STATE OF NEW HAMPSHIRE
CARROLL, SS SUPERIOR COURT
Docket No. 2009-CV-121
Paul Punturieri
v.
Town or Moultonborough
ORDER
Pending before the court is the petition filed by Paul Punturieri (Mr. Punturieri) under RSA Chapter 91-A, the New Hampshire Right to Know Law, asserting that the Town of Moultonborough (Town) violated that law in its hiring of a police chief and asking that the court order the invalidation of that hiring. The Town objects, asserting that no violation of the Right to Know Law occurred, asking that the court dismiss the petition, and requesting reimbursement of its attorney's fees.
The hearing in this case was held on October 5, 2009. By agreement of the parties, the court may consider as evidence the documents submitted by Mr. Punturieri with his petition and the documents submitted by the Town at the hearing. Upon hearing, and upon consideration of the submitted documents, of the pleadings and arguments of the parties, and of the law, the court determines that no violation of the Right to Know Law occurred, that Mr. Punturieri's requests for relief are denied and the petition dismissed, and that the Town's request for an award of attorney's fees is denied.
RSA 91-A:3, I provides that:
(a) Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information, or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No public body may enter nonpublic session, except pursuant to a motion properly made and seconded.
(b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present.
[2] (c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.
Of the exemptions under paragraph II mentioned in RSA 91-A:3, I(b), two are relevant here:
RSA 91-A:3, II(b) provides that "[t]he hiring of any person as a public employee" may be considered or acted upon in nonpublic session; and
RSA 91-A:3, II(c) provides in relevant part that "[m]atters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting" may be considered or acted upon in nonpublic session.
Mr. Punturieri alleges several violations of these Right to Know Law provisions. The initial and central point he asserts is that the Moultonborough SelectBoard met in nonpublic session to discuss, plan and coordinate the process for hiring the police chief, and to decide on who would be hired as police chief, when the Right to Know Law requires such discussions and decisions to be made in public session. Mr. Punturieri also asserts that, even if the hiring of the police chief is subject to an exemption under RSA 91-A:3, II, the process used by Moultonborough nonetheless violated the requirements of the Right to Know Law. The court takes up each of these two assertions in turn.
Mr. Punturieri first asserts that the hiring of the Moultonborough police chief is not subject to exemption from the Right to Know Law's public session requirements. Resolving this issue requires the court to determine whether filling the position of Moultonborough police chief involves hiring a person as a public employee or electing or appointing a person as a public official. See Lambert v. Belknap Cty. Convention, 157 N.H. 375, 379-80 (2008).
The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. The law helps further our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Although the statute does not provide for unrestricted access to public records and proceedings, to best effectuate the statutory and constitutional objective of facilitating access to all public documents and proceedings, we resolve questions regarding the Right-to-Know Law with a view to providing the utmost information.
[3] Id. at 378-79 (internal quotations and citations omitted).
The court is to "construe provisions favoring disclosure broadly, while construing exemptions narrowly." Id. at 379 (citation omitted). "[W]hen a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure." Id. at 379 (internal quotation and citation omitted).
"All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies." RSA 91-A:2, II. Pursuant to RSA 91-A:3, I, "[b]odies or agencies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II," and "[n]o body or agency may enter nonpublic session, except pursuant to motion properly made and seconded" that "state[s] on its face the specific exemption under paragraph II ... relied upon as foundation for the nonpublic session."
As noted above, paragraph II(b) permits a body such as the Moultonborough Board of Selectmen to "consider[] or act[] upon ... [t]he hiring of any person as a public employee" in nonpublic session. RSA 91-A:3, II(b).
The Lambert case involved an appointment to fill an interim vacancy in the position of county sheriff pending the next election. Lambert, 157 N.H. at 377.
"Filling" a "vacancy ... in the office of the county sheriff," RSA 661:9, I, is not equivalent to "hiring" a "person as a public employee," RSA 91-A:3, II(b). In common understanding, public officers are elected or appointed, not hired. See Webster's Third New International Dictionary 1836 (unabridged ed. 2002) (defining "public officer" as "a person holding a post to which he has been legally elected or appointed and exercising governmental functions" (emphasis added)). Consistent with that understanding, a person is normally "elected" to the office of the county sheriff for a specified term. See N.H. Const. pt. II, art. 71; RSA 653:1, V.
The Lambert Court determined that in appointing an interim sheriff pending the next election, "the Convention is not 'hiring' or 'engag[ing] the personal service of' that occupant or incumbent 'for a fixed sum.' Webster's Third New International Dictionary 1072 (unabridged ed. 2002) (defining 'hire')." Lambert, 157 N.H. at 380. The Court noted that "the superior court, not the Convention, has the authority to remove a sheriff for official [4] misconduct, see RSA 661:9, IV, and, otherwise, the interim sheriff is accountable only to the people." Lambert, 157 N.H. at 380.
Thus, the Convention is not "hiring" the occupant for the office of the sheriff, but is instead designating an occupant for, or placing an occupant in, the vacant office in lieu of an election, and as such is essentially "appointing" a person to the office. Webster's Third New International Dictionary 105 (unabridged ed. 2002) (defining "appoint" as "to assign, designate, or set apart by authority ... [or] to place in an office or post"); cf. Board of Educ. v. Freedom of Inf. Comm'n, 41 Conn. Supp. 267, 566 A.2d 1380, 1381 (Conn. Super. Cr. 1988) (interpreting the term "filling a vacancy" as constituting an "appointment").
In this case, both parties refer in pleadings and argument to the police chief being "hired" and to the process at issue as the "hiring process." The Town does so intentionally, arguing that the process involves the hiring of a high ranking public employee, not the election or appointment of a public official. On the other hand, the court infers that Mr. Punturieri uses the term "hire" colloquially, without intending to concede that the Town was "hiring" a police chief under the exemption applicable to the hiring of public employees, RSA 91-A:3, II(b). Likewise, the court infers that the Town's notice inviting the public to the SelectBoard meeting "to appoint and swear-in" the new police chief was intended to accurately describe the SelectBoard's authority under RSA 105:1, and not to concede that the position is an "elected or appointed" position within the meaning of Lambert, 157 N.H. at 379-80.
The court concludes that the appointment of a person as the Moultonborough police chief by the SelectBoard under 105:1 is not equivalent, the Right to Know Law purposes, to the appointment of a person to serve as sheriff until the next election by the County Convention. The sheriff may be removed only by the superior court, and only for official misconduct, see RSA 661:9, IV, and is otherwise "accountable only to the people." Lambert, 157 N.H. at 380. The police chief appointed by the SelectBoard may be suspended or dismissed by the SelectBoard "for cause" and subject only to the right to a hearing in superior court to determine the reasonableness of the action. RSA 105:2-a. Although the police chief is a high ranking officer with supervisory authority and responsibility, the person [5] in that position is nonetheless a "police officer." See RSA 105:1 ("The selectmen may designate one of the police officers as chief of police . . . ."). Further, the Moultonborough police chief is engaged "for a fixed sum," Lambert, 157 N.H. at 380, in this case at the Town's Grade XXV Step 5.
For the foregoing reasons, the court determines that the Moultonborough police chief, who is "appointed rather than elected," RSA 105:2-a, is for purposes of the Right to Know Law, RSA Chapter 91-A, a person hired as a public employee, RSA 91-A:3, II(b), whose employment may be considered or acted upon in nonpublic session.
Having determined that the Town could consider the hiring of the police chief in nonpublic session, the court turns to Mr. Punturieri's assertions that the Town did not follow the rigorous requirements set out in the Right to Know Law for making hiring decisions in nonpublic session. Among other things, Mr. Punturieri asserts that he was provided with erroneous information about the process being used and about the controlling statutory citation, and that the Town set a precedent when it previously set the process for the hiring of the Town Planner in public session. None of these assertions state a claim under the Right to Know Law. It was, for example, unfortunate that the Town Administrator told Mr. Punturieri at one point that "RSA 91-A (b)" is controlling instead of providing him with the correct citation to RSA 91-A:3, II(b), and that a member of the SelectBoard told Mr. Punturieri that no one from Carroll County would be on the selection committee when what was intended was that no member of the Carroll County law enforcement would be on the committee. However, these and other asserted misstatements do not constitute, or create, violations of the Right to Know Law. Likewise, the court has no information before it concerning whether the Town could have used nonpublic sessions in the Town Planner hiring process, but assuming without deciding that it could have, a decision to do so in public session does not bind the Town to do so when considering other positions.
Mr Punturieri also asserts that the strict requirements set out in RSA 91-A:2, II and RSA 91-A:3, I for announcing dates of meetings, for posting notice of meetings, and for going into nonpublic session were not met. The court has reviewed the minutes of the May 21, 2009 public and nonpublic sessions of the SelectBoard, the July 16, 2009 public and [6] nonpublic sessions of the SelectBoard, the notice of the July 27, 2009 meeting of the police chief screening panel and the minutes of that meeting, which was held entirely in public session, the notice of the August 6, 2009 meeting of the police chief screening panel and the minutes of that meeting's public and nonpublic sessions, and the notice of the August 20, 2009 SelectBoard meeting and the minutes of the SelectBoard's public and nonpublic sessions that date. The records before the court show that the meetings of the SelectBoard and of the police chief screening panel were properly noticed and that, consistent with RSA 91-A:3, I, every nonpublic session was preceded by a motion properly made in public session stating the specific exemption under RSA 91-A:3, II relied on as the reason for the nonpublic session.
As Mr. Punturieri correctly points out, there is one anomaly. At the July 16, 2009 SelectBoard public session, there was a motion made and seconded, and approved by roll call vote, to go into nonpublic session not under RSA 91-A:3, II(b), concerning the hiring of a public employee, but under RSA 91-A:3, II(c), concerning matters which, if discussed in public, would likely affect adversely the reputation of a person, other than a member of the public body itself. Although more properly nonpublic under RSA 91-A:3, II(b), upon review of the minutes of the nonpublic session at issue the court agrees with the Town that because this session concerned the background check process, it also qualified for nonpublic consideration under RSA 91-A:3, II(c).
In sum, the central assertion Mr. Punturieri makes is that, while things such as candidate interviews and review of resumes and other personnel documents can properly occur in nonpublic session, the balance of the hiring process does not qualify for consideration in other than public session. For the reasons set out above, the court disagrees, and instead determines that the process used by the Town of Moultonborough to select and hire the chief of police complied with the Right to Know Law, RSA Chapter 91-A.
The Town seeks attorney's fees for having to defend this action. Mr. Punturieri's pursuit of this action was not, however, in bad faith, frivolous, unjust, vexations, wanton, or oppressive as to warrant an order for attorney's fees to be paid to the Town under RSA 91-A:8, I-a, nor frivolous or unreasonable, or without any reasonable basis in the fact provable [7] by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be, so as to warrant an award of attorney's fees under common law, see e.g. Keenan v. Fearon, 130 N.H. 494, 502 (1988); Harkeem v. Adams, 117 N.H. 687, 691 (1977). The Town's request for attorney's fees is denied.
So ordered.