board of Selectmen, presented a motion for dismissal to the 10th Circuit District Division Court in Candia Dec. 17. The police department filed an objection to the dismissal.

Judge David G. LeFrancois has not yet ruled or scheduled a motion hearing. Nicholas Brodich, attorney for the defense, said he'd be shocked if a decision were not reached within "a week or two."

The case relates to the argument between the police and Auburn's Board of Selectmen over the town's need and use of police details. There is a paragraph in Auburn's road work regulations that allows the town and the road work companies it hires some leeway in how they handle traffic at work sites - exempting them from most requirements as long as minimum traffic control is maintained.

What is in dispute is when the town is required to call in a police detail or private, much cheaper, traffic flaggers - $22 an hour compared to $35.

The police issued the town's road work contractor, Advanced Excavating and Paving, a court summons on Sept. 13 for the use of flaggers on Rattlesnake Hill Road, an area police argue requires a detail. Selectmen later voted in support of the company and to pay for a portion of the legal expenses.

In November, the police union filed an Unfair Labor Practice complaint with the New Hampshire Public Employee Labor Relations Board, requesting the ordinance be removed from the town's books.

During the discussions when the new ordinances were developed, police had requested their detail fees be increased from $35 an hour to $38. The selectmen cut a deal with them, keeping wages at $35, but specifying high-traffic roads which would require a police detail - including Rattlesnake Hill Road.

According to Town Administrator Bill Herman, however, even if a violation had occurred, a summons was not the way to go.

"Even if they're in violation of the ordinance as the department reads them, there's nothing they can do about that," Herman said. "Everything else in the ordinance, including the department's ability to cite them and fine them, the town and Advanced Excavating are exempt from."

"I think what they should have done," Herman continued, "is to come before the Board of Selectmen. The ordinance says if there is any matter of dispute, the selectmen are the arbitrators of the dispute and the ultimate decision."

While Herman notes that Auburn Police Capt. Gary Bartis notified the board of a later incident, the department never consulted the selectmen before the summons was issued. He also noted that the action taken by the union was "in the appropriate forum."

Both sides have expressed cautious optimism for their case.

"We thought we had a valid complaint to bring before the court," said Sgt. Charles Chabot. "We did what was expected of us, and we'll let the judge decide on the merits."

"There's really no facts to dispute," said Brodich. "Was Advanced Paving on Rattlesnake Hill Road? Yes. Did they have a police detail? Did they need one? From a plain reading of the statute, no. ... [But] there's an element of chance when you have another person looking at the facts who can come to different conclusions."

For Brodich, the "hard part to get around" is another part of the ordinance which notes that in the case of a dispute, the selectmen are the designated arbitrators.

"They've come out in spades saying, 'No, no, no, the police are misconstruing this statute,' but it's falling on deaf ears," he said.

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Brendan Clogston may be reached at bclogston@newstote.com.

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