Tardiff v. Belknap County Convention, Doc. No. 211-2016-CV-201 (Carroll Super. Ct., January 12, 2017) (Ignatius, J.)

Pages: 1




Thomas A. Tardiff


Belknap County Convention

Docket No. 211-2016-CV-00201


The petitioner, Thomas A. Tardiff of Laconia, filed a complaint for injunctive relief on August 23, 2016, against respondent, Belknap County Convention ("Convention"), alleging violations of RSA 91-A and RSA 24:9, in connection with meetings scheduled for April 4, April 6, and April 8, 2016.1 The respondent objects to the allegations regarding RSA 91-A and RSA 24:9 and filed a counterclaim seeking attorney's fees. The parties agreed to bifurcate the issues, and address the attorney's fees request after ruling on the petitioner's complaint.

On November 7, 2016, the court granted the request to bifurcate the issues. After a hearing on the merits of the complaint on November 16, 2016, the court finds and rules as follows.

Background and Facts

The City of Laconia issued a notice of April meetings of the Belknap County Commissioners. After listing those meetings, the notice read as follows:

"Other - the Board may also be in attendance at the following meetings:
Monday April 4, 2016 at 6:00 p.m.
(Delegation2 Meeting, conference room #1)
[2] Wednesday April 6, 2016 at 6:00 p.m.
(Delegation Meeting, conference room #1)
Friday April 8, 2016 at 5:30 p.m.
(Delegation Meeting, conference room #1)
Monday April 25, 2016 at 6:30 p.m.
(Laconia Airport Authority, Laconia City Hall)

There is no dispute regarding the adequacy of the notice of the April 4, 2016, meeting. The petitioner contends, however, that when the meeting was not held due to lack of a quorum, the Convention was required to issue a new notice of the April 6, 2016, meeting, with the required posting, mailing of the notice, and publication of the notice in the journal of the House of Representatives, pursuant to RSA 24:9-c and RSA 24:9-d and the Right to Know law, RSA 91-A. According to the petitioner, because there was no discussion or business undertaken, the meeting could not have been recessed, relying on Hull v. Grafton County, 160 N.H. 818 (2010). The April 8, 2016, meeting notice was similarly invalid, according to the petitioner, because again there was not a quorum present and no business was transacted. The meeting was continued to April 8, 2016. At the April 8 meeting, a quorum was presented and the Convention approved three action items - two budget transfers and a matter involving collective bargaining. The petitioner alleges the Convention actions on April 8, 2016, were invalid. For these reasons, the petitioner seeks an order to enjoin the Convention from recessing or continuing a meeting at which a quorum has not been achieved nor has any discussion commenced, and instead allow only a short recess for the Convention to set a new date, time and place. The petitioner also seeks to invalidate the actions taken or, as he phrased it, enjoin the Convention from encumbering funds [3] as approved on April 8, 2016, and finally, to enjoin further violations of RSA 91-A, RSA 24:9-c and RSA 24:9-d.

The respondent disagrees, asserting that the petitioner was fully aware of the date, place, and time the Convention would be meeting, the meetings were open to the public, and the meetings did not have to be published in the Journal as the circumstances for publication were not present. Because the petitioner has not been prejudiced, according to the respondent, the request for injunctive relief should be denied.


RSA 91-A:2, II (Supp. 2012) provides, in relevant part, that, "all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public." The term "meeting" is defined as follows:

[T]he convening of a quorum of the membership of a public body . . . , whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously . . . for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.

RSA 91-A:2, I. "Public body" includes "[a]ny legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto." RSA 91-A:1-a, VI(d) (Supp. 2012).

The petitioner argues that Hull compels a finding of a Right to Know violation in this case. In Hull the Supreme Court found that because no business had been transacted by the Grafton County Commissioners at a non-noticed gathering, no "meeting' had taken [4] place and the actions taken later at a noticed meeting of the Grafton County Delegation did not violate the Right to Know law. The petitioner extrapolates that if no business was conducted by the Convention in this case, there was no meeting and thus the "recess" was invalid and the actions taken on April 8, 2017 are invalid.

The court disagrees, finding the notice of the April 4, 2016, meeting, which included notice of additional meetings on April 6, and April 8, 2016, to be adequate under RSA 91-A. The public was informed of the dates, times and place the Convention would meet. The respondent took the administration action of recessing until April 6, 2016, because a quorum was not present, and took the same action at the April 6 meeting, recessing it until April 8, 2016. The petitioner has cited no provision, and the court is not aware of any provision, that prohibits the Convention from taking such an administrative act without a quorum present. In Town of Nottingham v. Harvey, 120 N.H. 889 (1980), the town noticed a meeting and conducted business, but was not able to complete its work. The Town recessed the meeting to another day, without issuing a new notice. The court found the continuation to the recessed date not to violate RSA 91-A, particularly as the first meeting was properly noticed and the second "was merely a continuation of the [first] meeting." Nottingham, 120 N.H. at 894.

This case somewhat differs from Nottingham in that the initial meeting and the subsequent meetings were noticed from the start. Business was not transacted at the first meeting, unlike the Nottingham case, but this does not alter the analysis of whether the goals of government transparency and public access have been affected. The Convention merely announced publicly the same information contained in the original notice, that is, that the Convention would again meet on April 6, 2016 (and ultimately, that the Convention [5] would meet on April 8, 2016) at the place and times designated in the original notice. The respondent appears to have anticipated the very real possibility of a lack of quorum and scheduled the further meetings, if they were needed. The public was given full notice of the three meetings. That a quorum was not present does not invalidate the notice given.

The court agrees with the respondent that the petitioner and the public in general have not been prejudiced by the way in which the notice was posted. The Convention identified three dates it would gather for business, and notified the public of the date, place and times for each meeting. When they were recessed for lack of quorum, the new dates, time and locations were unchanged from the initial notice, thus the public had full knowledge of where and when to appear at the second and third noticed meetings. Each meeting was open to the public. Hull, 160 N.H. at 826-27.

The notice strikes an appropriate balance between the needs of the public to have transparency and access to the workings of government and the needs of the public body to perform in a timely and efficient way. To read the statutes to require new notice for the second and third scheduled meetings of the Convention, notice which had previously been given, would result in delay without any greater transparency to the public or access to documents. Whether the Convention "recessed" or "continued" the meeting or simply went away to return at the next noticed date is not significant; the question is whether the petitioner and the public had access to the working of its government. The court finds that they did.

Turning now to the contention that the Convention violated RSA 24:9, the court does not read the statute as does the petitioner. RSA 24:9-c requires publication in the Journal of the House of Representatives only when the meeting would occur during a [6] legislative session, in which case the meeting must be held at the location of the House of Representatives session (in most cases Concord) and must be published in the Journal. In this case the meetings were not held during a legislative session. Thus, the court finds no basis to require the meetings to be published in the Journal. Irrespective of Journal publication, the meetings were fully noticed by other means. The Supreme Court found in Cheshire v. Keene, 114 N.H. 56, 59 (1974), that because the meetings were noticed to a great degree and there was no prejudice, there was no violation of RSA 24:9-a through 24:9-d. This court reaches the same conclusion.

RSA 24:9-d requires the clerk of the convention to mail each member notice of a Convention meeting at least 7 days in advance. The petitioner did not contest the notice of the April 4, 2016 meeting. The court does not read RSA 24:9-d to require new mailings for subsequent meetings noticed for April 6 and April 8, 2016.

The petitioner seeks the following remedies for the alleged violation of RSA 91-A: 1) invalidation of the actions taken April 8, 2016; and 2) injunctions to prevent future recess, and continuation of meetings that have not reached a quorum. The court does not find either of these remedies to be warranted under the circumstances. Although the statute provides the court with the authority to "invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter," it may do so only "if the circumstances justify such invalidation." RSA 91-A:8 (Supp. 2012). The determination as to whether a violation requires the invalidation of a certain action is entirely within the court's discretion. See Hull, 160 N.H. at 823 (2010); see also Lambert v. Belknap County Convention, 157 N.H. 375, 381 (2008). "The issuance of injunctions, [7] either temporary or permanent, has long been considered an extraordinary remedy." N.H. Dep't. of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007).

In this case there is no evidence that the Convention took any action during the first two noticed meetings, other than to recess to a subsequent date. There was no attempt to conduct business outside the presence of the petitioner or the public at large or to conduct business at a place or time that the public could not easily locate. The petitioner did in fact appear at the meeting at which business was conducted. The meeting at which the actions were taken was held pursuant to the initial notice that provided the necessary information regarding the date, place and time of the meeting. Neither the petitioner nor the public at large were prejudiced by the Convention's actions. The Convention's decision to post three meetings, and recess to the further dates each time it failed to reach a quorum, satisfies the goals of RSA 91-A of "public access to the actions, discussions, and record of all public bodies, and their accountability to the people." RSA 91-A:1.

There being no violation of RSA 24:9-c, RSA 24:9-d, or RSA 91-A, the court finds no basis to invalidate the actions taken on April 8, 2016. The petitioner's request to invalidate those actions is DENIED.

Neither does the court find a basis to enjoin the Convention from future scheduling of meetings and recessing and continuing to later noticed dates when a quorum is not achieved. The petitioner's request for injunctive relief is DENIED.

Finally, the issue of attorneys' fees was bifurcated by agreement, to be addressed after ruling on the complaint. The court will schedule a hearing to address the defendant's request for attorney's fees.

[8] Conclusion

The petitioner has failed to demonstrate that the respondent's notice of the Convention meetings on April 4, April 6, and April 8, 2016, were in violation of RSA 91-A RSA 24:9-c or RSA 24:9-d. The petitioner's requests for invalidation of the actions taken at the April 8, 2016 meeting, and injunction regarding future meetings are DENIED. The court will schedule a hearing to address the defendant's request for attorney's fees.

So Ordered.

January 12, 2017    /s/   

Amy L. Ignatius

Presiding Justice

1 Because of a conflict, the case was transferred to Carroll County Superior Court.

2 According to the parties, "Delegation" is another name for the Convention.