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February 26. 2014 8:26PM

Attorney: Derry board's contract vote is not valid

DERRY — The town attorney has determined that a recent motion to approve a collective bargaining agreement between the town and a union didn’t pass because it lacked a majority vote.

The decision comes after Councilor Mark Osborne, with support from Councilor Al Dimmock, contested the 3-2 vote by the council on Feb. 18 to approve the agreement between Derry and 29 technical and management employees.

In the meeting, councilors voted, 3-2, with Councilor Phyllis Katsakiores abstaining, to approve the new contract that was developed after about three years of negotiations between the town and the union.

Osborne and Dimmock voted against the plan. Council Chairman Michael Fairbanks joined Councilors Neil Wetherbee and Brad Benson in voting for the contract.

Osborne said in an email to Acting Administrator Larry Budreau and Fairbanks that the vote was illegal because of language in the town charter, specifically section 5.9 (B). In essence, the motion to approve the contract could pass only if “adopted by a majority vote of those present,” Osborne said.

Katsakiores was still counted as being present or sitting at the meeting, even though she abstained. So, there were only three of six councilors voting in favor of the contract, not a majority, Osborne said.

If the vote wasn’t overturned, Osborne said he would not hesitate to take the town to court.

In a memo Tuesday to Budreau and Fairbanks, attorney Brenda Keith, of the law firm of Boutin & Altieri, said a majority vote is required in certain situations. A majority vote is defined as “a majority of those present with a quorum of the body present,” as stated in Section 10.8(E) of the town charter.

Keith also referred to section 5.9(B) and said since the council was considering the cost items of the contract, the vote is considered to be an “appropriation” vote and would require a majority.

Budreau said in an email Tuesday to councilors that Fairbanks had asked him to communicate that the motion to approve the agreement with the Professional Administrative and Technical Employees or P.A.T.E, didn’t pass. He said he would also inform the union.

Also in the email, Budreau said that he had questioned during the meeting “whether or not approving the contract should be considered an appropriation.”

As for what happens next with the union, Budreau said in an email Wednesday, “I anticipate that the town’s management and the Town Council will meet to take stock of this council decision and develop a collective bargaining strategy for the future.”

In light of the upcoming election, this next step probably won’t happen until next month, he said.


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