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entity in the State and in this country, are subject to the rule of law and are prohibited from engaging in

iHegal acts or cons

Please note | am not asking that the Committee or the City reduce or otherwise modify the
compensation to be paid to the Humane Society under the contract for any reason or in any amount.

Thanks for your consideration.

duly 9, 2019

VIA ELECTRONIC DELIVERY ONLY
Members of the Finance Committee
City of Nashua

229 Main Street

Nashua NH 03061

Upcoming Renewal of Contract Between City of Nashua and the Humane Society
for Greater Nashua — Finance Committee Meeting to be Held July 10, 2019

Dear Members of the Finance Committee:

This letter follows up my prior correspondence to ail of the Nashua alderman dated May 17,
2019 regarding the upcoming renewal of the contract between the City of Nashua the (City”) and the
Humane Society for Greater Nashua (the “HS”). Reference is made to my prior correspondence of
5/17/19 and the attachments thereto. The renewal contract between the City and the HS as sought by
the Mayor to be approved at the July 10, 2019 Finance Committee meeting should not be approved by
the Finance Committee for the following reasons:

A copy of the first page of the contract sought to be renewed is attached to this letter.

The fast 2 sentences of Section 1 on page 1 of the proposed contract call for the HS to
impound “stray” cats and ferrets at the HS facility on behalf of the City.

No legal authority exists providing that the City may impound a cat (or a ferret) because
such animal is a “stray” or is “running at large.” Instead, NRO Article 93 only authorizes the
seizure and detention (impounding) of dogs and chickens as “strays” or for “running at
large”. See NRO 93-2, 93-5, and 93-6 (4) and (G).

Likewise, State law only authorizes impounding of dogs as strays. See RSA 466:30-a (see
copy attached). RSA 466:30-a makes no mention of impounding cats as strays.

The City has most recently claimed that it may seize and detain (impound) cats because
they are a “nuisance.” No municipal ordinance of the City expressly authorizes the
impounding of cats or ferrets because that animal is a “nuisance”. NH law authorizes
impounding dogs as nuisances. See RSA 466:31 (see copy attached). But that statute does
not provide that cats or ferrets may be impounded as nuisances, and in fact makes no
mention of cats or ferrets.

The City lacks a licensing law for cats or ferrets though per RSA 466:13-a it may enact one.
As such, there is no mechanism by which the City may notify an owner of a cat or ferret that
such animal has been seized and impounded by the City, including because the City has no
record of the animal’s owner. This prevents the owner of the cat or ferret from recovering
their animal. Absent a licensing law for cats or ferrets in Nashua, the City may not seize or
impound a cat or ferret because the animal is a “stray”, a “nuisance” or is “running at large.”

7.

10.

il.

12.

Cats and ferrets are personally property under NH and federal law. Because the City has no
licensing law for cats or ferrets, the impounding of a cat or ferret by the City without
providing notice to the owner of the cat or ferret and the opportunity to recover the animal
can operate to deprive the cat or ferret owner of the owner's constitutional due process
rights associated with his or her personal property in the form of the animal, including per
the 14th amendment to the US Constitution.

Presently, Nashua citizens, and owners of cats and ferrets, are not properly on notice that
their cat or ferret may be seized and impounded by the City as a “stray”, a “nuisance” or for
“running at large” because NRO 93, other City law and/or State law do not expressly provide
for or authorize such seizures and impoundment. Nor does a licensing law for cats and
ferrets provide such notice because Nashua has no such licensing law. It is fundamentally
unfair, and potential deprivation of a cat or ferret owners’ constitutional due process rights,
to not inform such owners via properly enacted law that a cat or a ferret may be seized
and/or impounded as a “stray”, for “running at large” or as a “nuisance”.

Because the City, the Police and the Animal Control Officer lack the legal authority to seize
and impound a cat or ferret as a “stray” or for “running at large”, any action or attempt to
seize and impound a cat or ferret as a “stray” or for “running at large” (or for that matter as
a “nuisance”}) would be an illegal act and the City is prohibited from doing so.

Because the City may not legally seize or impound a cat or a ferret as a “stray”, the City’s
entry into a contract with a third party for purposes of impounding a cat or ferret as a
“stray” or for “running at large” is likewise illegal and should not occur.

Attached is a copy of the first page of an amended contract between the City and HS from
December 2017. The previous language in Section 1 of that contract regarding impounding
cats and ferrets as “strays” was removed by the Mayor in December 2017 after meeting
with me. The removal of the language re: impounding cats and ferrets as “strays” from the
HS contract in December 2017 was and is an acknowledgement by the City that it lacks the
legal authority to impound cats and ferrets as “strays”. It is likewise a concession by the City
that it therefore lacks the authority to enter into a contract with HS or any third party for
the purpose of using the HS or other facility to impound cats and ferrets as “strays” or for
“running at large.” The Mayor and City should not now re-insert such illegal language into
the upcoming contract with the HS.

Attached is a current copy of a portion of the Nashua Police’s website regarding frequently -
asked questions on “Animal Control”. The website expressly indicates that Nashua has no
leash law for cats and that cats are not prohibited from “running at large.” Again it is
fundamentally unfair and a potential violation of cat and ferret owner's constitutional, due
process rights to on one hand inform Nashua citizens that there is no prohibition against a
cat “running at large” or as a “stray” while at the same time having the Police and ACO seize
and impound cats and ferrets as “strays”, and to have a contract with the HS for such
purpose.

The Finance Committee should decline to approve the proposed renewal contract with HS for all
of the above reason. Instead, the Committee should seek to amend the proposed contract so it does
not provide for the City impounding cats or ferrets as “strays” at the HS. | am not requesting that the
compensation to be paid the HS by the City under the renewed contract be reduced in any way. Thank

you.

Encls.

nee
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Sincerely, ~~ ~¢

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f° a SS, ‘ “sy
4 e * sy, nM

’ een ee ..
Gary Braun :
8 Monza Road

Nashua NH 03064

(603) 321-1296

Pea vad Corde oy Yoga Dac . & sy -
AMENDED AND RESTATED AGREEMENT . Pe <7 \
Humane Society for Greater Nashua Corporation and the City of Nashua, NH

_ fi th ere belt
AGREEMENT made this | | day of !Y2017 by and between the City of
Nashua, New Hampshire (hereinafter “Cily”), 2 municipal corporation with a principal place of

business at 229 Main Street, Nashua, New Hampshire 03061 (the “City”) and Humane Society for
Greater Nashua Corporation (HSFN) of 24 Ferry Road, Nashua, NH, 03064, (hereinafter
“Contractor”) (collectively referred to as the “Parties”). The Parties hereby enter into this
Independent Contractor Agreement (hereinafter “Agreement”) under the terms and conditions set

forth below.
SCOPE OF SERVICES
The Contractor agrees to perform the following services for the City:

The Humane Society for Greater Nashua Corporation shall be the designated “Pound” for the City
of Nashua, NH and will be responsible for animal impoundment services to the City of Nashua, NH
as outlined in this Scope of Services.

1, The HSFN will provide the following impoundment and quarantine services for animals
impounded by the Animal Control Officer or a Nashua Police Officer:

10-Day Bite Quarantine of canines (stray and owned):
10-Day Bite Quarantine of owned felines:
10-Day Bite Quarantine of owned ferrets:

7-Day Impoundment of stray canines;

2. Tn accordance with RSA 466:18-a, and Nashua Revised Ordinances 93-6 Impoundment of
dogs, cats and ferrets found at large, HSFN will become the lawful owner of any unclaimed
animals as follows:

Canines~ After 7 days

Felmnes— Immediately if no permanent identification is found

Felines— After 7 days if permanent identification was found, but the animal remained
unclaimed

Ferrets— Immediately ifno permanent identification is found

Ferrets-- After 7 days if permanent identification was found, but the animal remained
unclaimed

The HSFN shall be responsible for the care of any animal of which it becomes the lawful owner,

3. The HSFN shall provide 24/7 access to the facilities to the Animal Control Officer and/or
officers of the Nashua Police Department.

ene

Propsrd Deatcel aloo -
AGREEMENT Pe ne |
Humane Society for Greater Nashua Corporation and the City of Nashua, NH

AGREEMENT made this day of , 2079 by and between the
City of Nashua, New Hampshire (hereinafter “City’), a municipal corporation with a
principal place of business at 229 Main Street, Nashua, New Hampshire 03061 (the “City’)
and Humane Society for Greater Nashua Corporation (HSFN) of 24 Ferry Road, Nashua,
NH, 03064, (hereinafier “Contractor’) (collectively referred fo as the “Parties”). The Parties
hereby enter into this Independent Contractor Agreement (hereinafter “Agreement”) under
the terms and conditions set fortn below.

SCOPE OF SERVICES
The Contractor agrees to perform the following services for the City:

The Humane Society for Greater Nashua Corporation shall be the designated “Pound” for
the City of Nashua, NH and will be responsible for animal impoundment services fo the
City of Nashua, NH as outlined in this Scope of Services.

1. The HSFN will provide the following impoundment and quarantine services for
animais impounded by the Animal Control Officer or a Nashua Police Officer:

10-Day Bite Quarantine of canines (stray and owned);

0-Day Bite Quarantine of owned felines;

10-Day Bite Quarantine of owned ferrets;

7-Day Impoundrnent of stray canines;

impoundment of stray felines for those with permaneni ID only

impoundment of stray ferrets for those with permanent ID only

2. in accordance with RSA 466:18-a, and Nashua Revised Ordinances 93-6
Imooundment of dogs, cats and ferrets found at large, HSFN will become the lawful
owner of any unclaimed animals as follows:

Canines —Afler 7 days
Felines — Immediately if no permanent identification is found
Felines— After 7 days if permanent identification was found, but the animal

remained unclaimed

Ferrets ~ immediately if no permanent identification is found

Ferreis- After 7 days if permanent identification was found, but the animal
remained unclaimed

The HSFN shall be responsible for the care of any animal of which it becomes the lawtul
owner.

What does the Animal Control Division do?

When does the Animal Control Officer (ACO} ware?

How do | contact the Animal Coniral Officer?

Why would I need to coritact the Animal Control Officer?
What is the “leash law"?

What will happen if my dog is picked up for “running a: larga"?

s if my dog is impounded, how do f rectair it?

Does the “leash aw" apply fo cats?
Why do I have to license my dog?
My dag never feaves the house, why does it have te b:
How do | obtain a license for my dog?
How offen de | have to license my dog?

e What if | own several. dogs?

: Do {i have to license my cat?
Where is the Humane Society?

What does the Animal Control Division de?
The Animal Control Division enforces the state laws and city omiinances as they certain fo domestic animals. The Division also assists the public with problems
concerning wildlife.

When does the Animal Control Officer (ACO} work?
‘The Nashua Police Department employs only one ACO. ACO Bob Langis works Monday through Friday from 7 a.m. to 2 pam

reas

How do | contact the Anima! Control Officer?
Please call the Department's main telephone number ai (603) 594-2500, ACO Langis typically works-on the street responding to complainis and patrolling the city.

Why would i need to cantact the Animal Contral Officer?

There are many reasons that you might need the ACO. For example, if you see a dog wandering around unleashed, you may leave a message for ACO Langis so he

can patrol your area more frequently and attempt to take this dog ini custody. Wf you see what appears to be a sick animal, such as a skunk or raccoon, itis important

that ACO Langis be mads aware so he can atfempt to capture this animal. There are aiso times when a neighbor's pet is a nuisance, such as a dog that barks
niinuously. Our ACO can advise you of the best way io remedy the situation and if necessary, file a complaint

zm What is ihe “leash faw'?
/ inNashua, NRO 5-5 states: “It shail be unlawful for any dog {o run al large. The term “at large” means off the premises of the owner or keeper, and noi under leash or
er physical restraint of the owner or a responsible person.” This maans that whenever your dog is off your property, or where you reside, the deg MUST be physically
restrained, voice command is nol sufficient.

Vehat will happen if my dog Is picked up for “running at large"?
if your dog is “impounded” for-“running at larga.” it will be transported lo the Humane Society. Hf your dog is not a repeat offender, you will receive advice on how to
prevent another occurrence. The owners or keepers of repeat offenders are subject to-court action.

if my dog is impounded, how do | reclaim &?
oe will have {0 go to the Humane Society io claim your pel. You will need ic show proof of a current city dog license or post a bond. your dog is not currently leensed
should license the dog ai the City Clerks office and bring the license wilh you when you clairn your dog.

Dogs tha “leash law” apply to cats?
Cytrenily there is no law prohibiting cats from “running ai large”

Q Why do [ haye to license my dog?
Under state law, RSA 466-1, all dogs over the age of. 2 months are required to be ficensed with the city or town clerk where the dog lives.

My dog never leaves the house, why does if have to be licensed?
State law, RSA 466-1, requires ALL dags (aver 3 months of age) be licensed. There are no exceptions for dogs that stay inside.

How do! cbiain a license for my dog?
Contact the. Cily Clerk's Office at {603} 589-3010. You will need a current Rabies Vaccination Gerlificate, and you will have to pay a Jicensing fee. If you can provide a
spay/neuter certificate, your license fac will he al a reduced rate.

How often do I have fo license my dog? ; ; |
3 All dogs must be licensed every year on or before May ‘ist. If you wait and license your dog after June ist, you may be subject to late penalties or court action.

hat Hl own several.dogs? ;
7} roup ficanses are available for owners/keepers of 5 ar more dogs. Please contact your City Clerk for the fee structure.

Go fF have-to license my cat?
Gurrontly there is no state flaw requiring cals to be ficensed.

Whare is the Humane Society?
The Dog Pound is located at ihe Humane Society, 24 Ferry Read, Nashua, NH. Please call the Shelter at (603) 589-2275 for its hours of operation or visit the Humane
Society for Greater Nashua Oniine.

May 17, 2019

VIA ELECTRONIC DELIVERY ONLY
Hon. Lori Wilshire, President
Board of Alderman

City of Nashua

229 Main Street

Nashua NH 03061

RE: Upcoming Renewal of Contract Between City of Nashua and the Humane Society
for Greater Nashua

Dear President Wilshire:

lam writing regarding the upcoming renewal of a contract between the City of Nashua (the “City”)
and the Humane Society for Greater Nashua (the “Humane Society’) sometime in June or July.
Specifically, | am asking the Board of Alderman (the “Board”) and the Board’s Finance Committee (the
“Finance Committee”) to consider this letter at the meeting of the Finance Committee where the
renewal contract is presented to the Committee. | would further request that the Finance Committee
decline to approve the contract renewal to the extent the contract contains illegal provisions and/or
which requires or involves the expenditure of public, tax dollars for an illegal purpose or purposes as
explained in this letter.

in the fall of 2017, one of my cats was trapped in a live trap (i.e. have-a-Heart trap) by someone in
my neighborhood. The person who trapped my cat called the Nashua Police (the “Police”). Officer
Langis, the Animal Control Officer (“ACO”) with the Police at the time, responded. Upon information and
belief, Officer Langis transported my cat to the Humane Society where he impounded my cat. The
impoundment form from the Humane Society enclosed with this letter as Exhibit A indicates my cat was
impounded as a “stray” or for “running at large”. Conversely, the impoundment form does not indicate
my cat was impounded for the purpose of a “bite quarantine”. | was ultimately able to retrieve my cat
from the Humane Society after she was held there for 10 days.

Neither State law nor the municipal law of the City of Nashua permits the City to impound cats as
“strays” or for “running at large”. Enclosed as Exhibit B is the City’s current animal ordinance applicable
to this matter. It is my belief that the ordinance is the same as it was in 2017. in actuality, the only type
of animal that may be impounded under the ordinance as a “stray” or for “running at large” is a dog.
Attached as Exhibit C is a print-out from the website maintained by the Police as of the fall of 2017,
which expressly provides that cats may not be seized or impounded as “strays”. My ultimate conclusion
as to the law applicable to this matter, which | will not discuss at length here, is that cats may be
impounded in Nashua at present, including by the Police, ONLY if the cats has rabies or is suspected of
having rabies, and only then in strict accordance with State law including as set forth at RSA 436:105-a.

In September of 2017 | began communicating with Steve Bolton, Corporation Counsel, and with the
Mayor’s office about the illegal impoundment of my cat. Corporation Counsel assured me on more than
one occasion at that time that the impounding of my cat by the Police was in error, that it was not the
practice or policy of the Police to impound cats in Nashua as “strays”, and that it would not happen
again. | accepted those representations at the time they were made.

| also brought to the attention of the Mayor and Corporation Counsel the fact that the then-current
contract between the City and the Humane Society contained provisions expressly providing for the
impounding of cats (and ferrets) at the Humane Society on the basis of those animals being “strays”. See
the first page of the contract between the City and the Humane Society dated July 17, 2017 (the “Initial
Contract”) at the end of paragraph 1, enclosed as Exhibit D. My position in 2017 (which remains my
position at present} is that the provisions in the Initial Contract regarding the impounding of cats and
ferrets as “strays” were and are illegal, and, that using public funds to impound cats and ferrets as.
“strays” was and is likewise illegal. | therefore asked that the Initial Contract be revised so as to comply
with the law, inciuding during a meeting that | attended with the Mayor, his chief of staff and
Corporation Counsel in October or November of 2017. The City agreed to modify the Initial Contract to
remove the illegal provisions, and to that end a revised contract was entered into by the City and the
Humane Society dated December 17, 2017 (the “Revised Contract’) which omitted the provisions
regarding impounding cats and ferrets as “strays”. See copy of first page of the Revised Contract
enclosed as Exhibit E.

My understanding and belief is that the Mayor was personally involved in negotiation or discussions
with the Humane Society regarding entry into the Revised Contract. The Mayor obviously signed the
Revised Contract on behalf of the City. See the signatory page of the Revised Contract enclosed as part
of Exhibit E.

The Revised Contract came up for annual renewal in the summer of 2018. Inexplicably, the Mayor
and his administration submitted a proposed contract to the Finance Committee which once again
contained illegal provisions regarding impounding cats and ferrets as “strays”. The minutes of the
Finance Committee’s meeting on August 1, 2018, where the proposed contract was presented by the
Mayor, do not reveal that the Mayor disclosed to the Finance Committee that six months earlier he had
negotiated and signed the Revised Contract on behalf of the City because the Initial Contract contained
illegal provisions. Nor did the Mayor inform the Finance Committee that the proposed contract he
presented to them on August 1, 2018 contained the very same, illegal provisions regarding cats and
ferrets that had been removed per the Revised Contract. The Finance Committee approved the contract
based on the Mayor's representations, which contract is dated July 2018 (the “Current Contract”). See
the first page of the Current Contract enclosed as Exhibit F. | would also point out that the Humane
Society had already signed the Current Contract in July 2018 PRIOR to the time that the Mayor sought
the approval of the Finance Committee to award or fund the Current Contract in August 2018. Perhaps |
am mistaken on this issue, but is it proper for the Mayor to seek approval and funding for City contracts
from the Finance Committee after the contract has already been signed by a party to that contract?

3. PERIOD OF PERFORMANCE. Professional Engineer shall perform and complete all work by December
31, 2022 which date shall only be altered by mutually approved written agreement to extend the period of
performance or by termination in accordance with the terms of the contract. Professional Engineer shall
begin performance upon receipt of an Executed Contract and a valid Purchase Order issued from the City

of Nashua.

4, COMPENSATION. Professional Engineer agrees to perform the work for a total cost not to exceed
Dollars ( $225,365.00 )

The Contract Sum shall include all items and services necessary for the proper execution and completion
of the Work.

Unless Professional Engineer has received a written exemption from the City of Nashua, Professional
Engineer shall submit monthly requests for payment for services performed under this agreement in
accordance with the values stated in the Agreement. Such requests shall be supported by such data
substantiating the Professional Engineer’s right to payment as the City of Nashua may reasonably require.
Professional Engineer shall submit monthly requests for payment for services performed under this
agreement shall be submitted as follows:

> Electronically via email to VendorAPInvoices@NashuaNH.gov
OR

> Paper Copies via US Mail to:

City of Nashua, City Hall
Accounts Payable

229 Main Street

Nashua, NH 03060

Please do not submit invoices both electronically and paper copy.

In addition, and to facilitate the proper and timely payment of applications, the City of Nashua requires
that all submitted invoices contain a valid PURCHASE ORDER NUMBER.

Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and
must include a detailed summary of the expenditures reported in a form that supports the approved budget.
Specifically, Professional Engineer agrees to provide the following with each request for payment:

!. Appropriate invoice forms. The forrns shall include the project purchase order number, a listing
of personnel hours and billing rates, and other expenditures for which payment is sought.

2. A progress report. The report shall include, for each monthly reporting period, a description of
the work accomplished, problems experienced, upcoming work, any extra work carried out, and a
schedule showing actual expenditures billed for the period, cumulative total expenditures billed
and paid to date under the contract, and a comparison of cumulative total expenditures billed and

paid to the approved budget.

The City of Nashua will pay for work satisfactorily completed by Professional Engineer. The City of
Nashua will pay Professional Engineer within 30 days of approval by the City of Nashua of the submitted
invoice forms and progress reports. The City of Nashua will make no payments until the invoice forms and
progress reports have been submitted and approved.

AG 27 of3