DIXFIELD – Although most contested matters have been resolved, a control issue continues to percolate between municipal officials and Ludden Memorial Library trustees.

Selectmen believe they have the right to take care of all funds, whether they are designated specifically for certain departments like the library or not, and manage library affairs. Trustees disagree.

So they hired Farmington attorney Frank M. Underkuffler for two hours worth of work to determine if trustees have the right to manage their own funds, such as the Verdurina Ludden Trust and George D. Bartlett Fund, said Trustee Patricia Jones.

“For years, we’ve wanted to determine where we got the idea that trustees have the right to manage our own funds,” Jones said Thursday afternoon. “We would like to see all of the money run through the town for accounting purposes, but once it runs through – particularly trusts and donations – we have the right” to make the money do that for which it was intended.

Initially, trustees didn’t want to hire an attorney, considering it too costly, but, Jones said, Dixfield Town Manager Nanci Allard suggested they get an attorney.

Last spring, town officials hired the law firm of Preti, Flaherty, Beliveau, Pachios & Haley, LLC, and paid an attorney last July for an opinion on the matter, Jones said.

There was a difference of opinion, however, between trustees and the town’s legal opinion. That’s one reason why Jones and her husband, Paul, a member of the Library Building Committee, sought a second opinion on behalf of the trustees.

According to Underkuffler’s five-page opinion, if a trust like the Ludden Trust has been established and there are no records showing that it has been terminated, it continues to exist.

Ludden established a testamentary trust to hold and manage funds to be used for establishing and maintaining a public library, Underkuffler said.

“Since there is still a public library in Dixfield, the purpose of the trust has not yet failed,” Underkuffler wrote.

A 1937 special town meeting vote accepted Ludden’s bequest in trust and another special town meeting a year later enabled the library to be built with trust funds.

When the library was opened in 1939, a town meeting vote charged trustees with managing the library, and, through the years, they’ve done just that, Patricia Jones said.

However, last month selectmen and Allard said that when a town-meeting vote instituted a town manager form of government in 1983, that removed library management from the trustees and turned it over to town officials.

The town’s auditor also recommended selectmen take control of the money intended for, and used to run, the library.

Selectmen additionally claim that because townspeople have supported the library since its inception, up to and including funds for a costly addition to the library, that they have the sole right to direct library activities and spend library funds.

Underkuffler disagreed.

“Neither a town manager plan nor an auditor can terminate the Ludden Trust. Many public trusts are dependent for their existence upon public funds; the Ludden Trust is more autonomous, and less dependent, than some, insofar as it has private benefactors and agreements with neighboring towns.

“The town’s financial support of a trust does not terminate it, so ongoing financial support from the town could not terminate the Ludden Trust,” Underkuffler said.

“The trustees of any trust are under a fiduciary duty to hold and manage those funds that have been entrusted to them. If and to the extent any funds under the present control of the Ludden Trustees are funds belonging to the trust, it would be a breach of the trustee’s fiduciary duty to turn those funds over to the selectmen, the town manager, or any other person,” he wrote.

At Monday night’s meeting, selectmen, who received copies of Underkuffler’s letter, tabled further discussion on library trustee funds to their July 14 meeting.

tkarkos@sunjournal.com

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