Pierce v. Town of Tilton, Doc. No. 211-1994-E-128 (Belknap Super. Ct., April, 14 1995) (Fauver, J.)

[1]

THE STATE OF NEW HAMPSHIRE

BELKNAP, SS SUPERIOR COURT
NO. 91-E-098

BETTY PIERCE

v.

TOWN OF TILTON

Docket No: E-94-128

ORDER

This is an action brought pursuant to RSA chapter 91-A, New Hampshire's Right-to-Know Law. The plaintiff seeks a ruling that the defendant violated the Right-to-Know Law, as well as invalidation of the actions of the defendant's Board of Selectmen, reinstatement, back wages, costs, and attorney's fees. The Court heard the merits of the issues on April 10, 1995, and makes the following findings.

The plaintiff was employed by the defendant as the Town Administrator from March 1987 until June 16, 1994. She was terminated by the defendant's Board of Selectmen on June 15, 1994, at a meeting where the Board adopted and signed a letter of termination. The plaintiff, in an effort to further understand the reasons for her termination, filed a Right-to-Know Law request for minutes of an executive session held on May 26, 1994. This request was made in writing on August 15, 1994. when no response was forthcoming from any representative of the defendant, the plaintiff brought this action, alleging a violation of RSA chapter 91-A, the Right-to-Know Law.

At a regular meeting of the defendant's Board of Selectmen [2] held on May 26, 1994, Selectman Victoria Virgin informed the plaintiff that the Board wished to discuss her job performance. Prior to this meeting, the Board had discussed the plaintiff's job performance on approximately three occasions, including at a public session of the Board's meeting of March 24, 1994. Although the plaintiff was in attendance as a function of her position as Town Administrator, she did not receive notice that the Board might discuss her employment.

At the May 26 meeting, the plaintiff was offered the opportunity to hold the discussions in nonpublic sessions, but she requested that any discussions of her employment be held in public session. During this discussion, the members of the Board raised several concerns with the plaintiff's job performance, including delivery of mail to the selectmen and availability to the public. (Ex. 1.) The plaintiff responded to the criticisms, but having only recently recovered from pneumonia, she was unable to continue. She asked that the meeting be postponed because she was feeling ill, and left the meeting distraught. (Ex. 1.)

After the plaintiff left the meeting, the Board voted unanimously to enter into a nonpublic session to discuss the plaintiff's responses to their concerns. (Ex. 1.) Once in the nonpublic session, however, Selectman Kenneth Money immediately expressed his apprehension that continuing the meeting would go against the express request of the plaintiff to hold the discussions in public sessions. Thereafter, the Board unanimously voted to seal the minutes of the nonpublic session and to re-enter [3] public session. (Ex. 11.) The reason given was that because of the plaintiff's manner of exit from the meeting, the sealing of the record was necessary to protect her reputation. The Court finds that the plaintiff's employment status was not discussed, with the conversation being limited to procedural matters. Although the meeting minutes do not indicate what occurred after that, Selectmen William Joscelyn and Kenneth Money both testified that the meeting was adjourned,

On June 2 and June 16, 1994, the Board again discussed the plaintiff's job performance. Each time, the plaintiff was present and requested that the meetings be held in public session. At the June 16 meeting, the Board reviewed a termination letter drafted by defendant's counsel. The members of the Board adopted the contents of the letter by signing it, and presented it to the plaintiff. (Ex. 4.) Selectmen Joscelyn and Money testified that the decision to terminate the plaintiff's employment was not made until the letter was signed, but Selectman Virgin's deposition testimony indicates that the decision was made when the Board met with defendant's counsel. (Ex. 13, at 5.)

The plaintiff, disagreeing with the reasons for her termination, wished to investigate how the decision to terminate her employment was made. She made a verbal request for the minutes of the May 26 nonpublic session of Catherine Woessner, the administrative secretary, at the end of July 1994. After waiting a week for a response, the plaintiff called the town offices, and spoke to Woessner again, who said she had learned from the Acting [4] Town Administrator, Alice MacKinnon that the minutes were nonpublic and could not be disclosed.

The plaintiff consulted an attorney, who prepared a written request for the plaintiff. On August 15, 1994, the plaintiff presented this request to the Town Clerk, Gayle Twombly, although the plaintiff knew that she would not have the minutes in her possession. (Ex. 8.) Twombly indicated that she did not have the minutes, but that she would look into the matter and contact the plaintiff. About August 25, 1994, the plaintiff still had no response, so she called Twombly. Twombly had been unable to investigate, as she had been out sick, but promised again that she would check further. The next day, Twombly wrote a letter to the plaintiff stating that the plaintiff would hear from the Selectmen's office. The plaintiff never received any correspondence from that office, nor the requested minutes, until she filed this suit.

The members of the Board of Selectmen stated that they were unaware of the plaintiff's request until approximately September 1, 1994 or thereafter, when they first saw the letter to Gayle Twombly. (Ex. 8.) The members had, however, heard from Twombly at their August 18, 1994 meeting that someone had requested a copy of the May 26 nonpublic session minutes. At this meeting, the Board again voted to seal the minutes of the nonpublic session to protect the reputation of the plaintiff. Once the Board officially received a copy of the plaintiff's request, the matter was immediately referred to counsel in order to determine whether the [5] minutes could be released only to the plaintiff, whether they had to be released to the public, or whether they could remain sealed. This action was filed on September 23, 1994.

RSA chapter 91-A is designed to promote public access to records of all public bodies by permitting any citizen to inspect any public record. RSA 91-A:1, A;4. Under RSA 91-A:3, meetings of public bodies or agencies must be public, and the meetings may go into executive, nonpublic session only for specific reasons. RSA 91-A:3, II. In the present case, it should be noted that nothing exempts the defendant from the provisions of the Right-to-Know Law, which by its own terms applies to any board of any town. RSA 91-A:1-a, IV. Moreover, minutes of executive sessions are not automatically exempt from the provisions of the Right-to-Know Law. Orford Teachers Assoc. v. Watson, 121 N.H. 118, 121 (1981).

A public body may not go into nonpublic session for the purpose of considering the dismissal of a public employee without first giving the employee notice that the employee's dismissal would be considered. Johnson v. Nash, 135 N.H. 534, 135 N.H. 538 (1992). Furthermore, the affected employee has the right to request that any consideration of dismissal be conducted in public sessions, RSA 91-A:3, II(a). Still, a public body does not violate the Right-to-Know Law by going into executive session "so long as no final action was taken by the committee and no recommendation . . . was formulated or agreed upon." Selkowe v. Bean, 109 N.H. 247, 250 (1968); Herron v. Northwood, 111 N.H. 324, 326 (1971).

In the present case, the Board of Selectmen did go into [6] executive session to discuss the plaintiff's responses to their questions and her work history. They did not reach a final decision on the matter, however, as they immediately exited the nonpublic session, limiting their discussion to procedural matters calculated to protect the plaintiff. While the Selkowe case was decided under a previous version of the Right-to-Know Law, which permitted executive sessions more broadly than the current version does, even though the Board of Selectmen here technically violated the current statute in holding a nonpublic session, no action was taken in the nonpublic session, obviating the need for invalidation under RSA 91-A:8.

In addition, the five-day deadline contained within the statute is not absolute, and the statute permits the public agency to take additional time to make its records available. RSA 91-A:4, IV. Here, the plaintiff presented her request to an official she knew would not have the records in her possession. Meanwhile, a failure of communication prevented the Board from realizing that an official request had been made. Once the members of Board discovered that the plaintiff had made an official request for the minutes of the executive session, they immediately contacted counsel in order to determine the proper course of action in order to comply with the statute. Accordingly, the Court finds that the defendant's actions did not violate the plaintiff's rights under the Right-to-Know Law because no final action was taken in the nonpublic session, and the Board of Selectmen made a good faith effort to comply with the plaintiff's request. PETITION DISMISSED.

[7] Pursuant to RSA 491:15, this opinion constitutes my findings of fact and conclusions of law. Any of the parties' requests for findings and rulings not granted or denied herein, either expressly or by implication, are determined to be unnecessary for resolution in light of the Court's decision.

SO ORDERED.

DATED:    4/14/95       /s/   

Peter H. Fauver

Presiding Justice