A Slip of the Tongue: May Vs. Shall

By S.D. Plissken | October 3, 2018

At last Monday’s meeting of the Board of Selectmen (BOS), Chairman Thibeault made a slip of the tongue regarding the legal force of the Capital Improvement Program (CIP) plan.

Chairman Thibeault: Alright. Next on the Agenda, 2019-2024 CIP Discussion. I put this on here. So, the Planning Board has been working on this, along with the department heads, for basically all year and it was approved at the public hearing on September 18. We’ve all received copies of that. Hopefully, we all have had a chance to review it. So, I guess I’ll open it up to any discussion or comments from the board.

Vice-chairwoman Hutchings: Are we voting on it now?

Thibeault: I would recommend that we accept it, but I wasn’t sure if we want to discuss it first. If you want me to go through and highlight some things, I will. Yes, no?

Selectman Lucier: Yep.

Thibeault: Alright. So, the Capital Improvement Program is an annual recommendation report for the Board of Selectmen and the Budget Committee. It is mandated under New Hampshire RSA 674:5 [through 674:]8.

Screech. Stop right there. That is … less than accurate. The BOS is not so mandated. RSA 674:5 states clearly that the BOS may authorize the creation of such a CIP recommendation, which may encompass this or that content. RSAs 674:6 through 674:8 state clearly that, when requested, the Planning Board or CIP committee shall create one in a certain manner and that, having prepared such a recommendation, they shall submit it to those that requested it.

The difference between “may” – things the BOS might do, but only if they like – and “shall” – things the BOS must do, even if they would rather not – is a mile wide.

The BOS may choose to request such a CIP plan or they may choose not to request such a plan. The Planning Board shall submit one to the BOS upon their request. The Planning Board has no choice. At which point, the BOS may choose to use it, in whole or in part. They may equally choose to throw it away, draw pretty pictures on it, or wear its pages as dunce caps. They are not mandated to do any particular thing with it.

Chairman Thibeault likely wants to amend his characterization of a CIP mandate, for accuracy’s sake. The BOS faces no such mandate to either create or implement one – no irresistible force, no unmovable object. The RSAs will not “make” the BOS do whatever it is that he contemplates, they do not escape responsibility for their actions.

Quite the contrary. If that CIP plan proposes yet more tax increases, the BOS has a positive obligation to those it represents to disregard those aspects of it. That would go double if, say, it included things already rejected at the ballot. Otherwise, why have such things on the ballot at all? That would be just silly. (Vice-chairwoman Hutchings sensed this in some inchoate way).

Unless the BOS does not represent the interests of the voters, but some other interest instead. But what could that be?

Aah, the Town government. The interests of the voters and the Town government have diverged. Well, that can happen. One group wants to reverse the trend of many years of increasing taxes and the other wants those increases to continue. It is insatiable, really.

(Chairman Thibeault goes on to say that CIP plan recommends continuing the usual above-inflation-rate tax increase of 3.0% while, elsewhere, in the very same document, the plan recommends also an even-greater-than-usual tax increase of 3.8%).

So, our paths diverge in a wood and the voter’s interests took the one less traveled. And that will make all the difference. (Apologies to Robert Frost).

One hopes we take that less-traveled path. We need a break, a very long break, from above-inflation-rate tax increases. You can not tax your way to prosperity. And the BOS represents us, as opposed to the Town apparatus. Surely, they would never work against our interests? That is why the BOS exists, after all – to represent our interests.

Well, that is the nub of it, isn’t it? I guess, we shall have to wait and see. We have no other choice.

References:

Collins Dictionary. (2018). Nub. Retrieved from www.collinsdictionary.com/dictionary/english/nub

Frost, Robert. (1916). The Road Not Taken. Retrieved from www.poetryfoundation.org/poems/44272/the-road-not-taken

Town of Milton. (2018, October 1). BOS Meeting, October 1, 2018. Retrieved from youtu.be/jLkGCxJjXeg?t=332

State of New Hampshire. (1983-2017). RSA Chapter 674: Local Land Use Planning and Regulatory Powers. Retrieved from www.gencourt.state.nh.us/rsa/html/lxiv/674/674-mrg.htm

Author: S.D. Plissken

I thought he'd be taller.

5 thoughts on “A Slip of the Tongue: May Vs. Shall”

  1. But, did the author actually READ the CIP Annual report? It is not in his reference material list. Doing this would change the conclusions of the article.

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    1. The actual content is not the point. Chairman Thibeault said the plan was a mandate, which is not true. The relevant statutes, which the Chairman cited, clearly state that Board of Selectmen MAY choose to request such a plan. If they do, the Planning Board SHALL produce one. There is no statute that says that the Board of Selectmen SHALL implement the plan. They are not required to request a CIP Plan, nor are they required to implement one that they have requested. The plan’s actual content, whether it suggests cotton candy all around, purchases that will increase taxation, or any other measure, is besides the point. There is no mandate, other than producing a plan on request.

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      1. I was never arguing that point made correctly in the article, but I was taking issue with what was assumed about the CIP recommendation report’s advice to the BoS and Budget Committee. I would respectfully request that you do read the report.

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  2. A few clarifications anyone? Why does the BOS request a CIP? Do we need one? Is it a good use of our rescources to have one? If it’s not mandatory per RSA what would take it’s place?

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