District Agreement Governs Solid Waste Management District's Business Affairs

Franklin v. Town of Newport
Franklin v. Town of Newport
No. 2004-211
Tuesday, November 30, 2004

In Franklin v. Town of Newport, the Supreme Court held, that in connection with the Sullivan County Regional Refuse Disposal District: the Board of Selectmen may appoint all representatives and alternates to the regional district governing body; and the Town Manager is permitted to simultaneously serve as the Town's representative to the District.

Created in 1981, the District, which is a regional entity comprised primarily of Sullivan County municipalities, provides refuse disposal facilities for its member municipalities. Pursuant to the terms of the District Agreement, each member is entitled to a certain number of representatives on the Committee. See RSA 53-B:6-a. The Agreement expressly states that a town's Board of Selectmen "shall" appoint all representatives and alternates.

Notwithstanding the terms of the Agreement, Newport voters approved an article instructing the BOS to appoint the plaintiff, Peter Franklin, to the Committee "as a full voting member."  Subsequently, the BOS appointed the Town Manager, and not the plaintiff, to this position. The plaintiff sued the Town of Newport, alleging the appointment was unlawful.

On appeal, the Supreme Court examined the language contained in RSA Chapter 53-B, which governs solid waste management districts. RSA 53-B:6-a provides that a solid waste management district's "business affairs and actions  . . . shall be conducted and governed pursuant to the terms, conditions, and provisions of its district agreement."  (Emphasis added). RSA 53-B6-a, III requires that such agreements specify, among other things: "the method of selection and method of removal of representatives to the district committee, whether by legislative or governing bodies." (Emphasis added).

Based on these two provisions, the Supreme Court concluded: "the Agreement controls whether the Town's governing body (BOS) or its legislative body (the town meeting) has the authority to appoint Committee representatives." The Agreement unequivocally states: "All representatives and alternates shall be appointed by the board of selectmen or city council."  The Agreement does not grant appointing authority to a town's legislative body.

Additionally, the Supreme Court determined that the positions of town manager and representative to the Committee were not incompatible under RSA 37:16 (entitled "Incompatibility of Offices"). RSA 37:16 states, in relevant part, that a town manager "may be elected or appointed to any municipal office in such town . . . if occupied by another incumbent; but he shall hold no other public office except justice of the peace or notary public except as otherwise provide in RSA 37:16."  Because the statute is primarily concerned with incompatible town offices, the Court reasoned that the phrase "no other public office" is a prohibition against municipal, and not State or regional, offices.