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Subject: Re: Hypothetical on conflicting laws
From: "Bergeron, Paul" <[log in to unmask]>
Reply-To:Records Management Program <[log in to unmask]>
Date:Wed, 4 Dec 2002 12:10:56 -0500
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A number of states have language in their statutes and/or regulations which say something to the effect that the "provision shall prevail which was the last expression of the will of the general court, and the earlier conflicting provision shall be deemed to have been repealed by implication." (NH RSA 624:11) Thus, judicial review is not always "required" to arbitrate conflicting provisions.

In the event that conflicting retention schedules were incorporated into a single regulation or law, I concur with the suggestion that the records manager opt for the longer retention period.
Similarly, if the retention schedule isn't really clear about an unusual type of record -- and the RM could give it a 60 day retention if he determines it is record type "A" or 2 years if he determines it is really record type "B" -- go with the longer period.

It will be much easier to defend should the need arise -- in a judicial review.

Paul R. Bergeron
City Clerk
229 Main Street
Nashua, NH 03060
Telephone: 603/589-3010
Fax: 603/589-3029
http://www.gonashua.com/



-----Original Message-----
From: Towne, Stephen [mailto:[log in to unmask]]
Sent: Wednesday, December 04, 2002 11:35 AM
To: [log in to unmask]
Subject: Re: Hypothetical on conflicng laws


Mr. Montana's comments are well taken.  But hypothetically speaking,
before we assume that government authorities are hostile to it, I think
it might be easier, faster, and cheaper to change the laws in the
legislature(s) than to go to court to fix the problem.  This approach
gets to the root of the problem.  State legislatures are relatively
accessible:  legislators are happy to "author" bills suggested to them
even if you don't wave rolls of dollars under their noses.  If state
agencies are interested in the matter it would be all the more easy as
many legislators will try to be helpful and cooperative.  However,
choosing the legislator to carry the bill is the critical issue.  The
key is to build consensus given the political machinations that color
legislative affairs.  If the conflict in the laws is nonsensical (and
often is, a result of poor law drafting or oversight) and serves no
policy purpose, it could be an easy process.

Such has been my experience.  I have had no experience working with
Congress.

Steve Towne
IUPUI Special Collections and Archives

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