You may have heard about the discussion over whether the Town should reimburse officials for mileage when they're doing Town business. During the 2010 Town Meeting citizens voted down a proposal to set aside $1,500 for mileage. Nonetheless, a couple of Orange officials have requested reimbursement. The Select Board asked our town attorney, Bernie Waugh, whether the town's vote restricted the Board from paying for mileage. His response was that the Board can pay mileage if it can find the money.
Bernie's full response follows. Let's talk about this in the Discussion Board.
There are two reasons why I don't think the 2010 vote has any legal effect today:
1. As a general rule of both parliamentary procedure, and also of law, the defeat of a warrant article means nothing at all and has no binding legal effect - it's simply as if the article had never existed.
Many people mix this up with the so-called "zero-out" rule in RSA 32:10, I(e). If an appropriation is "zeroed out" that means that nothing can be spent for the purpose which was zeroed out - that expenditure is positively prohibited. But the wording of 32:10, I(e) limits this "zero-out" effect to situations where: (1) a purpose which appears in the operating budget (or warrant article with multiple line items) is "deleted" by the voters (as an amendment to that budget); or (2) Where the amount appropriated for any line item or warrant article is reduced to zero. Simply defeating an article doesn't have this same legal prohibition effect. And that makes sense, because there are so many reasons why an article might be defeated - one example being because the town's officials might point out that it is unnecessary because the amount is already in the operating budget.
[Granted, if you have, say, a separate warrant article to raise and appropriate $60,000 for a fire truck, and that article is defeated, then you probably can't buy the fire truck because (1) you don't have the money, and (2) even if you had a surplus arising from somewhere else and did have the money, it is unlikely that you would have a appropriation line item in the operating budget which could be construed as including a new fire truck. But that result is simply because the voters failed make and appropriation action, not because they voters positively voted to prohibit money being spent on something.]
If the voters had truly wanted to positively prohibit any money at all from beign spent on mileage, the way to do that, consistent with RSA 32:10, I(e) would have been to amend the $1,500 to zero, and then PASS the article in that amended form.
2. The even more compelling reason why the 2010 vote (or failure to vote) has no legal effect in 2012 is that as a general rule (subject to a few exceptions), one town meeting cannot bind future town meetings, and the appropriation votes taken at the annual meeting only affect the year in which that meeting is held. This is certainly true of any "zero-out" type of vote. So even assuming (contrary to fact) that the defeat of the article in 2010 could be construed as a positive prohibition, it would only have impacted expenditures during 2010, and has NO EFFECT AT ALL on 2011 or 2012.
3. Therefore, in my opinion, there is no legal prohibition on payment of mileage, and the Selectmen have the legal authority to pay mileage out of the department budget in pursuit of whose function the mileage was accrued ... ASSUMING this can be done without overspending your overall budget (something I offer no opinion on, being unfamiliar with it).
Please let me know if you would like to discuss further.
Sincerely,
Bernie Waugh
Friday, April 27, 2012 at 11:30AM