THE STATE OF NEW HAMPSHIRE

BELKNAP, SS. SUPERIOR COURT

 

Anne Cioffi

v.

Town of Sanbornton, et al.

No. 2001-E-022

ORDER

The petitioner, Anne Cioffi, brought this action to enforce her rights under RSA chapter 91-A (the New Hampshire "Right to Know" law). Specifically, she asks the Court to Order the respondent, Town of Sanbornton (the "Town"), to comply with the requirements of the statute. The petitioner also seeks a permanent injunction enjoining the Town from violating the provisions of RSA 91-A and a declaration that copying costs established by the Town are unreasonable. The Town objects. The matter was expedited and heard on the merits from June 21-22, 2001. See RSA 91-A:7. After the matter was submitted, the petitioner filed motions seeking additional relief based on allegations of right-to-know violations occurring after June 22, 2001. The Town denied the violations and, accordingly, objected. Based on its finding of past right-to-know violations, coupled with a finding that the Town has adopted measures to remedy the situation, the relief requested by the petitioner is GRANTED in part and DENIED in part as described below.

The petitioner, after expressing an interest in Town business, encountered certain obstacles. First, she observed that the Town did not post notices of public meetings or that it posted notices in locations where it was highly unlikely they would be seen. Second, minutes of selectmen meetings did not always accurately reflect what had transpired. Third, the frequency of non-public sessions increased dramatically in the last two years. The reasons stated in support of the Selectmen’s decision to enter into a non-public session were vague—the Selectmen would only state that they needed to discuss a "personnel issue" or an employee. When the petitioner asked to see minutes of the non-public sessions, she was told that none were taken and, therefore, they were unavailable. Lastly, the petitioner complains that an October 1999 increase in the charge for copying imposes an unreasonable barrier to the public’s right to know.

Since this action was initiated, the Town adopted measures to address some of these concerns. It has posted meeting notices in conspicuous places, including outside the Town offices and in glass frames in the library and in the Town offices. Meetings are now taped, although the petitioner complains that the tapes often include large gaps. In addition, the Selectmen voted to adopt a new record keeping procedure for non-public sessions, including taking and maintaining minutes.

The petitioner’s concerns did not arise in a vacuum. Town citizens were becoming increasingly polarized because of several controversial substantive issues. One such issue involved a salary advance given to the Town Chief of Police, which was polarizing because, inter alia, the public learned of it after the fact. Another substantive issue involved certain accounting discrepancies reported by the Town Trustees of Trust Funds.1 Town citizens were also concerned about the Road Agent’s management of his department and management of the Road Agent by the Selectmen. This controversy was exacerbated because the Selectmen would meet regularly with the Road Agent in non-public sessions.

 

The petitioner seeks relief in a variety of forms. She asks the Court to enjoin the Town from violating RSA 91-A. She also seeks an Order requiring the respondent to prepare more complete minutes of public meetings, to prepare minutes of non-public meetings and to tape-record meetings properly. The petitioner also wishes the ability to review checks to be signed at meetings before they are signed. Finally, the petitioner asks that the Court to declare as unreasonable the copying costs established by the Selectmen.

The petitioner’s substantive claim is directed at the accountability of Town government. In support, the petitioner cites RSA 91-A:1, which provides:

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 petitioner asserts that the respondents have not complied in the past with the requirements of RSA 91-A, nor can they be relied upon to comply in the future, despite their recent adoption of RSA 91-A compliant procedures.

Although RSA 91-A:1 is an eloquent statement of governmental accountability, it does not impose substantive requirements. Cf. Shea v. Portsmouth, 98 N.H. 22, 24 (1953) ("The mention of better protection ¼ in the preamble ¼ granted no powers ¼ beyond those already possessed and exercised ¼ under the general laws of the state."). Thus, the Court must measure the respondents’ conduct against the substantive statutory requirements, using the chapter’s preamble as an aid to construction. Goode v. N.H. Office of the Legislative Budget Assistant, 144 N.H. ___, ___ (December 5, 2000) (slip op. at 3); Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540 (1997). The Court’s analysis, therefore, starts with the substantive provisions of the right-to-know law.

RSA 91-A:2 provides that "[a]ll public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings¼ ." "[P]ublic proceedings" are defined to mean "the transaction of any function affecting any or all citizens¼ ." RSA 91-A:1-a (supp.). A "meeting" is defined inter alia as "the convening of a quorum of the membership of a public body, as provided in RSA 91-A:1-a, to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power."

RSA 91-A:2 requires public bodies to comply with specific procedural requirements when scheduling a meeting. Notice of the time and place of the meeting is to be provided at least 24 hours in advance (excluding Sundays and legal holidays) by posting in two appropriate places or by publication. RSA 91-A:2, II. During the meeting, the public body is required to record minutes promptly, which must include "names of members, persons appearing before the [public body] and a brief description of the subject matter discussed and final decisions." Id. The minutes must be open for inspection within 144 hours of the meeting and are to be treated as permanent records of the public body. Id. RSA 91-A:4 further provides that if a person requests a copy of a public record, and the public body maintains a photocopy machine for its own use, the person requesting the copy may be charged the actual cost of providing the copy. RSA 91-A:4, IV.

The procedure for entering into a nonpublic session and nonpublic session conduct are established at RSA 91-A:3. Nonpublic sessions should not be conducted except to address issues that fall within a limited number of exceptions specified at RSA 91-A:3, II. If the public body chooses to go into nonpublic session, it is first required to cite the specific RSA 91-A:3, II exception which authorizes the nonpublic session. RSA 91-A:3, I (c) confines discussions and decisions during nonpublic sessions to matters specified in the motion to enter the nonpublic session. Finally, the public body must record and maintain minutes of proceedings in nonpublic sessions and the record of all actions must be promptly made available for public inspection, except as provided in the statute. RSA 91-A:3, III.

Remedies for right-to-know violations are specified at RSA 91-A:7 and 8. RSA 91-A:7 provides: "Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." If the court finds that the suit was necessary to make information available to the petitioner and that the Town and/or its employees knew or should have known that the conduct engaged in was a violation of RSA chapter 91-A, the court may award the petitioner reasonable attorney’s fees and costs. RSA 91-A:8, I. The court may also enjoin future violations of RSA chapter 91-A. RSA 91-a:8, III. Finally, "[t]he court may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." RSA 91-A:8, III.

In this case, Town compliance with RSA 91-A before the May 30, 2001 adoption of new procedures was casual, at best. Meetings were not properly noticed. If notices of meetings were posted at all, they were posted in a small font, on a bulletin board located behind a door, which was full of papers. The Selectmen did not articulate the reasons for going into nonpublic sessions with a specific reference to an appropriate section in RSA 91-A:3, II. See RSA 91-A:3, I(b) and did not take or keep minutes of those nonpublic sessions.

In addition, the public was not allowed to review checks to be signed at meetings, despite the Town’s assertions to the contrary. This allowed the Selectmen to conduct Town business in a manner that circumvented the requirement of sunshine. One example is the police chief’s salary advance. The issue was decided initially by individual telephone calls to each of the selectmen. The Selectmen "ratified" their individual decisions by signing the check for the salary advance during a public meeting. The check was one of many Town checks in a pile to be signed. The public was not permitted to see the checks and, therefore, could not know what issue was being decided by the Selectmen. The Town’s position is that the chief, as a matter of professional integrity, called the individual Selectmen to inform them of the issue. The Court accepts this explanation as bearing on the good faith of both the chief and the Selectmen, but nevertheless holds that the later "official" action at the meeting was not conducted in accordance with RSA 91-A requirements.

The Town should have known that its business was conducted in a manner inconsistent with the requirements of RSA Chapter 91-A but, unfortunately, Town officials did not take advantage of any training offered to on the subject. Moreover, the response by Town officials to citizen inquiries (which were often aggressive) was unnecessarily defensive. Accordingly, the Court finds that the petitioner has satisfied her burden of showing RSA 91-A violations, at least until May 30, 2001.

On May 30, 2001, the Selectmen adopted procedures that substantially comply with RSA 91-A. The procedures are based largely on RSA 91-A:3, with the exception of the RSA 91-A:3, I(c) restriction of nonpublic session discussions and decisions to matters specified in the motion to enter into the nonpublic session. There has been no indication, however, that the Selectmen have failed to comply with this requirement since May 30, 2001. There is also no need to make this requirement part of the Town procedure because the Selectmen are, in any event, required to adhere to the statute.

The petitioner does not believe that Town officials will adhere to the RSA 91-A compliant procedures adopted May 30, 2001. The Court does not share her skepticism. Indeed, the record indicates that meeting notices are now posted clearly and conspicuously in a variety of places. Meeting minutes are maintained for both public and nonpublic meetings. Public and nonpublic sessions are also tape-recorded.

One deficiency not corrected is the procedure of making decisions by signing checks at the Selectmen’s meetings. The Selectmen chairperson testified that these checks were available for public review; however, other testimony indicated that this type of public access is illusory. The check signing process is a de facto secret ballot, inconsistent with the RSA 91-A requirement that Town business be conducted in public unless subject to an exemption. The Court therefore directs the Town to correct this deficiency, either by making the check manifest a part of the agenda included in the meeting notice,2 or by otherwise stating during the public meeting what action the Selectmen are taking when they sign a check. The Court’s requirement should not be construed as requiring the Selectmen to reveal information recognized by RSA 91-A as confidential, so long as the board goes through the RSA 91-A process of conducting such business in a non-public session.

The petitioner also asserts that the minutes maintained by the Town are incomplete. To the extent that this claim pertains to a violation of right-to-know requirements on or after May 30, 2001, the Court disagrees. RSA 91-A:2, II requires only the inclusion of "names of members, persons appearing before the [Selectmen] and a brief description of the subject matter discussed and final decisions." A verbatim transcript is not required. The minutes maintained by the Town comply with this minimal requirement. Indeed, the tapes of the meetings maintained by the Town go further than required by RSA 91-A.

 

The remaining issue is the petitioner’s claim of excessive copying fees. The evidence shows similar fee structures adopted in other towns. Thus, the petitioner has not sustained her burden of showing that the fees imposed by the Town are excessive or operate as a barrier to public access.

Before concluding, it is necessary to revisit to the circumstances that form the backdrop of this action. This issues confronting Town government and its citizens are serious and merit genuine debate. The debate has, at times, become contentious. All of the players involved in this matter have a very significant interest in common, however—they care very deeply for their Town and its future. Nevertheless, the parties here have on occasion strayed from the issues to question the motives of those advocating other viewpoints. When others are viewed through a filter of suspicion, even the most benign actions can appear sinister and innocent mistakes can take on the appearance of a menacing conspiracy. Unfortunately, an initial reaction of some Town officials to citizen challenges was a defensive "circle the wagons" approach. The record reflects that Town officials were able to overcome this defensiveness, at least to the extent of the procedures adopted at the May 30, 2001 meeting. It remains to be seen whether the petitioner will demonstrate a similar ability to overcome her suspicion and participate in future debates on their merits.

Based on the foregoing, the petitioner’s request for relief is GRANTED as follows:

1. The Town shall modify its check signing process, either by making the check manifest a part of the agenda included in the meeting notice, or by otherwise stating during the public meeting what action the Selectmen are taking when they sign a check. This order shall not be construed as requiring the Selectmen to reveal information recognized by RSA 91-A as confidential, so long as the board goes through the RSA 91-A process of conducting such business in a non-public session.

2. Because the this action played a significant part in causing the Town to correct its procedures as set forth in the minutes of the May 30, 2001 meeting, the petitioner is awarded her costs. The petitioner shall file an affidavit specifying said costs within 20 days of the issuance of this order.

The petitioner’s remaining prayers for relief are DENIED. Additionally, the relief requested in the petitioner’s motions filed after the matter was submitted raise new factual issues. Accordingly, said motions are DENIED as untimely without prejudice.

The parties’ requested findings of fact and rulings of law are GRANTED or DENIED consistent with the above order. See Clinical Lab Products, Inc. v. Martina, 121 N.H. 989, 991 (1981); R.J. Berke & Co. v. J.P. Griffin, Inc., 116 N.H. 760, 766-67 (1976). Any of the parties’ requests for findings and rulings not granted herein either expressly or by necessary implication are hereby DENIED or determined to be unnecessary in light of the Court’s decision.

So ORDERED.

Date: August 7, 2001     ___________________________
                                     LARRY M. SMUKLER
                                     PRESIDING JUSTICE

 

1 At the Trial, the respondent moved to exclude any reference to the Town Trust Fund issue as it was not raised in the petitioner’s writ (as amended). The Court granted this request, specifically allowing the petitioner to pursue it later if she deemed it appropriate.

2 The Court understands that the Town routinely posts the agenda of its public meetings as a part of its notice thereof, even though RSA 91-A:2, II requires only the posting of the time and place of the meeting.