McKeever v. City of Laconia, Doc. No. 211-1991-E-098 (Belknap Super. Ct., April 29, 1991) (Barry, J.)

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NO. 91-E-098


Daniel E. McKeever


City of Laconia, Thomas A. Tardif, Mayor,
Bernice Paradise, Rene Clairmont,
Richard D. Sargent and Helene Gouin


Plaintiff, City Manager for the City of Laconia, has filed a Petition for Declaratory Judgment, Injunctive Relief, and Attorney's Fees, alleging essentially that the action of the Laconia City Council in Executive Session on 26 March, 1991, at 2:00 a.m., in which a resolution to terminate him was passed by a vote of 5 to 4, was accomplished as a result of prejudgment and in violation of his rights under the New Hampshire Right to Know Law (RSA 91-A). The defendant, City of Laconia, has moved to dismiss, claiming that the attempt at termination of plaintiff's employment was in accordance with the terms and dictates of the written contract between the City and the plaintiff, and in full compliance with the Laconia City Charter, specifically Article 4, Section 4.03. The City first claims that the plaintiff's petition fails to state a claim upon which relief can be granted and, even if it does, the action of the City Council was in compliance with the contract and the Charter, and therefore the plaintiff is entitled to no relief.

[2] In ruling on a motion to dismiss, the court must determine whether the facts as pled are sufficient under the law to constitute a cause of action. See Hartman vs. Town of Hooksett, 125 N.H. 34, 35 (1984); Hamilton vs. Volkswagen of America, 125 N.H. 561, 562 (1984). Further, all facts properly pled by the plaintiff are deemed true and all reasonable inferences derived therefrom are construed most favorably to the plaintiff. Weld Power Industries vs. C.S.I. Technologies, 124 N.H. 121, 123 (1983). The Court must rigorously scrutinize the complaint to determine whether, on its face, it asserts a cause of action. What is involved is a pre-trial, threshold inquiry that tests the facts in the complaint against the applicable law. See F. JAMES, CIVIL PROCEDURE Subsection 7:13 (1965) (Emphasis in original). Jay Edwards, Inc. vs. Baker, 130 N.H. 41, 44, 45 (1987).

The Laconia City Council is subject to the provisions of RSA 91-A:1-a, Definition of Public Proceedings. "The term 'public proceedings' as used in this chapter means the transaction of any functions affecting any or all citizens of the state by any of the following:...

IV. Any board, commission, agency or authority, of any county, town, municipal corporation, school district, or other political subdivision, or any committee, subcommittee or subordinate body thereof, or advisory committee thereto.

[3] RSA 91-A:2 provides:

II ...Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including an executive session, shall be posted in 2 appropriate places or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings."

The plaintiff claims in his petition that although the March 25 meeting was a regular public meeting and an adjenda was prepared, no notice was given of any executive session or personnel matters to be discussed or acted upon by the City Council.

The New Hampshire Supreme Court has held that the fundamental purpose of requirements for notice and hearing is to advise all affected parties of their opportunities to be heard in a public meeting and to be apprised of the relief sought. Carter v. Nashua, 113 N.H. 407 (1973)

RSA 91-A:3-II provides:

"A body or agency may exclude the public only if a recorded roll call vote is taken to go into executive session. The matters discussed during the executive session shall be confined to the matters stated in the motion. A motion to go into executive session stating which exemption under this paragraph is claimed shall be made only when the body or agency is considering or acting upon the following matters:
(a) The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected reguests an open meeting. (Emphasis added)

A review of the plaintiff's petition and consideration of the arguments made could lead a reasonable trier of fact to conclude that the actions taken by the City Council in the early morning hours of March 26, 1991, were the result of a prior meeting held in violation of RSA 91-A. A [4] reasonable trier of fact could further find that the city's failure to provide notice on the adjenda, as well as its commencement of the executive session at 2:00 a.m., were planned in a conscious effort to deprive the plaintiff of the rights accorded to him pursuant to RSA 91-A.

The Court finds and rules, therefore, that the plaintiff's petition does state a claim upon which relief can be granted, and defendant's motion to dismiss is DENIED.


   29 April 1991       /s/   

DateJames J. Barry, Jr.,

Presiding Justice