01:00 AM EDT on Tuesday, June 20, 2006

BY BETHONIE BUTLER
Journal Staff Writer

EXETER -- Members of the Town Council are facing two Town Charter violation complaints, one of which is pending in the state Supreme Court.

The first stems from a January 2005 Town Council meeting when three of the five council members -- President William Devanney, Vice President Diane Allen and Wayne Cross -- voted to reinstate the council's stipend.

At the Financial Town Meeting in 2004, which planned the town's budget for the 2004-2005 fiscal year, Devanney motioned to "level fund" a number of budget items, including the stipend amount. This meant that no increases were to be made to the amount, which the previous council had set at zero.

Last July, Frank DiGregorio, a member of the Planning Board and the local watchdog group Exeter 1st, charged that when the three council members voted to reinstate the stipend in 2005 they were in violation of the charter, which states that "the members of the council shall receive such compensation as shall be fixed by the Financial Town Meeting."

According to the minutes of the Jan. 3, 2005, Town Council meeting, newly elected Vice President Diane Allen motioned to reinstate the Town Council stipend at $1,360.05 per month for six months for the council as a whole -- as set by the 2002 council.

The minutes show that dissenters pointed out that the 2004 council had voted not to take a stipend and that the money could be used for other "line items."

The current council took office in January 2005 and at its first meeting Cross, Allen and Devanney voted in favor of the stipend.

Councilmen Ross Aker and Robert Johnson refused their stipends and donated the money to town programs.

In October 2005, the three who voted for it were fined $250 each by the state Ethics Commission -- the result of a complaint filed that May by resident Warren Halstead.

Devanney noted that the three council members had returned the stipend after ethics issues were raised and also requested an advisory opinion from the Ethics Commission around the same time as Halstead's complaint.

Devanney acknowledged that the reinstatement of the stipends was a violation, but of state ethics law -- not, he said, of the charter. He said that the previous council had violated ethics laws as well, by voting to not have a stipend.

"The stipend issue is governed by state law," Devanney said. "The council is never supposed to address their own stipend. We did violate that, unknowingly."

Devanney said a town manager, a position Exeter's government does not have, would generally clarify such matters.

DiGregorio has continued to pursue the charter violation complaint because, he said, according to the Town Charter, council members who willfully violate it "shall be deemed to have forfeited his or her office, subject to the confirmation of such forfeiture by the vote of a majority of the members of the Council."

But because Devanney, Allen and Cross constitute a majority of the council, there has not been a way for the council to vote on whether any of them should be removed from office.

With no clear cut rules on how the Town Council should handle such a decision, DiGregorio sought a resolution in Washington County Superior Court.

Last month, Superior Court Judge Allen Rubine ruled that the court had no jurisdiction and referred it back to the council, suggesting the council invoke a "Rule of Necessity," in which one of the accused would be deemed "least guilty."

This would allow the council to have a quorum to vote on whether the other two violated the charter and should be removed.

Town Solicitor James Marusak has filed an appeal on behalf of Devanney, Allen and Cross to the state Supreme Court.

Marusak said the appeal is legally appropriate, because it's questionable as to whether the Superior Court has any jurisdiction in the matter.

But Marusak would not comment on the likelihood of any of the three council members being removed from office.

"That's something that's now in the court," he said.

DiGregorio has filed another alleged violation of the charter against Devanney and Cross after they, along with Allen, voted to set July 5 as the date for the referendum on a controversial tax freeze for the elderly passed last July.

After Exeter 1st presented a petition with more than 500 signatures for a repeal of the tax freeze, the council had 60 days to rescind the ordinance before moving to a referendum.

The council opted for the referendum, with the charter allowing 180 days after the petition was certified by the Board of Canvassers for the referendum to be scheduled.

The petition was certified in January, giving the council roughly six months to schedule the referendum. In addition to the July 5 date being controversial because of its proximity to the July 4 holiday, DiGregorio said it violates the charter because it moved the referendum to the next fiscal year. He said there was no money appropriated for the referendum to be held in the 2006 fiscal year because the town had not yet had its Financial Town Meeting.

According to a letter DiGregorio filed with the town clerk's office in March, July 5 was set at a Town Council meeting on March 6. The Financial Town Meeting for the following year's budget was on May 16.

But Devanney said there is always money set aside for referendums.

DiGregorio said he left Allen out of the second charter violation allegation, despite her vote to schedule the referendum on July 5 because she is "new to politics" and he also wanted to circumvent the challenge of not having a council majority.

DiGregorio has also filed a complaint with the state Ethics Commission, related to both of the charter violation investigations, questioning whether the three council members should have voted or discussed stipend or referendum issues while cases were pending.

DiGregorio acknowledged that earlier this month, Devanney and Cross did recuse themselves from discussion on the July 5 referendum, but said they should have done that in previous meetings.

Ross Aker, who has spent the last six years on the Town Council, said the cases are draining money and resources from the town.

"This case has probably gone well over $3,000 of town money," Aker said. "It gets a little frustrating, you can't get anything done."

Town officials said they are unsure of the exact cost of the cases so far, but Devanney said legal fees are accounted for in the annual budget up to a certain point.

A total of $65,000 for legal fees was approved for the 2005-2006 fiscal year, which ends on July 1. The proposed budget amount for legal fees in the next fiscal year is $75,000.

The cases have cost DiGregorio as well, though he has not totaled the expenses.

"I don't know," he said. "I don't want to know."