Nottingham’s Legal Expenses Far Exceed Budget

For the past two years Nottingham has budgeted $30k for legal expenses. In 2023 this budget was far exceeded. The 2023 Town Report shows $83,811 was spent. 

So far in 2024, over $51k has been spent. That means the town is already $21k over budget with four months in the year yet to go. That extra spending has to come out of other parts of the budget - a budget that is already unusually tight due to the voters’ rejection of the town’s proposed 2024 budget, forcing the Board of Selectmen to adopt the default budget and to spend substantially less than the board originally planned to.

Where is the town’s legal budget going to?

Vilchock Litigation

By far the greatest amount has been spent on events leading up to the termination of Nottingham’s former Fire Chief and defending the Board of Selectmen in court from the former Chief’s attempt to have the board’s decision overturned. This spending has three major components:

• Defending the board in court: $42,014.28
• Investigator’s charges: $22,953.40
• Legal consultations about the termination process: $19,094.00

Total: $84,061.68

In 2023, the town's legal budget would have exceeded by only $8k were it not for expenses associated with the termination of the Fire Chief.

Request to Right-to-Know Ombudsman

A related cost to the termination of the Vilchocks is associated with my request to have the state’s Right-to-Know Ombudsman review the redactions in several of the documents the Town had released in response to right-to-know requests. Such a review would entail no out-of-pocket costs to the town. However, the Board of Selectmen decided to have the Town Attorney attempt to prevent the Ombudsman from reviewing the redactions, incurring $5,919.00 in legal fees. 

This attempt failed. The Ombudsman ruled that the redactions should be reviewed. The review concluded that the documents were redacted correctly. 

Town Beach

Legal fees regarding the access to Town Beach via Town Beach Road were $1,229.00. The access issues were presented to the Board of Selectmen during their non-public session on February 5, 2024. The first work the Town Attorney did on this project was on March 28, 2024. This  delay may have been a contributing factor to the town being unable to open the beach for Memorial Day weekend. The board made this decision on May 23. The re-opening of Town Beach was announced on July 3. 

Anything Else Interesting?

My review of the invoices turned up nearly $10k in 2023 expenses associated with litigation that the public was never informed of. I inquired about this. I was told “there was conflict between a town subcontractor and a property owner during winter road maintenance.” As this litigation involves the reputation of other parties, town government is not free to discuss it publicly. 

Another interesting thing in the invoices is that somebody in town government had an email exchange on February 7, 2023  with the Town Attorney about the complaints against the Fire Chief.

This would appear to be associated with this email chain that was made public last year via a right-to-know request.

Photo byDoug Bates

At the hearing, Selectman Morin testified that he was unaware of any issue with the Fire Chief prior to the March 20, 2023 non-public session. So, this correspondence with the Town Attorney was not with the board; it was with either the Interim Town Administrator and/or Chairman Donna Danis. It’s unclear whether the correspondence was ever shared with the board. Based on Selectman Morin’s testimony, if it was shared with the board it was shared after March 20, 2023. 

There may be some connection between this and the events at the May 1, 2023 board meeting. The board needed to vote to fill the vacancy on the board caused by Tyler Eaton’s resignation. Donna Danis and Matt Shirland presented themselves as candidates. Selectman Bartlett urged the board to choose Shirland. Danis, who had been elected to the board in three consecutive terms, serving from 2014 to just a few weeks earlier, received no votes. If on May 1 the other Selectman had learned that Danis knew as early as February 7 that there were serious issues about the Chief, but those issues were not shared with the other members of the board until March 20, it would be reasonable to expect those other members of the board to lose confidence in the former Chairman.

The Town Attorney spent two hours on February 7, 2023 researching and providing advice about how to go about the anticipated replacement of the Fire Chief. Whether that research considered the possibility that the board should simply not re-appoint Jaye Vilchock as Chief has not been disclosed. 

We do know that Interim Town Administrator John Scruton withheld the re-appointment papers from being presented to the board. Why this was done is unclear. Scruton did not remember discussing with the board a decision not to re-appoint the Chief. 

The board had no restrictions on its power to refuse to re-appoint the Chief. Wouldn’t this have been the least costly way to terminate the Chief?

Based on this invoice, it appears that the only option presented to the board was to conduct an investigation.

Perhaps the Town Attorney was unaware that the board had the authority not to re-appoint the Chief. According to the invoices, a sizable legal bill was created. And it was only after this - about 25 days after the March 21 conference with the Town Attorney - did the Town Attorney review the Fire Department’s bylaws.

Even after this, somehow the fact that the bylaws say that the board appoints the Chief and the fact that the board had not made its 2023 appointment of the Chief was not noticed when there was still time to act on those facts. 

In early April the board could have announced that the bylaws give the board the power to decline to appoint the individual the department has elected. As the board had not yet acted on the election results, the board could decide to use its authority to decline to re-appoint the Chief. That would have ended the matter. There would not have needed to be an investigation, nor would there have been a termination that the Chief could have challenged in court.  

Although there were many people who could have been aware of these facts and had some responsibility in this matter - the Town Administrator and the Selectmen - it would seem that the person with primary responsibility was the Town Attorney, and it would seem that the Town Attorney missed this. 

The person with secondary responsibility would have been the Town Administrator. John Scruton, who knew long in advance that the Chief was likely to be fired and who withheld the re-appointment papers from the board, should have been able to connect the dots here, but it appears that he did not. The new Town Administrator, Ellen White, walked into this drama as it was unfolding. One could not have expected her at such an early date in her tenure to have known. 

Even if the board did not take the route of using its legal authority to decline re-appointing the Chief, it’s worth questioning whether an investigation was ever needed. At the hearing, the judge concluded,

The Court finds that the plaintiff ‘lost the confidence … of those who served under him’ … and his ‘course of conduct in this entire matter rendered him unfit for the position’ of NFRD Chief…. This compels a finding of substantial cause for his dismissal.

As I pointed out shortly after the Chief was fired:

Even if the six complainants were all lying, that six employees out of a department of 28 would make such serious allegations means that the department was dysfunctional.

RSA 154:5 says:

…the tenure of office shall depend upon good conduct and efficiency. The chief … shall be technically qualified by training or experience and shall have ability to command firefighters and hold their respect and confidence.

If six out of 28 employees complained about the Chief, it would appear that the Chief had lost the confidence of a sizable portion of the staff. This fact alone would be grounds for termination. The board didn’t need an expensive outside investigator. All it needed was a confidential survey of the employees of the Fire Department asking, has the Chief lost your respect and confidence? Presumably the board could count on at least six employees to agree.

And even if the board felt that terminating the Chief based on the loss of confidence of his staff was risky, why didn’t they at least leverage this to persuade the Chief to retire? Wouldn’t this have been cheaper for the town? As well as a lot less traumatic.

For that matter, why was there no attempt to remediate the situation so that confidence could be restored? Wouldn’t that have been cheaper for the town? 

Even the investigator did not conclude that Vilchock needed to be fired. She gave recommendations for what the town should do if the board decided to fire Vilchock or if the board decided not to. The public, however, does not know what those recommendations were because they were redacted from the report. Now that Vilchock has been fired, it would be interesting to find out whether the town is following what the investigator recommended the town do in the case that the board decided to fire the Chief. The taxpayers spent a lot of money to obtain those recommendations.

Presumably the answers to some of these questions can be found in the correspondence from the Town Attorney to the board. This correspondence, however, is invulnearable to right-to-know requests. It is protected by attorney/client privilege. This is a privilege granted to the client, not the attorney. The board is free to make this information available. 

Speaking of the Town Attorney, at the board’s August 19 meeting it approved the creation of a draft request for proposals for legal services. It received this draft at the September 3 meeting. The board authorized that the request for proposal be posted, with a response date of October 18.