McKeever v. City of Laconia, Doc. No. 211-1991-E-098 (Belknap Super. Ct., May 23, 1991) (Barry, J.)

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NO. 91-E-098






The plaintiff, Daniel McKeever, (McKeever) 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 plaintiff was passed by a 5-to-4 vote, was accomplished as a result of prejudgment and in violation of plaintiff's rights under the New Hampshire Right to Know Law (RSA 91-A).

McKeever is the City Manager of Laconia, New Hampshire. He was hired for a one-year term in July, 1989, by a City Council committee of which Thomas A. Tardif (Tardif) was a member. Plaintiff renegotiated another one-year contract with the present Council in the Spring of 1990. With respect to termination, McKeever's contract provides:

Nothing contained in agreement shall impair the rights of City to terminate the employment of manager at any time whatsoever, at Council's sole discretion, as outlined in Charter, Article IV, Section 4.03 . . . . (Plaintiff's Exhibit 2).

The five individually named defendants are members on the Laconia City Council who comprise a political faction known as the Straight Arrows. The Straight Arrows ran on a fiscally conservative platform and currently form a majority of the nine-member council. The defendant, City [2] of Laconia, has a Charter providing that:

The manager may be removed by a majority vote of the members of the council as herein provided. At least 30 days before the proposed removal of the Manager, the council shall adopt a resolution stating its intention to remove him and the reasons therefore, a copy of which shall be served forthwith on the Manager who may, within 10 days, demand a public hearing in which event the Manager shall not be removed until such public hearing has been held. Upon or after passage of such a resolution, the council may suspend him from duty, but his pay shall continue until his removal. In case of such a suspension, the council may appoint an acting manager to serve at the pleasure of the council for not more than a 90-day period. The action of the council in removing the Manager shall be final. (RSA 49-A:52). (Plaintiff's Exhibit 3).

The Preamble to New Hampshire's Right To Know Law states that:

Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to insure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.

RSA 91-A:1; Carter v. City of Nashua, 113 N.H. 407 (1973).

The other relevant portions of New Hampshire's Right To Know Law provide that:

I. For the purpose of this section, a "meeting" shall mean 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. "Meeting" shall not include:
(a) Any chance meeting or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made; however, no such chance or social meeting shall be used to circumvent the spirit of the chapter;
(b) Strategy or negotiations with respect to collective bargaining; or
(c) Consultation with legal counsel.
II. All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies. Except for town meetings, school district meetings and elections, no vote while in open session may be taken by secret ballot. Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras and videotape equipment, at such meetings. Minutes of all such meetings, including names of members, persons appearing before the bodies or agencies, and a brief description of the subject matter discussed and final decisions, shall be promptly recorded and open to public inspection within 144 hours of the public meeting, except as provided in RSA 91-A:6, and shall be treated as permanent records of any body or agency, or any subordinate body thereof, [3] without exception. 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. An emergency shall mean a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the body or agency who shall employ whatever means are available to inform the public that a meeting is to be held. The minutes of the meeting shall clearly spell out the need for the emergency meeting. When a meeting of a legislative committee is held, publication made pursuant to the rules of the house of representatives or the senate, whichever rules are appropriate, shall be sufficient notice. If the charter of any city or guidelines or rules of order of any body or agency described in RSA 91-A:1-a require a broader public access to official meetings and records than herein described, such charter provisions shall take precedence over the requirements of this chapter.

RSA 91-A:2 (emphasis added).

With respect to executive sessions, Section 3 of the New Hampshire Right To Know Law provides that:

I. Bodies or agencies may meet in executive sessions for deliberations only after a majority vote of members present, which shall be recorded in the minutes of the meeting. All sessions at which information, evidence or testimony in any form is received, except as provided in paragraph II, shall be open to the public. No ordinances, orders, rules, resolutions, regulations, contracts, appointments or other official actions shall be finally approved in executive session except as provided in paragraph II. The record of all actions shall be available for public inspection promptly, except as provided in paragraph II.
II. 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 requests an open meeting.
(b) The hiring of any person as a public employee.
(c) Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself, unless such person requests an open meeting.
(d) Consideration of the acquisition, sale or lease of property which, if discussed in public, would likely benefit a party or parties whose interestes are adverse to those of the general community.
[4] (e) Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the body or agency or any subdivision thereof, or against any member thereof because of his membership in such body or agency until the claim or litigation has been fully adjudicated or otherwise settled.
(f) Consideration of applications by the adult parole board under RSA 651-A.
III. Minutes of Executive Sessions. Minutes of proceedings in executive session shall be kept, at least to the extent of recording any decisions made therein. Decisions reached in executive session must be publicly disclosed within 72 hours of the meeting, unless in the opinion of 2/3 of the members present, divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself or render the proposed action ineffective. In event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.

RSA 91-A:3.


By way of background, in the Fall of 1990, Councilor Clairmont requested information from Mayor Tardif relative to the removal of the plaintiff from his position as City Manager. Clairmont had asked about plaintiff's removal a number of times, but this particular discussion was precipitated by plaintiff's appointment of former-Councilor Bolduc as a city assessor. Tardif informed Clairmont that section 4.03 of the City Charter provided the removal process and that it could be done by resolution of the City Council. Tardif said that he had a copy of such a resolution that had been drafted by Tardif and a former city solicitor for use in a prior administration to remove the previous City Manager, Boehner. At that time the then-City Attorney, James Sessler, reviewed the draft resolution and advised Tardif on the proper form for such a resolution. Sessler also strongly urged Tardif to adopt an alternative version of the resolution that did not allege fault on the part of Boehner. Sessler knew that Boehnar would simply resign upon a [5] no-confidence vote by five members of the council, but that Boehner would challenge any allegations of fault. Plaintiff's Exhibit 19-C is the compromise resolution then agreed upon.

One week prior to the council meeting at issue, a meeting was held at councilor Gouin's home. Mayor Tardif called Gouin and suggested a meeting to discuss various parts of the budget. Tardif also notified Councilors Clairmont and Paradise. The four council members in attendance were Straight Arrows, three of which - Tardif, Clairmont, and Paradise - made up the Governmental Operations Committee. The Governmental Operations Committee was charged with the responsibility of reviewing the Budget proposed by the City Manager and presenting its review thereof to the entire council. Notice of the meeting was not given to any other council member or to the public. During this meeting the subject of the resolution to remove the City Manager arose. The testimony indicated that Mayor Tardif produced the resolution, placed it on the table at Mrs. Gouin's house, and said to Councilor Clairmont, "here is what you've been looking for." A discussion then ensued among the four, with Councilor Paradise requesting that a particular whereas clause in the resolution be deleted, which was agreed upon by all. By agreement of those present, Mrs. Gouin was charged with responsibility for retyping the resolution.

The Court notes that although the testimony indicated that Mayor Tardif had a resolution he claimed was prepared sometime in 1989, which he promised Mr. Clairmont a copy of, the resolution produced at the meeting at Mrs. Gouin's is dated 1991. (Plaintiff's Exhibit 19-B).

Mrs. Gouin retyped the resolution (Plaintiff's Exhibit 19-D) and added a whereas clause which stated that "the Manager is not the kind of leader for the hard economic times in Laconia." (Plaintiff's Exhibit [6] 19-A). Councilor Clairmont called Councilor Gouin sometime before the March 25, 1991, meeting to see if the resolution was ready, but it had not yet been typed. Clairmont again called Gouin on the morning of March 25, 1991, the day of the scheduled council meeting, to see if the resolution was ready. He was informed that he had better come and pick it up right away, as Mrs. Gouin was going to City Hall to copy her budget recommendation. Councilor Clairmont picked up the resolution, immediately went to a copy center, and photocopied approximately 12 to 14 copies. He thereafter kept the resolution with him at the meeting of March 25, 1991.

The council meeting of March 25 was held in the Martha Prescott Auditorium in the Laconia Library. A long session was anticipated with many members of the public attending, since the main item of the agenda was the budget. In fact, well over 100 members of the public attended most of the meeting. After a long council meeting, Councilor Clairmont moved that the council go into executive session "for a personnel matter" at approximately 1:50 a.m. The motion carried; however, whether it was unanimous or not was in conflict. Minutes prepared by Councilor Clairmont, (Plaintiff's Exhibit 25) indicate that the motion carried unanimously; however, the minutes prepared by the City, (Defendant's Exhibit B) indicate that Councilors Colby and Kellett opposed.

Mayor Tardif allowed the City Clerk, Ann Dearborn, to leave the council meeting at the time the vote was taken to go into executive session. The City Clerk testified that she usually stays when there is a vote to be taken, and in this instance was allowed to leave because of the lateness of the hour and an apparent failure to disclose any proposed action by any of the councilors.

[7] Once in executive session the plaintiff learned for the first time that he was the subject of a resolution calling for his termination. He immediately requested that the executive session be opened to the public (RSA 91-A:3(II)(a)). At that point, the Mayor terminated the executive session and the plaintiff attempted to find the 20-25 members of the general public who had been present at the time the executive session was called, in order for them to come back in and remain in attendance. The plaintiff has disclosed that the only ones present at the time the meeting was reopened to the public were the spouses of two of the councilors. Once opened to the public (with no public in attendance), the resolution was read and no discussion ensued from the five members of the Straight Arrow faction. Councilors Faris and Kellett requested information as to the motivation or reasoning for the resolution, none of which was provided. Councilor Faris called the question, which carried, and then the resolution was voted on and passed by a 5-to-4 vote. The minutes show that the meeting adjourned at 2:15 a.m. (Plaintiff's Exhibit 25 and Defendants' Exhibit B).

The Plaintiff now seeks an invalidation of the actions taken by the City Council at their March 25-26, 1991, meeting, based upon a complaint of violation of the Right To Know Law and prejudgment, as well as disqualification in any further proceedings involving his employment by Mayor Tardif, Councilors Paradise, Clairmont, Sargent, and Gouin.

The resolution adopted by the Council provides essentially two generic categories of reason: lack of communication and failure of cooperation. However, during the course of the hearing in this matter, from May 15 through May 20, several of the defendants elucidated, most for [8] the first time, upon their reasons for the vote in support of the resolution to terminate the plaintiff. Councilor Clairmont testified that his reasons for the resolution were an accumulation of his eighteen months of dissatisfaction with the plaintiff and specifically the following reasons:

1. The plaintiff's tardiness in responding to councilors inquiries,
2. The appointment of former-Councilor Bolduc by the plaintiff to the Laconia Board of Assessors,
3. His displeasure with the disciplining of the Fire Chief by the plaintiff,
4. His displeasure with the plaintiff's role in the City budget, and
5. The plaintiff's failure to provide an answer to an inquiry regarding a cable television franchise.

Councilor Clairmont testified that he would be able to give the plaintiff a fair and impartial hearing in accordance with sec. 4.03 of the Charter.

Mayor Tardif testified that he became frustrated with plaintiff's performance regarding:

1. The wage and compensation plan for 17 exempt employees,
2. The disciplining of the Fire Chief,
3. The allowance of the purchase of a desk by police officers as a present for a retiring chief of police,
4. The failure of the plaintiff to enact the funding proposed by the Mayor for the Laconia Kindergarten, and by
5. The appointment of Bolduc to the Board of Assessors.

Mayor Tardif testified that he would be able to give the plaintiff a fair and impartial hearing in accordance with sec. 4.03 of the Charter.

Councilor Gouin testified that the reasons she voted for the passage of the resolution were:

1. Her unhappiness with the plaintiff's lack of pursuit of economic development,
[9] 2. Her unhappiness with the budget proposed by the plaintiff,
3. Her displeasure with the plaintiff's Capitol Improvement Program,
4. Her unhappiness with the plaintiff's providing the Manchester Union Leader with the amount of legal fees that the City has incurred as a result of the Straight Arrows,
5. Placing of mail in councilors mail boxes on Friday nights and having news paper publicity regarding the items in the mail boxes prior to the councilors receiving it,
6. Failure of the plaintiff to provide the council with the new school budget format,
7. Her displeasure with the public having to wait in City Hall while employees were listening to a local radio station talk show,
8. Her displeasure with the appointment of Bolduc to the Board of Assessors, and
9. Her displeasure with the purchase of a desk by police officers as a present for their retiring police chief.

Councilor Gouin testified that she would be able to give the plaintiff a fair and impartial hearing in accordance with sec. 4.03 of the Charter.

Although the City Manager has a contract with the City which allows his termination by the Council without reason, the Council in this instance chose to terminate in accordance with Article IV, Section 4.03 of the City Charter, which requires that reasons be stated. Appeal of the Town of Pelham, 124 N.H. 131 (1982).

During Tardif's testimony he indicated that he did not suspend the executive session and put it over until such time as proper notice could be given to the public because he saw no need. He further testified that the plaintiff compromised the City in requesting a public hearing. He stated that he would not jeopardize the confidentiality rights of any other City employees by answering questions as to the reasons for the resolution in a public hearing as requested by the plaintiff. By refusing [10] to answer any questions he effectively denied the plaintiff's statutory right to an open or public hearing. Contrary to the aforementioned assertions of the Mayor, when he was asked in open Court to detail the reasons for his vote to terminate the plaintiff, Tardif did not indicate a single reason which involved the confidentiality/privacy rights of a single individual. The only employees even mentioned by Tardif were the Fire Chief and former Councilor Bolduc. Tardif's displeasure with the Fire Chief involved comments allegedly made after the fire-deaths of two young children. Comments critical of the lack of sufficient funding of the Fire Department's budget were attributed to the Chief and aroused such ire in the Mayor that he called the plaintiff at home and demanded the Chief's suspension without any apparent regard to the Chief's First Amendment rights. The entire incident was a matter of public record and therefore no confidentiality rights applied. Moreover, the then-City Attorney provided an opinion which indicated the comments attributed to the Chief were within his First Amendment rights.

Both Councilors Clairmont and Gouin as well as Mayor Tardif testified as to their extreme displeasure with plaintiff's appointment of former-Councilor Bolduc to the position of City Assessor. Councilor Clairmont went so far as to suggest that the plaintiff should prescreen all prospective appointees with the Council.

Article IV, section 4:06 of the City Charter provides:

NON-INTERFERENCE BY THE COUNCIL. Neither the council nor any of its members shall direct or request, except in writing, the appointment of any person to office or employment, or his removal therefrom, by the manager or any of the administrative officers. Neither the council nor any member thereof shall give orders to any of the administrative officers, either publicly or privately, but they may make suggestions and recommendations. Any violation of the provisions of this section by a councilman shall be a misdemeanor . . . . (Plaintiff's Exhibit 3).

[11] The extreme displeasure elicited in the course of the testimony with regard to the appointment of Mr. Bolduc as a City Assessor, the adamant demands to suspend the Fire Chief and the attempted usurpation of the Manager's obligation to submit his proposed budget rise to the level of interference prohibited by the Charter.

The New Hampshire Supreme Court has held that chapter 91-A helps to effectuate the New Hampshire Constitution's requirement that "the public's right of access to governmental proceedings and records shall not be unreasonably restricted." N.H. CONST. pt. I, art. 8. Orford Teachers Assoc. v. Watson, 121 N.H. 118, 119 (1981).

In applying the Right To Know Law, the New Hampshire Supreme Court has:

consistently construed the right to know law to further the statutory objectives of increasing public access to governmental proceedings. E.g., Society for the Protection of N.H. Forests v. Water Supply and Pollution Control Comm'n., 115 N.H. 192, 194 . . . (1975); Menge v. Manchester, 113 N.H. 533, 537 . . . (1973). Such construction has been based on the fact that the legislature has broadened RSA ch. 91-A's scope and application each time it has amended the statute. See Herron v. Northwood, 111 N.H. 324, 325 . . . (1971). The 1977 amendments were no exception; they included the preamble stating that the purpose of the staute was to ensure the "greatest possible public access" to the governmental decision-making process. Laws 1977, 540:1. Moreover, the amendment to RSA 91-A:3 . . . which requires governmental bodies to keep a record of decisions made in executive session limits the government from shielding its workings from public view by holding closed meetings.

Orford Teachers Assoc. v. Watson, 121 N.H. at 120-121.

With respect to the meeting at Councilor Gouin's home, the Court finds and rules that, based upon the evidence, the meeting held at the home of Councilor Gouin approximately one week prior to the March 25, 1991, council meeting constituted a public proceeding within the definition of RSA 91-A:1-a(IV). At the outset, it is clear that the Governmental Operations Committee is an agency of the City of Laconia, [12] such that its meetings are included in the term "public proceedings," as defined by section 1 of the statute. Selkowe v. Bean, 109 N.H. 247, 248 (1968) (citing RSA 91-A:1). "'All public proceedings are open to the public, and all persons are permitted to attend any meetings of these bodies and agencies . . .' whose meetings and transactions are defined as "public proceedings" by section 1." Selkowe, 109 N.H. at 248-49 (quoting RSA 91-A:2). The fact that a quorum of the City Council was not present at the meeting does not enable the defendants to circumvent the requirement of openness. Four "Straight Arrow" council members met and worked on the budget, including items within the jurisdiction and authority of the Governmental Operations Committee, which was fully assembled at Gouin's home. The political faction that met at Councilor Gouin's house can be characterized as a subcommittee of the Council to which the requirements of the statute apply. See Meyer and Marshall, The New Hampshire Right To Know Law: An Update, 20 N.H. Bar J. 98, 101 (1979). The meeting held at the home of Councilor Gouin constituted a public proceeding. While the committee may have a right to an executive session, the evidence presented indicated that there was no motion nor recorded roll call vote.

With respect to the illegal meeting held at Councilor Gouin's home, the Court orders that the Council and its members be and hereby are restrained and enjoined from committing such violations in the future pursuant to Chapter 91-A. RSA 91-A:8 (III).

The court further finds and rules that the City Council violated RSA 91-A by its failure to provide the plaintiff notice of the proposed executive session and termination resolution. The Court further finds and rules that the actions of the council were conducted in such a way that [13] there was no reasonable opportunity to claim and have an open, public hearing pursuant to RSA 91-A:3 (II)(a). Stoneman v. Tamworth School District, 114 N.H. 371 (1974).

The legislature has placed a high premium on the public's right to know, and recent legislative enactments (Laws 1969, 482:2; Laws 1971, ch. 327) indicate a legislative disposition to broaden the scope of and application of RSA chapter 91-A. See Herron v. Northwood, 111 N.H. 324, 327 (1971). "Section 2 [of RSA 91-A] requires that the same advance warning necessary for open meetings be given for executive sessions." 20 N.H. Bar. J. at 106. By providing the plaintiff, in clear, unequivocal and unambiguous language a statutory right to an "open meeting", RSA 91-A:3(II)(a), and then failing to provide him any notice, coupled with an attempt to hold an unnoticed executive session at approximately 2:00 a.m., the defendants effectively deprived him of that right. While the Right to Know Law does not provide authority for the attendance at an executive session of any non-body member, section 91-A:3(II)(a) does, by implication, provide for notice and attendance of the non-body member in giving the effected employee the right to request and have an open meeting.

The deceptive actions of Councilor Clairmont and other council members precluded the plaintiff from effectively exercising his statutory rights under the Right To Know Law. The testimony clearly indicates that the councilors knew of, discussed, worked on, and finally approved the resolution to remove the plaintiff at least, if not more than, one week prior to the March 25 meeting. Moreover, at least Councilor Clairmont, if not the other defendants, expected to propose the resolution the night of the council meeting. Such delusory actions deprive both the plaintiff and [14] the public of notice of the issue. Additionally, but for the fortuitous fact that the plaintiff's position entitled him to attend the closed-door executive meeting, he would not have known that the meeting concerned his employment status. Such deceptive actions fly in the face of the provisions and spirit of New Hampshire's Right To Know Law. With respect to Council's adoption of the resolution to remove the plaintiff in violation of RSA 91-A:3, the Court orders that, under the above circumstances, the Council's action must be and is invalidated. RSA 91-A:8(II).

With respect to disqualification, the Court finds that, as of now, there is insufficient evidence upon which to disqualify any of the defendant-city council members from future proceedings involving the plaintiff's employment. The plaintiff, however, shall be entitled to a hearing which is not violative of his due process rights. Due process under our constitutional republic has, as a primary consideration, the notion that no matter how rich or how poor, all of our citizens are entitled to fundamental fairness when the government seeks to take action that will deprive them of their property or liberty interests. Appeal of Plantier, 126 N.H. 500, 509 (1985) (quoting Appeal of Public Serv. Co. of N.H., 122 N.H. 1062, 1072 (1982)). The plaintiff has available to him, in the event of any future proceedings, such as those set forth in section 4.03 of the Laconia City Charter, review on certiorari, an extraordinary remedy. A petition for a writ of certiorari provides judicial review of governmental administrative action when no statute authorizes an appeal. The appropriate standard of review on certiorari is whether the agency acted illegally concerning its jurisdiction, authority or observance of the law or has abused its discretion or acted arbitrarily or [15] capriciously. Jaskolka v. City of Manchester, 132 N.H. 528, 531 (1989).

The plaintiff is awarded reasonable attorney's fees and costs associated with this action to be paid by the City of Laconia. The Supreme Court has emphasized the importance of assuring "that the public's right to know [sh]ould not depend upon the ability of individuals to finance litigation." Bradbury v. Shaw, 116 N.H. 388, 391 (1976). "The dual significance of the [attorney's fees] provision is that it serves both to deter potential violations and to encourage those aggrieved to bring action to enforce the statute." 20 N.H. Bar. J. at 118. The Court orders that the plaintiff be reimbursed for his reasonable legal expenses incurred in bringing this action to enforce his statutory rights under the Right To Know Law.

Ruling on the Plaintiff's requests for findings of fact and rulings of law:

GRANTED: 1, 2, 3, 4, 5, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 31, 34, 36, 39, 51.

DENIED: 40, 43, 44, 45, 52, 53, 54.

NEITHER GRANTED NOR DENIED: 6, 8, 9, 10, 20, 21, 29, 30, 32, 33, 35, 37, 38, 41, 42, 46, 47, 48, 49, 50.

Ruling on Defendants' requests for findings of fact and rulings of law:

GRANTED: 1, 2, 3, 4, 6, 8, 20, 21, 47, 48, 49, 51, 52, 53, 54, 55, 61-65, 67, 69, 70, 71, 79.

DENIED: 7, 9, 12, 13, 19, 22, 23, 25, 26, 27, 30, 32-36, 38, 46, 56, 72, 74, 75, 77, 78, 82, 83, 84, 85, 88, 89, 90.

NEITHER GRANTED NOR DENIED: 5, 10, 11, 14-18, 28, 29, 31, 37, 56-60, 66, 68, 73, 76, 80, 81, 87.


   23 May 1991       /s/   

DatedJames J. Barry, Jr.

Presiding Justice