City prevails in spending cap lawsuit

NASHUA – Mayor Jim Donchess and the Board of Aldermen got a pass Tuesday for reportedly violating the city charter, while at the same time the future of Nashua’s spending cap is cast into doubt.

Hillsborough County Superior Court Judge Charles Temple didn’t rule on whether or not the city violated the spending cap provisions of Nashua’s charter in the order released Tuesday. Instead, Temple found that the city’s spending cap violates state law.

“(T)he Court finds that the current version of the spending cap … violates state law and is therefore unenforceable,” Temple wrote in his 23-page ruling.

Daniel Moriarty and Fred Teeboom, the two former aldermen suing the city, decried Temple’s ruling. Moriarty said he and Teeboom would have won their case if it were decided on the merits.

“The judge found a way not to rule,” Moriarty said. “That’s something he should be ashamed of.”

Teeboom called the ruling inconsistent and poorly written and speculated that Temple did not write the ruling himself.

“He wanted to wiggle out of (issuing a ruling) and he handed it off to some law clerk,” Teeboom said.

Donchess did not respond to The Telegraph when called for comment Tuesday. Instead, he issued a one-sentence statement on the ruling.

“Even though the spending cap has been invalidated, we’re still going to propose a fiscally responsible budget, and we’re still going to watch tax dollars carefully and be accountable to the taxpayers of Nashua,” Donchess stated.

Moriarty and Teeboom contend the city violated the spending cap, which restricts how much the city can raise the budget year to year, when the Board of Aldermen passed an ordinance last spring that changed the way the wastewater budget was handled by the city.

The ordinance removed the wastewater department’s $9 million operating budget from the general budget. The wastewater department is funded through user fees, and not taxes, and the wastewater capital expenses already are outside the general fund budget.

The ordinance artificially created millions of dollars in space under the spending cap for the 2018 fiscal year budget, which started on July 1, 2017. At the time the ordinance was proposed, Donchess said that the city faced severe cuts, including laying off firefighter and police officers, without the ordinance.

Moriarty and Teeboom contend this ordinance was an illegal work-around, bypassing the city spending cap.

Temple’s ruling makes their argument meaningless by stating that Nashua’s spending cap is unenforceable since it violates state law. Temple argues that Nashua’s spending cap does not include the ability for Aldermen to fully override the spending restrictions. While Nashua allows override exemptions for bonding and capital expenses, this isn’t enough of an exemption procedure to satisfy state law, according to Temple.

Teeboom said Tuesday that Temple is flat out wrong about the exemption.

“I have a headache trying to interpret the reasoning of these 23 pages, and frankly, am lost in his reasoning that the Nashua spending cap does not contain an override provision,” Teeboom wrote in an email to The Telegraph.

Teeboom said the 2011 state law that Temple uses to argue Nashua’s cap is unenforceable, RSA 49-B:13, actually allows for spending caps that were already in effect to be grandfathered in as enforceable.

Neither Moriarty nor Teeboom were ready to say Tuesday if they planned to file appeals to Temple’s ruling. The future of the spending cap remains to be seen. Temple, in another lengthy footnote in his ruling, declined to strike out the “unenforceable” spending cap as that had not been litigated during the court case.

Moriarty said that, ultimately, it will be up to the voters to decide if they want to have a city government that abides by the spending cap, or any other law for that matter.

“Voters need to correct this, and that means voting people out,” Moriarty said.

Damien Fisher can be reached at 594-1245, or @Telegraph_DF.