RTK law violated by NH law makers

As the country was celebrating sunshine week, one NH legislative committee was banning the recording of their public meeting – a clear violation of the Right-to-Know law.

On March 13th, the Finance Committee Division I was conducting a public meeting. While called a work session, it was a public meeting nonetheless.

This violation was recorded on video by David Ridley.

Here is a summary of the events which took place.

David Ridley attends a legislative committee work session and starts to video record.

The Chair says “There’s no photography in the committee room”.

Ridley asks “Under what law would I be prohibited from filming?”

The Chair says: “We have house rules; please direct that question to the Speaker’s office”

Security is summoned and tells Ridley he can’t record “By request of the chair”

Security is not willing to state the law or rule which forbids cameras during the work session.

Ridley continues to film the work session.

While he is recording, Someone says “Sir, you are being very disruptive to our meeting”

When he asks how is he being disruptive, a committee member replies ““You are using a camera and we have house rules that you’re not supposed to be using a camera”.

Security later says  “No recording because it’s not a public hearing”  “It’s a house rule, its disruptive to the hearing”.

The chairperson stated that recording the work session was against house rules.   However, according to House Rule #110:

  1. Open Meetings. All meetings of any committee of the House and Senate shall be open to the public subject to the provisions of N.H. RSA 91-A.

And RSA 91-A:2 II says ” …all meetings…shall be open to the public… Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings.”

Another committee member also stated recording was against house rules.  A total of 9 committee members were in attendance and not one of them knew house rule #110 or was willing to speak up and correct the violation.  That’s unfortunate, because had another member spoke up they could have invoked House Rule #100 (f) which requires the Chairperson “To explain or clarify any rule of procedure upon request”.

Security apparently did not know house rule #110 but they were certainly willing to enforce a house rule that no one was willing to reference and that, in fact, did not exist.

What transpired here is typical of what happens all too often in public meetings around the state. Officials tell the public you can’t do something that the Right-to-Know law says you can do.  But the officials don’t back up their position when asked.   Then, the simple request of asking for the law or rule to support their position is used to claim that the person is being ‘disruptive’.

This incident is just one more example which vividly demonstrates that New Hampshire public officials, at all levels of government, need more training in the Right-to-Know law.

For additional press coverage of this violation:

NH1

NH Political Buzz

Girard at Large

Photography is not a crime

RTK Case Settles Before Supreme Court Argument

Unusual Right to Know Law Case Settles Before Supreme Court Argument

By: H. Boone Porter, III

A closely watched case, Porter, et al. v. Town of Sandwich, et al., Dkt. No. 212-2014-CV-00178 (Carroll County Superior Court), was recently settled on terms extremely favorable to the plaintiffs.* Under the settlement: (i) the Town withdrew its pending appeal to the Supreme Court with prejudice; (ii) the Superior Court’s orders that, among other relief, vacated a total of 6 Town administrative proceedings and mandated Town officials and employees to attend remedial training, collectively became a final, binding, and non-appealable judgment; (iii) the Town and the intervenors together agreed to reimburse the Porters $200,000 in attorneys’ fees of the $204,000 awarded by the Superior Court; and (iv) the Porters’ will dismiss 2 appeals of Zoning Board of Appeals (ZBA) decisions that are now moot.  

This case highlights that the Right-to-Know Law (RTKL) not only compels public bodies to disclose government records, but also regulates how public bodies convene and conduct meetings and how they deliberate and make decisions. When a public body violates these requirements, an aggrieved party may seek relief for: (i) reimbursing attorneys’ fees; (ii) vacating of administrative decisions; (iii) requiring public officials to attend remedial training; (iv) entering injunctions; and (v) imposing civil penalties on offending officials.

The underlying facts were complex and intertwined with those of 2 appeals of ZBA decisions the Porters simultaneously filed with the Superior Court. Ultimately, the Superior Court wrote a 47-page order finding that the Town had engaged in systemic violations of the RTKL by: (i) conducting unnoticed meetings of public bodies; (ii) deliberating upon, and then reaching decisions for, pending cases in unnoticed meetings; (iii) participating with Town counsel in conduct intended to circumvent the spirit and purpose of the RTKL; and (iv) failing to disclose requested public records. A simplified statement of the facts necessary to understand the Porter’s RTKL claims is recited below.

The Porters owned an undeveloped lakefront lot. In 2014, the owners of an abutting lakefront lot (the “Intervenors”) erected a building in apparent violation of the Town’s zoning ordinance. When negotiations between the principals failed, the Porters petitioned the Board of Selectmen to conduct a hearing under RSA 43:1 to determine: (i) if the building permit issued to the Intervenors was invalid; or, alternatively, (ii) if validly issued, the building erected exceeded the permit’s authorization.

The Selectmen denied the Porters’ request. During a public meeting, the Selectmen announced that they had already discussed this matter among themselves and were “interpreting” the zoning ordinance in a manner unfavorable to the Porters. The Porters then filed two separate appeals of adverse administrative decisions with the Zoning Board of Appeals (ZBA).

Learning of the Porter’s planned first appeal, the chairman of the ZBA e-mailed all ZBA members, with a copy accidentally sent to Mr. Porter. The e-mail made false accusations against the Porters, claiming that they were lobbying Town land use boards to concur with their interpretation of the law and that they were violating ZBA rules governing administrative appeals. The e-mail instructed ZBA members to destroy all copies of the Porters’ appeal. The chairman’s life partner, who served as the ZBA’s land use secretary, replied to all ZBA members that she had “instructed” the Town’s administrative assistant and the Selectmen’s assistant to “confiscate” any filing made by the Porters.

Mr. Porter sent three replies. First, he stated that the e-mail’s factual allegations were unfounded and negatively prejudiced the Porters’ appeal. Second, he warned that “confiscation” of his filing would have serious legal consequences. Finally, he noted that the ZBA chairman’s e-mail constituted a meeting of a public body in violation of the RTKL. Several days later, the Porters filed their first ZBA appeal, and shortly thereafter, filed their second.

The ZBA denied the Porters’ first appeal concerning the Selectmen’s refusal to conduct a public hearing under RSA 43:1, claiming it lacked jurisdiction because of time bar. The ZBA relied upon a zoning ordinance provision that applied only to applicants whose building permits had been denied, and which was inapplicable to the facts presented. The ZBA next denied the Porter’s second appeal relating to the Selectmen’s erroneous interpretation of the zoning ordinance, claiming it had no jurisdiction to reverse the Selectmen’s decision not to hold a hearing under RSA 43:1.

This second decision was based on the ZBA’s incorrect finding that the Selectmen had not interpreted the zoning ordinance. A transcript of a recording of the Selectmen’s meeting announcing its decision conclusively disproved the ZBA’s “finding.” During this second proceeding, the ZBA did not permit the Porters to argue the existence of jurisdictional facts.

The Porters filed motions for reconsideration. Shortly before the scheduled hearing (where the ZBA was supposed to deliberate upon and decide both motions in public view), the Porters discovered a copy of the ZBA’s denial decision of one of their motions on the front seat of their car. The denial decision recited facts not in the record and the names of the ZBA members appeared under signature lines. The Porters also found a redacted transmittal e-mail to all ZBA members. (Unbeknownst to the Porters, a similar denial decision and transmittal e-mail had also been sent to all ZBA members concerning the other pending motion for reconsideration.)

The redacted e-mail stated the accompanying denial decision was the recommendation of Town counsel prepared on the direction of the ZBA’s chairman. The e-mail instructed ZBA members to carefully consider the denial decision on an individual basis; admonished them to be prepared to discuss its contents at the upcoming public hearing; and advised them of the precise wording to be used in making a motion to adopt the denial decision.

Alarmed, the Porters made a RTKL document production request to discover what other covert proceedings might have occurred. The Town, however, did not timely or completely respond. At the hearing on the motions for reconsideration, the Porters and their counsel were prohibited from speaking, and both motions were denied. The Town finally produced documents revealing that Town employees had exchanged e-mails disparaging and mocking the Porters throughout the administrative proceedings. The Porters then filed their RTLK lawsuit.

The Superior Court determined the Selectmen had decided to deny the Porters’ request for a hearing under RSA 43:1 outside of a publicly noticed hearing. The Selectmen testified they had decided the matter at the end of a public hearing but their decision had not been included in the minutes. The Superior Court found this testimony “not credible.”

The Court ruled the pre-hearing circulation of the draft denial decisions was a scheme to unlawfully circumvent the RTKL. It determined the drafts were signals to ZBA members how the chairman wanted the appeals decided and that typing individual ZBA member’s names under the signature lines was, in the circumstances, an improper solicitation of votes. The Court also found that the Town failed to timely produce public documents requested under the RTKL. The Court concluded that the Town knew or should have known it had engaged in “obvious” and “clear” violations of the RTKL, and these violations would have continued but for the Porters’ lawsuit.

As stated above, the Superior Court: (i) declared that the Town violated the RTKL; (ii) vacated all of the Board of Selectmen and ZBA proceedings as being irredeemably tainted by unfairness; (iii) ordered designated Town officials and employees to complete a specified training program by a court-approved independent attorney; and (iv) awarded the Porters their attorneys’ fees. The Court declined to enter an injunction, deeming its training remedy sufficient to prevent future violations, and concluded civil penalties should not be assessed against Town officials because they acted with poor judgment and not in bad faith. It is unclear if this last finding was made to protect the Town’s right to maintain insurance coverage, but in fact, it had no coverage for violations of the RTKL.

Footnote(*): The author was one of the Plaintiffs in this case. This article is for general informational purposes only.  It is not intended to be, nor does it constitute, legal advice. Consequently, this article may not be relied upon as legal advice by any person. The facts and circumstances of each RTKL case are unique. Persons seeking legal advice regarding the RTKL or any other legal matter should consult with competent legal counsel.

 

Senate Hearing on Bill HB170 on Posting Notices and Minutes on Web

The Senate Judiciary Committee has scheduled a hearing on HB170  for Tuesday April 4th at 9:15 am in the State House Room 100.  This bill is sponsored by Rep. Ed Comeau (R) and was amended by the House.

The bill amends RSA 91-A:2, II to include the following:

 If minutes are posted on the public body’s Internet website, then they shall be posted on such website consistently for all subsequent meetings, once they become available.

and

If notices are posted on the public body’s Internet website, then they shall be posted on such website consistently for all subsequent meetings.

RTKNH supports this bill.

RTKNH asks everyone to write to the Senate Judiciary Committee requesting them to support the bill.

Previous testimony in support of this bill can be found here.

Senate hearing on bill for commission to study RTK complaint process

On Tuesday the Senate Judiciary Committee heard testimony on HB178.  This bill establishes a study commission on resolving Right-to-Know complaints. HB178 was previously passed by the House Judiciary Committee.

David Saad, President of RTKNH, appeared at the Senate Judiciary Committee hearing and testified in support of the bill.

Here is his written testimony:

 

To: Honorable Members of the Judiciary Committee
Re: HB178

I ask you to support HB 178 to establish a commission to study complaints.

The Right-To-Know Law ensures openness and visibility into the actions, decisions, and records of government, therefore we have a right to know what decisions they are making, when they make them, and why they arrived at a given decision. Violations of the law diminishes our access to this information and creates an environment where misuse of power can flourish and distrust of government grows.

Should a citizen feel the law has been violated, currently, enforcement of the law falls squarely on the citizen’s shoulders.  Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive.   Additional costs are also born by public bodies and the courts.  Regardless of who wins or loses the lawsuit, the taxpayer is burdened with a great deal of the total expense.  To reduce these costs to the taxpayers, this study commission will study ways to reduce both the number of and the expense of resolving complaints.

Some of the alternative ways other states resolve right to know complaints include the use of:

  • Independent Arbiters
  • Advisory Councils
  • Public Access Counselors
  • Attorney General’s Office
  • Compliance Boards
  • Ombudsman Office

The appeals boards currently operating in NH (i.e. Tax and Land Appeals, Water Council, etc) also provide a framework and track record for success in resolving complaints.

These and other options should be reviewed for their merits with the goal of establishing a less costly procedure for resolving right to know complaints.

 

40 years fighting for our right to know

THIS BLOG POST IS A GUEST EDITORIAL.  

Author: Harriet E. Cady

I am writing this in response to Sunshine Week in NH and the country.  As we have just had town and school meetings in the majority of towns I am well aware of information withheld from the voters.

As a citizen who has won some and lost some right to know cases, my skin had to thicken because of the personal attacks you take in order to make the public officials obey the law.  The oath they take appears to mean nothing to many elected officials but rather their idea of what is right or even what they think is right taking precedence over citizen’s rights or the laws.

In 1974 I took my school board to court for violating the Right-to-Know law because they refused to give my Learning Disabled son an IEP behind closed doors.  I was shaking in my high heels to think I was having to talk with and answer the Judge’s questions, refute the school’s attorney, who I must say wasn’t able to do much against the minutes they kept which proved my case.  Just had to have the Judge review their non public minutes and show the letter they had the Superintendent send to me.

But now for the most heart breaking part, the public officials who have with a vengeance attack any citizen who dares to take them to court for violating their oath.  The lies they tell the community about you as a person and how you have “Cost” the towns taxpayers so much in legal fees and most citizens don’t even ask officials the question “if you obeyed the law would the citizen have taken you to court?”

Although RSA 91-A protects citizens Right to Know it is left to the citizen and newspapers to enforce the law.  There is nothing to stop the lies the leadership in the community will tell people what a bad person you are and since they are elected leaders, most often they are believed without question.

So what do we do? Are we the only ones to enforce the law?  Do we let them violate it until something really bad happens?  How about a person who commits suicide after being made to look horrible for asking questions of the officials at their meetings? Is the loss of his life enough?

Unfortunately I don’t have an answer for how many people have suffered the tales told by elected officials who don’t like being sued under the Right-to-Know Law.  However, I do know the people who avoid me for daring to enforce my rights and who have listened to false tales about how I have cost the taxpayers $500,000.  Actual costs have been nearer $50,000 for the lawyer who defended the town in the 6 cases of which I won 4.

Not once have I heard anyone say back, “Well if they broke the law how could she make them obey the law other than going to court?”  Will we ever get an Attorney General who can enforce our right to know when a citizen brings proof of violations?  Why does the Attorney General’s office have a division of Public Integrity if not to make elected officials obey the state’s statutes?  Once again, a business owner who dared to post the truth about our right to know has seen retaliation by people stating others shouldn’t do business with her.  So even though 40 years ago the Office of Civil rights found the school violated my son’s educational rights, and the court found they violated the Right-to-Know law, officials are still not obeying the Right-to-Know law and the person who stood up for her rights has become a victim with attacks on her business.  Guess that will fix us who dare to question those who ask to be elected by us so they can serve and who take an oath to uphold the laws of the state of NH and the NH and US Constitution.   First we must pay the taxes for the lawyer to defend them and then take the communities condemnation for daring to make an elected official do that which they took an oath to do!   How dare we ask them to obey the law and adhere to what they swore to do!

Harriet Cady is a founding member of Right to Know New Hampshire and a resident of Deerfield.  She can be emailed at righttoknownh@gmail.com

Sunshine Week enthusiasm grows

Last week citizens across the country and New Hampshire took part in Sunshine Week by celebrating their rights to an open government.

Sunshine Week has ended but enthusiasm for a more open and transparent government continues.

During Sunshine Week, Right to Know NH (RTKNH) participated in the following events and radio broadcasts:

EVENTS:

Training and panel discussion on the Right-to-Know Law organized by the New England First Amendment Coalition and hosted by the Nackey S. Loeb School of Communications and held in Manchester.

 

Training and workshop on the Right-to-Know Law organized by the Nashua Telegraph and InDepthNH.org and held in Nashua.  More details here.

RADIO:

NH public radio:  N.H. Needs Independent Arbiter To Hear Complaints

Girard at-Large:  David Saad on Right to Know NH

RTKNH looks forward to taking part in Sunshine Week again next year and encourages all members of the public who are interested in open government to attend future sunshine week events.  In the meantime, join RTKNH and help us advocate for a more open and transparent government.

Our right to know what our government is doing lasts only as long as our vigilance to insist on it. For RTKNH every week is Sunshine week.  Let the sun shine!

 

 

Letter to newly elected public officials

To improve compliance with the Right-to-Know law (RSA 91-A), all newly elected officials should receive information on the Right-to-Know law to educate them on their responsibilities to insure an open and transparent government.

After town elections, Todd Selig, administrator for the town of Durham NH, informs all town council members about the Right-to-Know Law.   His letter below, serves as one example of how officials can proactively educate other officials to improve compliance with the Right-to-Know law.

Letter sent to officials:

Dear Members of the Council and Soon to Be Members of the Council,

I annually send this introductory email to the new Council with a little bit of information concerning email and public meeting protocol in light of the Right-to-Know law (RSA 91-A).

Public Meetings

RSA 91-A requires that all public meetings are open to the public with very few exceptions. A public meeting, even those that are non-public, must be posted in advance so that the public is aware that the public’s board is planning to meet, where it will be meeting, and a general sense of what will be discussed. This allows members of the public to attend the meeting if they desire to listen to or observe the proceedings.  Town Council meetings must by Town Charter be posted 48 hours in advance of a meeting.  All other boards, committees, and commissions must provide for 24 hours posting.

What is a Meeting? 

It is the convening of a quorum (or in the case of the Durham Town Council a majority for the purpose of the Right-to-Know law) of a public body, “whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate contemporaneously,” for the purpose of discussing or acting upon any public business. RSA 91A:2, I.  This includes work sessions.

What is NOT a Meeting?

The law makes it clear that certain gatherings of public officials are not meetings subject to the Right to Know law (see RSA 91-A:2, I). They include:

  • Chance, social, or other encounters “not convened for the purpose of discussing or acting upon . . . matters [relating to official business] if no decisions are made regarding such matters”
  • Strategy or negotiations relating to collective bargaining
  • Consultation with legal counsel

Email Communications

In Durham we have adopted a very open policy with respect to public access to communications. To this end, it is important for you to know that emails that you send to the Town Office will be made available for public inspection upon public request. In addition, ALL emails that I send to one member of the Council, unless they are of a purely personal nature with no local government significance (such as illness, family matters, etc.), are copied to all other members of the Council. This keeps everyone on the same page with the same information.

In addition, ALL email communication that I send to the Council is also copied to Jennie Berry and placed into a file for public and media inspection. Informational emails that you send to me (without also copying the full Council) are not placed in the public binder unless I specifically respond to them ­although they could be requested by a member of the public at any time.  To fully comply with changes to the Right to Know law made in 2008, any emails sent to me in which all or a majority of Councilors are also copied will be placed in our public folder.  If for some reason an email circulates among a majority or the full Council in which I am not copied, please take it upon yourself to ensure we receive a copy of that transmittal for placement in the public folder.

Please know that anything you put in an email and send to the Town could potentially show up the next day in Foster’s, the Union Leader, or any other media publication if a local reporter was to visit, call, or email the Town Hall and request a copy which does sometimes happen.  Residents, developers, and local businesses also request copies of email streams from time to time and these are subject to public disclosure unless the subject is specifically exempted by the Right-to-Know law (i.e., legal correspondence, personnel information, etc). 

In this day and age of lightning-speed email, Facebook, and other on-line communication — great concern has existed as to whether ongoing and deliberate two-way communication between a majority of members of the Council does in fact constitute a public meeting — and an illegal one that has not been posted at that. In Durham, we have historically taken the position that such electronic communication does constitute a public meeting. Changes to the Right to Know law in 2008 are consistent with Durham’s historical interpretation.

Communications Outside a Meeting

RSA 91-A:2-a, limits the use of communications outside a public meeting held in compliance with the law.

  • No deliberations outside a public meeting.Public bodies may deliberate on matters of official business “only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III” ­ (i.e., only in properly noticed public meetings).  This does not mean that any mention of a matter of official business outside a public meeting is illegal; however, it is illegal for the body to deliberate on such a matter outside a meeting – i.e., to discuss the matter with a view toward making a decision.  This includes discussions by email and other electronic means!  The intent of the law is that such matters should be deliberated in public.
  • No circumvention of the spirit or purpose of the law.  Communications outside a meeting, “including, but not limited to, sequential communications among members of a public body,” shall not be used “to circumvent the spirit and purpose of this chapter.”  This is intended primarily to prevent public bodies from skirting the “meeting” definition by deliberating or deciding matters via a series of communications, none of which alone involves a quorum of the public body, but which in aggregate include a quorum.

To ensure that the Council does not inadvertently have any illegal meetings, we have opted over the last several years to keep two-way email and electronic communication between all Councilors to a minimum. I have tried to craft a few concrete examples to illustrate this situation more clearly below.

Example #1: Examples of Problematic Email Communication between Councilors:

Councilor 1: Is there consensus that the Town should purchase land parcel XYZ for a price of $1,000,000?

Councilor 2: Absolutely.

Councilor 3: Yes.

Councilor 4: Full speed ahead!

Councilor 5: Go.

Councilor 6: Buy it now while the getting is good!

Councilor 7: I vote yes.

Councilor 8: I vote yes.

Clearly, a trend is evolving in which a majority of members of the Council are one by one lending support to a decision — but without the public’s knowledge that a discussion is taking place. This type of email interaction would be a violation of state law.  The discussion should take place at a public meeting.

Example #2. Examples of Problematic Email Communication between Administrator and Council:

Administrator: What does everyone think about developing an ordinance that prohibits pink colored houses in Durham?

Councilor 1: Great Idea.

Councilor 2: I hate pink. Good going. Long overdue.

Councilor 3: As long as my house is grandfathered!

Councilor 4: Super.

Councilor 5: As soon as possible this reform is needed.

Again, public business is being conducted and “discussed” electronically without the public’s knowledge. This would be a problem. The topic would be more appropriately discussed at a public meeting of the Council.

Example 3: Example of Appropriate Communication between Administrator and Council:

Administrator: I am planning to take action XYZ that is within the Administrator’s authority per Charter and wanted to let the Council know of the pending action so that if there are any concerns, these can be brought to my attention in a timely way.

Councilor 1: I have a concern.

Administrator: Thank you for expressing your concern. We will schedule this for discussion at the next public meeting of the Council.

Example 4: Example of Appropriate Communication between Councilors:

Councilor 1 to All Councilors: Madam Chairperson. I want to schedule a discussion for the next meeting dealing with topic Y because it is very important  for a variety of reasons impacting our community.

Chairman: We will put topic Y on the agenda for the next meeting so that all Councilors may weigh in on the subject and so that the public will be informed of the issue. Thank you for the suggestion.

Please do not hesitate to contact me if you have further questions in regard to Right-to-Know law issues.

Todd