Tardif v. Laconia Board of Assessors, Doc. No. 211-2001-E-117 (Belknap Super. Ct., July 16, 2002) (Perkins, J.)




Thomas A. Tardif


Laconia Board of Assessors, et al.

No. 01-E-0117


The petitioner, Thomas A. Tardif seeks a declaration from this Court that the respondents, the City of Laconia Board of Assessors and Michael R. Randall in his capacity as Chairperson of the Laconia Board of Assessors, violated the New Hampshire right to know law (RSA 91-A) by conducting a meeting that was not open to the public. Before the Court are cross motions for summary judgment in which all parties agree on the facts. After careful consideration, the respondents' cross-motion for summary judgment is GRANTED and the petitioner's motion is DENIED.

In order to prevail on summary judgment, the moving party must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." RSA 491:8-a, III. A fact is "material" if it affects the outcome of the litigation. Horse Pond Fish and Game Club v. Cormier, 133 N.H. 648, 653 (1990). In considering a party's motion for summary judgment, the Court examines the evidence submitted and makes all necessary inferences from that evidence in the light most favorable to the non-moving party. Gould v. George Brox, Inc., 137 N.H. 85, 87 (1993). "The non-moving party may not rest on mere allegations or denials in his pleadings, ...[the] response ...must set forth specific facts showing that there is a genuine issue for trial." RSA 491:8-a, IV. "To the extent that the non-moving party either ignores or does not dispute facts set forth in the moving party's affidavits, they are deemed to be admitted for the purposes of the motion." New Hampshire Division of Human Services v. Allard, 141 N.H. 672, 674 (1997).

[2] As noted above, the parties agree on the facts, but dispute the law. Indeed, the facts in this case are very straightforward. A public meeting of the Laconia Board of Assessors (hereafter the "Board") conducted one of its regular 6:30 p.m. public meetings on June 12, 2001. Announcements of the meeting noted that prior to the meeting, the Board would drive through various campgrounds. The Board members were to be transported in city vehicles. Interested people were invited to follow in their own vehicles.

At 6:30 p.m. on June 12, 2001, a quorum of the Board and the tax assessor convened briefly to organize itself, and to inform those present of the location of the sites it would be visiting and the order of those visits. Since the Board would be viewing trailers on this visit, the city assessor also briefly reviewed the criteria established by the New Hampshire Supreme Court for determining whether a trailer could be taxed as a building. During this preliminary portion of the meeting, the petitioner was present and personally invited to follow the Board. He expressed concern over when the meeting would be reconvened and indicated that he did not wish to follow the Board. The Board assured him that it would reconvene no earlier than 7:30 p.m. The Board also warned however that it could not be sure exactly what time it would return because of traffic congestion in the area due to motorcycle week.

The Board members then proceeded to enter one vehicle. When the petitioner saw the Board members preparing to leave in one vehicle, he argued that by doing so, they would be conducting a meeting that was not open to the public. Apparently, no one from the Board responded to this admonition. Unaware that the petitioner had changed his mind and had in fact decided to follow it on its site visit, the Board left. The petitioner lost the Board's vehicle in traffic and was unable to follow it.

The Board drove through two campgrounds and observed campers/trailers located at those campgrounds. The respondents claim, and the petitioner does not dispute, that no discussions regarding [3] the issues involved in the matter before the Board were discussed in the car. Thus, for the purposes of the pending motions, the Court deems these facts to be true. See id. Individual board members simply viewed the structures at issue so that each could make more informed decisions about those properties during the meeting. At one point, the owner of one of the subject campgrounds, a Mr. Latour, approached the vehicle and expressed some concerns. The Board chairman informed Mr. Latour that no discussion on the issue could take place on the site visit. One of the Board members attempted to ask a question about Mr. Latour's concerns but was prohibited from doing so by the Board chairman.

The meeting reconvened at 7:42 p.m. The minutes of the meeting reflect that the driving tour was taken. The minutes also indicate the nature of Mr. Latour's concerns but that no discussion pertaining to the meeting took place in the vehicle. The instant litigation soon followed.

The sole issue before this Court is whether a meeting that should have been open to the public took place in the vehicle. The petitioner argues that a meeting, as defined by RSA 91-A:2, takes place whenever a quorum of the Board is convened. The petitioner argues that the Board "acted upon" matters over which it had supervision while in the vehicle. The petitioner also asserts that a "public proceeding" took place in the vehicle and therefore, it should have been open to the public.

The petitioner also claims that the alleged meeting held in the car was improperly noticed and that no minutes of that meeting were produced.

The preamble to this state's right to know law provides that:

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 pubic access to the actions, discussions and records of all public bodices, and their accountability to the people.

RSA 91-A:1. "'The ordinary rules of statutory construction apply to [the Court's] review of the Right-to-Know Law, and [the Court] accordingly look[s] to the plain meaning of the words used." Goode v. N.H. Office of the Legislative Budge Assistant, 145 N.H. 451, 453 (2000) (quoting Union [4] Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996)). "'[The Court] resolve[s] questions regarding the law with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents.'" Id. (quoting Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 545 (1997)). "As a result, '[the Court] broadly construe[s] provisions favoring disclosure and interpret the exemptions restrictively.'" Id.

RSA 91-A:2, II directs that "[a]ll public proceedings shall be open to the public and all persons shall be permitted to attend any meetings of those bodies or agencies" with some exceptions not applicable in this matter. "Public proceedings" are defined to mean "the transaction of any function affecting any or all citizens... ." RSA 91-A:1-a. RSA 91-A:2, I provides that "a 'meeting' shall mean the convening of a quorum of the membership of a public body, ...to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power."

The undisputed facts indicate that no "public proceeding" or "meeting" took place in the city vehicle on June 12, 2002. First, no function affecting any or all citizens took place. Nor is there any dispute that the Board did not discuss, nor did it act upon any matters over which the Board had supervision. As such, these facts are deemed true for the purposes of the pending motions. See N.H. Div. of Human Svcs., 141 N.H. at 674. Since no meeting and/or public proceeding took place, no separate notice or minutes were required beyond what the Board had already done. Each individual Board member was simply permitted the opportunity to observe two properties that would the subject of the meeting later on that evening. They could have done this individually as well. That they were sitting next to one another while observing the campgrounds is of no consequence.

Nor were each Board member's passive observations while in the car tantamount to the taking of evidence as argued by the petitioner. To hold otherwise would defy logic and the plain meaning [5] of the statute. Regardless, the public was invited to follow the board to observe the same properties. The Board indicated exactly which properties would be viewed and where they were located. Moreover, before the drive, the Board indicated to those present what factors/criteria its members should be looking for while driving past these properties. The petitioner indicated that he did not want to follow the Board. The only thing the public could not observe is each Board member's mannerisms and expressions during the drive. The petitioner has failed to offer any reason why such observations are required by RSA 91-A or would be necessary to preserve the spirit of the right to know laws in this state.

Mr. Latour's unanticipated comments were promptly rebuffed and no discussion about those comments or any other aspect of the site visits was permitted. Upon return to the regular meeting, Mr. Latour's comments were noted for the record and reflected in the meeting minutes. The Court agrees with the respondents that "[t]he unsolicited and unanticipated comment offer by Mr. Latour cannot as a matter of law transform the site visit into a violation of RSA 91-A." Resps.' Obj. to Mot. For Summary Judgment and Cross-Mot. For Summary Judgment at 6.

As such, the petitioner's motion for summary judgment is DENIED. The respondents' cross-motion for summary judgment is GRANTED.


Date: July 16, 2002    /s/