Governor Chris Sununu signed HB471, into law on 8/25/21 and it becomes effective 9/25/21. This law allows the Department of Justice to voluntarily maintain a list of current and former law enforcement officers with complaints and misconduct records known as the exculpatory evidence schedule (“EES”). This schedule will be a public record available under the Right-To-Know law. This bill also requires police disciplinary hearings to be open to the public unless certain confidential information may be revealed.
Governor Chris Sununu signed HB108, into law on 7/30/21. This law:
I. Requires that for meetings in nonpublic session where the minutes or decisions were determined to not be subject to public disclosure, a list shall be kept which shall include certain information. The list shall be made available for public disclosure.
II. Exempts materials falling within the attorney-client privilege or attorney work product doctrine from the provisions of RSA 91-A.
III. Establishes a committee to review authorizing governing bodies of municipalities to hold virtual meetings and to study remote access to meetings under RSA 91-A.
RTKNH supports House Bill 471.
Police officers should not have a privacy interest with respect to their official conduct. When their conduct is called into question and brought forth before the Police Standards and Training Council there is a significant and compelling public interest in the conduct and activities of both the officer and the Council. The public has a right to know the process undertaken by the Council during an officer’s disciplinary hearing.
Disclosure of police misconduct is in the public interest. The New Hampshire Commission on Law Enforcement Accountability, Community, and Transparency agrees and recommends “Make the existing Exculpatory Evidence Schedule (EES)” a public record as noted in their Final Report (Recommendation # 22).
Police, by the nature of their duties and power, must be held to a higher standard. That higher standard must include transparency regarding their conduct and the process performed by the Council to review and take action regarding such misconduct. The Council’s disciplinary hearings should be open to public scrutiny to allow for adequate checks and balances to ensure bad behavior or inadequate action cannot hide behind a veil of secrecy and further erode the public’s trust.
RTKNH supports House Bill 566 with an amendment to the bill’s current language.
Minutes and decisions reached in nonpublic sessions used to discuss the acquisition, sale, or lease of property are often sealed because the release of minutes to the public could “render the proposed action ineffective”.
In this case, the information may be withheld until the circumstances that would “render the proposed action ineffective” no longer apply. This is current law.
Once a contractual commitment to acquire, sell, or lease property has been signed by all parties, the proposed action has been finalized. Upon contract signing, the proposed action has become effective and binding on all parties so the circumstances for not disclosing the minutes no longer applies and public release of the minutes can no longer “render the proposed action ineffective”.
The preamble to the right-to-know law states:
“Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.”
While public bodies should interpret the existing law and release minutes after contract finalization, often this does not happen. The law needs to be clarified to make this requirement clear.
To ensure the greatest possible public access to the actions, discussions, and records regarding the acquisition, sale, or lease of property, the following amended language is recommended:
“An exception shall apply to those minutes generated from subparagraph II(d), which may be unsealed at any time but which will automatically be unsealed after one year unless a majority of the members vote that the minutes should remain sealed. closing or contract finalization.”
Additionally, any vote to continue to not disclose the minutes should be taken in public session.
In 2015, the Center for Public Integrity, winner of the Pulitzer Prize, evaluated the freedom of information laws of all 50 states as part of its State Integrity Investigation. In the Category of Public Access to Information, New Hampshire earned a grade of F, and ranked 49th out of 50 states. In the category titled “In practice, citizens can resolve appeals to access to information requests within a reasonable time period and cost,” New Hampshire received a score of 0.
Those findings summarized what many Right to Know advocates already knew. In NH, the burden to resolve Right to Know complaints is very high for citizens because one has to file a petition in Superior Court.
In 2017, the passage of HB 178 established a commission to study processes to resolve Right-to-Know complaints.
After 2 months of meetings, a cross representation of stakeholders unanimously agreed that citizens need a grievance resolution process which is easier, cheaper, faster and results in less cost for all parties. Establishing an independent Ombudsman was the recommendation after considering a number of alternatives.
The origins of this bill come from the recommendations of the 13 member Legislative Right-to-Know Study Commission created by HB 178.
The Study Commissions Final Report can be read at http://www.orol.org/rtk/rtknh/2017-10-31-HB178-Commission-Report.pdf
While there is a cost to hiring the Ombudsman, there are opportunities for savings which can more than offset this cost. If court can be avoided, there will be savings in court costs and public agencies will save a tremendous amount in legal fees which saves the taxpayers money. For example, in the Superior Court case of Porter v. Town of Sandwich, Porter was awarded over $200,000 in attorney fees and the town had to pay their own legal fees too. The town of Tuftonboro paid over $20,000 in legal fees and lost their Right-to-Know lawsuit.
Please support this bill which creates a low cost, speedy, credible, and impartial grievance resolution process for all parties.
House Committee Hearing is scheduled for 1/26 @ 1pm.
Please register your support for HB 481 before the hearing by:
- Registering your support via the Remote Sign In Sheet
- Submitting testimony via email to HouseJudiciaryCommittee@leg.state.nh.us
Review all Right to Know bills here.
Previous blog postings related to this topic.
David Saad of Rumney NH, a member of RTKNH, provided the following testimony to the Senate Judiciary Committee in opposition of SB 39 which would exempt police records and misconduct from public disclosure:
Part I, Article 8 of the New Hampshire Constitution and the Right-to-Know law are the fundamental prerequisites for a self-governing people. As the legislature made clear in the preamble to the Right-to-Know law: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” The Right-to-Know Law helps further our State Constitutional requirement that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” To categorically exempt all law enforcement officer personnel files and investigations would violate the Part 1, Article 8 of the NH Constitution.
The determination of whether certain records should be exempt often comes down to a balance between privacy interests and a public’s interest in disclosure. The courts use the following 3 steps to evaluate whether disclosure constitutes an invasion of privacy:
- Is there a privacy interest at stake that would be invaded by the disclosure?
- Would disclosure inform the public about the conduct and activities of its government?
- Balance the public interest in disclosure against the government’s interest in non-disclosure and the individual’s privacy interest in non-disclosure.
Police officers should not have a privacy interest with respect to their official conduct.
When it comes to the behavior of the police in their official capacity, especially when it concerns misconduct, there is no privacy or confidentiality interest in nondisclosure. Police officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm. Police officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.
Police, by the nature of their duties and power, must be held to a higher standard. That higher standard must include transparency regarding their misconduct. Their conduct must be open to public scrutiny to allow for adequate checks and balances to ensure bad behavior cannot hide behind a veil of secrecy, erode the public’s trust, or bring harm to those they swear to protect.
Additional testimony submitted by the ACLU.
To record your opposition to this bill contact the Senate Judiciary Committee via the remote sign in sheet.
To view RTKNH’s position on all Right to Know Bills, click here.
Right to Know NH has published a list of bills which are before the NH Legislature. We also note the position RTKNH will take on these bills.
Our blog also provides instructions for looking up the details of a bill and how to contact your legislator to voice your opinion on these bills.
With Covid-19 and the legislature conducting remote meetings, the procedures for testifying on bills have been updated to provide for remote access.
David Saad of Rumney NH, a member of RTKNH, provided the following testimony to the House Election Law Committee in support of HB 1390
As a computer consultant for over 30 years, I have spent much of my professional life identifying and correcting computer system errors. Many times, these errors are attributable to the computer system itself even though it had been previously put through various tests to insure its accuracy. The reality is that no electronic device is 100% accurate all the time. The accuracy of ballot counting devices depends on a number of factors and each of those factors are susceptible to inherent flaws which may not be fully uncovered before the devices are used to count votes. Ballot counting devices are subject to unintentional and intentional error. One of the easiest ways to insure the ballot counting device is working accurately is to conduct an independent verification count of all machine-counted ballots.
Please support HB 1390 which will make ballots accessible to citizens to allow an independent verification of all votes tallied.
Please contact the House Election Law Committee and ask them to vote HB 1390 Ought to Pass.
David Taylor of Durham NH, a member of RTKNH, provided the following testimony to the House Judiciary Committee in support of HB 1169.
I am David K. Taylor of Durham, NH. I served 12 years on the Oyster River School Board and have been a member of Right to Know NH for 5 years.
I am opposed to HB 1169.
This bill would strike a provision of RSA 91-A:2, III(e). The current provision requires all votes to be by roll call when a member of a public body is participating in a meeting electronically.
The current provision is common sense to anyone who has participated in a conference call. In a conference call, it is sometimes hard to identify who is speaking. This could be because the audio quality is poor. It is also because when a person is speaking live in a room, you can tell where their voice is coming from. Their voice has direction. That direction is lost over a phone call. Multiple speakers appear to be coming from the same place, so it is harder to distinguish them. Also, people tend to speak at the same time more often in a conference call. This is because of extra delays transmitting their voices, and the lack of visual cues used to subtly negotiate who gets to speak.
Given this extra difficulty identifying speakers on both ends of a phone call, it is critical that the votes at a public meeting be unambiguous and transparent. Requiring a roll call vote makes them unambiguous.
Since members should only participate electronically when it is not “reasonable practical” to attend in person, the slight burden of a roll call vote should be the exception instead of the rule. The extra transparency outweighs this burden.
The provision to require roll call votes for electronic participation must be kept.
Please contact the House Judiciary Committee and ask them to vote that HB 1169 is Inexpedient to Legislate.
Donna Green formerly of Sandown NH, and a member of RTKNH, provided the following testimony to the House Judiciary Committee in support of HB 1689.
Dear Honorable Members of the House Judicial Committee:
Please let me share just one experience of many from my public service to illustrate the importance of passing HB 1689 concerning non-public minutes.
I was a representative from Sandown on the Timberlane Regional School Board. Just before my service began in March 2014, the school board went into a nonpublic session under 91-A:3 II (a): The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her…
The sole purpose of their nonpublic session was to discuss hiring a consultant to initiate a Foreign Language in Elementary School (FLES) program. She was being hired through a third party (SERESC).
The board exited the nonpublic and voted in public to “approve the Foreign Language in Elementary Schools contract.” The board did not reveal the terms of the contract or the person being contracted.
This is what the nonpublic meeting minutes say:
Motion: Mr. Bealo motioned to enter into a non-public session under RSA 91-A: 3, II[a] the dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her. Mr. Ward seconded. The board was polled at 9:30 pm:
The board discussed both the Foreign Language in Elementary Schools contract presented to them for consideration and the specific individuals responsible for providing the consultation work.
Motion: Mr. Bealo motioned to exit the non-public session; seconded by Mrs. Delfino the board was polled:
The board exited the non-public session at 9:40 pm.
Included in the public minutes is this:
Motion: Mr. Blair motioned to approve the Foreign Language in Elementary Schools contract. Mrs. Sherman seconded the motion. With no further discussion the motion passed by unanimous vote of (8-0-0).
Chairman Collins applied his signature to the contract.
Immediately after this meeting I filed a Right to Know request to see the approved contract. I received it some days later. I learned that the contract was for five years at $50,000 a year and the consultant was the superintendent’s wife.
Apart from despicable nepotism, there were major violations of the law going on here – none of which can be punished with any consequence whatsoever:
- A consultant is not an “employee,” and therefore all discussion concerning consultants are required to be conducted in public unless under a “reputation” exemption, which 91-A:II(a) is not. The nonpublic session was illegal.
- The superintendent’s wife’s contract did not contain a non-appropriation clause. NH budget law states that multi-year contracts lacking a non-appropriation clause must be put before voters for their approval. This contract did not go to the voters, yet the district was bound to it for 5 years, at $50,000 a year.
Subsequent to this contract, the head of the foreign language department was demoted and disciplined for criticizing the superintendent’s wife on Facebook. This teacher successfully sued the district for First Amendment violations and was awarded a monetary settlement. Such are the fruits of nepotism.
The school board subsequently bought a $167,000 reading program from a company that also employed the superintendent’s wife as a consultant. At least some members of the school board did not know of this relationship.
Now this same superintendent is suing his own SAU for paying him only $100,000 in compensatory time for “overtime” when he claims he was entitled to time and a half.
You cannot make this up because it is impossible to fathom the depths of deceit and self-interest that can go on in public administration with or without the collusion of elected officials. As you all know, there is no enforcement of the law so electioneering, budget law violations and flagrant Right to Know violations are rampant. Citizens alone, without the help of government, must police their own public bodies and they can only do this with knowledge which you hold the key to in your support for this legislation.
We need verbatim nonpublic minutes or archived recordings. When public officials know their words and their actions will be recorded and ultimately made public, they will be on their best behavior or their constituents will have the knowledge to vote them out. I’m willing to bet this will put an end to many illegal nonpublic sessions, and I’ve seen numerous illegal sessions or sessions that quickly veer into topics that should by law be discussed publicly. The cost of a few thumb drives cannot compare to the money it will save in preventing or exposing malfeasance.
Nonpublic minutes in SAU 55, like the one discussed here, are notoriously bereft of any information. I suspect they are often like this elsewhere. If these minutes did have inconvenient information, they would simply be sealed indefinitely. This is why I would ask the committee to consider HB 1689 along with HB 1559 that attempts to limit the length of time nonpublic minutes can be sealed and to bring some transparency to the number of minutes being kept from the pubic.
Please contact the House Judiciary Committee and ask them to vote HB 1689 Ought to Pass.