Is the Town Properly Conducting the Investigation of the Vilchocks?

While the public knows little about the details of the ongoing investigation of the Fire Chief Jaye Vilchock and Fire Lieutenant Sandy Vilchock, two things are clear:

• The Board of Selectmen has assured the public that it is following the guidance of the town’s attorney.

• There is widespread concern that the accused are being denied due process and concern that the town will get sued.

This should raise the question of whether the public should have confidence in the quality of the legal advice the Board of Selectmen is receiving from its law firm, Upton and Hatfield.

As the town is at risk of having two of its citizens sue it, it is useful to consider how well Upton and Hatfield guided the town through other recent lawsuits from citizens. We have two prominent examples of this.

• Pamela D. Kelly et al v Town of Nottingham, Private Roads Lawsuit in 2020 commonly known as the “Camp Roads” case.

• Brent Tweed v Town of Nottingham, Chemical Trespass Ordinance Lawsuit in 2019

Both of these cases give rise to concerns.

The Camp Roads case is particularly concerning. In that case the Board of Selectmen had decided to stop maintaining a large number of roads in town on the grounds that the town considered them to be private roads. The suit against the town argued that the town had incorrectly classified the roads as private and that they were by law public roads. Terminating town maintenance of these roads would therefore be illegal.

I documented in 2021 a large number of problems with the town’s legal position, why the town was likely to lose in court, and why the voters needed to intervene to prevent the Board of Selectmen from further wasting tax payer’s money on a lawsuit that the town deserved to lose. The most obvious problem with the town’s legal position was that the Town of Derry had tried to do the same thing a few years ago and they lost their case in Rockingham Superior Court.

Fortunately, the voters intervened to overturn the Board of Selectmen’s decision, but at that point large amounts of attorney fees had been incurred by both the town and the citizens the town had threatened to deprive of road maintenance.

What Upton and Hatfield advised the Board of Selectmen to do in this lawsuit has not been made public. Did Upton and Hatfield tell the town how bad the town’s legal position was and did the Board of Selectmen decide to litigate anyway? Or did Upton and Hatfield tell the town that the town’s legal position was good and that they were likely to win?

If Upton and Hatfield advised the town that its legal position was good, then why did Upton and Hatfield engage in several legal maneuvers to try to prevent the case from coming to court? Were they afraid that they were going to lose? Or were they just trying to make the legal bills as high as possible for the citizens who were forced to sue the town to protect their rights?

The Tweed case is also disconcerting. This suit arose because of a warrant article passed by the voters in 2019. The warrant article was aimed at protecting the town from companies dumping toxic pollutants, but its wording was so vague that Tweed was concerned that his mail-order business could be at risk for the $1,000-a-day fines the ordinance stipulated because his company uses fossil fuels to make deliveries and for heating, it disposes of packaging and other waste material, and it uses paint and cleaning supplies. All of these activities appeared to be in violation of the ordinance.

After nearly two years of legal wrangling, a Rockingham County Superior Court judge sided with Tweed, finding the ordinance was “unconstitutionally vague and cannot be enforced.”

When warrant articles are put on the ballot the town’s attorney is asked to review them to determine whether they are legal and enforceable. (Example.) Why didn’t the town’s attorney declare the chemical trespass warrant article unenforceable? Why instead did the town spend taxpayer’s money defending the ordinance in court? Did Upton and Hatfield warn the Board of Selectmen that the warrant article was unenforceable and the board decided to ignore that warning? Or did Upton and Hatfield endorse the warrant article as enforceable, leading the town into an expensive and ultimately fruitless lawsuit?

Actually, it was worse than fruitless. After Upton and Hatfield lost this case, the town got sued for $40,000 in attorney fees.

Based on what happened with these two recent lawsuits, the citizens of Nottingham should have concerns about the quality of legal advice the town has received in the past. Might there also be problems with the legal advice the Board of Selectmen is receiving about the investigation of the Fire Chief and Fire Lieutenant?

The Board of Selectmen has three new members: Matt Shirland, Steve Welch, and Tim Dabrio. These Selectmen carry no baggage associated with the town’s other recent lawsuits. Now might be a good time for the Selectmen to investigate whether the town’s attorney has in the past given good advice and to determine whether the town should continue to retain Upton and Hatfield. Regarding the investigation of the Vilchocks, it might also be a good idea to get a second opinion from another law firm.