Ettinger v. Town or Madison, Doc. No. 212-2010-CV-071 (Carroll Super. Ct., September 15, 2010) (Houran, J.)

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Thomas and Margaret Ettinger


Town of Madison Planning Board

Docket No.: 2010-CV-071


The plaintiffs, Thomas and Margaret Ettinger ("the Ettingers"), allege that the defendant, the Town of Madison Planning Board ("the Board"), violated RSA 91-A ("the Right to Know Law") when it met as a body in a "non-meeting" to review and discuss emails sent by its attorney, letters from the Ettingers' counsel, and a memorandum prepared by an administrative assistant detailing an opinion that the Board's counsel had provided to her. The Board and the applicant in the underlying matter, the Pomeroy Limited Partnership ("Pomeroy"), object. After hearing, and after consideration of the facts, the parties' arguments, and the applicable law, the court finds and rules as follows.

The Ettingers own property in Madison, New Hampshire, abutting property owned by Pomeroy. On May 13, 2009, Pomeroy filed an application with the Board seeking subdivision review and boundary line adjustment ("the Pomeroy Application"). Conditional approval was granted on June 3, 2009.

On March 3, 2010, the Board planned to meet to consider whether to grant final approval on the application. Board meetings normally begin around 7 p.m. Instead, at 7 p.m., the Board left the meeting room with its Administrative Assistant, Wendy Huff, and went into what it referred to as an executive session, later referred to as a non-meeting to receive legal advice relayed from counsel. While in that session, the Board reviewed letters from the Ettingers' attorney, emails from its counsel, and a memorandum that Ms. Huff had written detailing advice the Board's counsel had given her earlier that day over the telephone. The advice from the Board's attorney concerned whether the Board was required to hold a public hearing to consider whether the conditions of the Pomeroy's application approval had been [2] met. The session with Ms. Huff lasted about 30 minutes, of which the Board spent approximately 25 minutes reading the documents. After reading the documents, Board members then asked Ms. Huff to clarify some of the points in her memorandum detailing the Board's attorney's advice, and the Board members discussed the legal advice among themselves. When the Board returned to the meeting room at 7:34 p.m., it convened a public meeting, allowed the Ettingers' attorney to speak, and then granted final approval on the Pomeroy Application.

On March 8, 2010, the Ettingers requested a copy of the minutes of the "executive session." The Board's chairman responded on March 10, 2010, explaining that the session was not in fact an executive session, but was instead a "non-meeting" under RSA 91-A:2, I(c), to receive legal advice relayed via telephone earlier in the day to the Administrative Assistant.

The Ettingers now petition the court requesting a determination that the March 3, 2010 session was held in violation of the Right to Know Law, and requesting that the court award them their attorney's fees and invalidate the decision of the Board granting final approval to the Pomeroy application. Specifically, the Ettingers argue that the Board's actions on March 3, 2010 constitute an illegal nonpublic session, and do not fall within the meaning of "consultation with counsel." The Town and Pomeroy object, arguing that the Board did not violate the Right to Know Law and that in any event, the relief the Ettingers seek is unwarranted.

Although there are exceptions not relevant here, see e.g. RSA 91-A:3, the Right to Know Law, RSA 91-A:2, II, provides, in pertinent part, "[a]ll meetings . . . shall be open to the public." RSA 91-A:2, I, provides that "meeting" means "the convening of a quorum of the membership of a public body . . . 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(c), provides, however, that the definition of a "meeting" shall not include "consultation with legal counsel."

The core issue presented in this case is whether the session the Board had before its public meeting constitutes "consultation with legal counsel" within the meaning of the Right to Know Law. As the parties have ably pointed out, there are fundamental interests at work [3] here. On one hand, 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." Lambert v. Belknap Cty. Convention, 157 N.H. 375, 379 (2008) (citation and quotation omitted). On the other hand, as this portion of the Right to Know Law recognizes, "confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction," Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966), see Society for Protection of N.H. Forests v. Water Supply & Pollution Control Comm'n, 115 N.H. 192, 194 (1975) ("Absent specific legislative intent to plainly and unmistakably deprive the commission of the benefits of advice of counsel, the commission's receipt of legal advice cannot be deemed a violation of RSA 91-A:3").

The court concludes that, to the extent the Legislature may have viewed these interests as competing, it has reconciled that competition in the language of the Right to Know Law, permitting, through the "consultation with legal counsel" provision in RSA 91-A:2, I(c), public bodies to have attorney-client confidential communications without disclosure to the public, and at the same time ensuring the greatest possible public access to the actions, discussions and records of public bodies by limiting the circumstances under which those communications may occur.

In interpreting the language of a statute, the court must ascribe the plain and ordinary meaning to the words used and consider them not in isolation but in context of the overall statute. Pennelli v. Town of Pelham, 148 N.H. 365, 366 (2002). "In so doing, we are better able to discern the legislature's intent, and therefore better able to understand the statutory language in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted). The court will not consider what the legislature might have said, or add language that the legislature did not see fit to include. ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 697 (2007).

The plain meaning of "consultation" is a conference or meeting for deliberation, discussion, or decision. WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY 437 (1996). The plain meaning of "with" is accompanied by or accompanying. Id. at 2183. Thus, a [4] "consultation with legal counsel" is a conference or meeting for discussion accompanied by or accompanying the public body's legal counsel.

The Board and Pomeroy advance policy and practical reasons in support of permitting public bodies, and particularly local volunteer public bodies like planning boards, to meet outside of a formal public or nonpublic meeting to read legal advice from the body's attorney set out in a written document, or to receive legal advice conveyed from the body's attorney through a third person such as the body's administrative assistant or the body's chairperson. Because the Board here did more than that, this order does not reach or decide whether the "consultation with legal counsel" clause permits such actions.

The Board and Pomeroy also advance policy and practical reasons in support of interpreting "consultation with legal counsel" to include discussion of advice received from legal counsel. Those discussions did occur here, but the policy and practical issues asserted in support of that practice are for the Legislature, not the court, to consider. The court instead has before it the plain meaning of the "consultation with legal counsel" clause adopted by the Legislature, and that clause is not amenable to an interpretation which would include discussions by the members of a public body in a non-meeting about legal advice received from their attorney who is not present.1

To the extent a plain reading of RSA 91-A:2, I(c) leaves any doubt, the Legislature itself has erased any such doubt by elsewhere in the Right to Know Law plainly permitting public bodies to have discussions concerning legal matters without the body's attorney present, but only for "consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or an subdivision thereof, or against a member thereof because of his or her membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled," RSA 91-A:3, II(e). Thus, the Legislature has set up a process by which public bodies may meet without legal counsel present to discuss legal issues, but only to consider or negotiate pending or threatened legal claims against the body or its members. The court concludes that the Legislature has [5] demonstrated that it is capable of carving out specific legal matters about which public bodies can hold discussions without their attorneys, and did not in doing so include the kinds of discussions which occurred here.

The Board conducted a non-meeting, at which its attorney was not present and at which the Board discussed its attorney's legal advice. Such discussions are not contemplated by the plain meaning of the Right to Know Law as an exception to the Law's open meeting requirements, and court accordingly finds that in doing so the Board violated the Right to Know Law.

The Ettingers request their attorney's fees and costs. RSA 91-A:8, I, provides that fees shall not be awarded unless the court finds that "the body . . . knew or should have known that the conduct engaged in was a violation of this chapter." There is nothing in the record to indicate that the Board or its members knew they were violating the Right to Know Law. The court also finds that the Board and its members should not have known that its conduct was in violation of the Right to Know Law. As the record of this case shows, practical concerns of time and cost have made it not unusual for such bodies to receive legal advice under the "consultation with legal counsel" clause of RSA 91-A:2, I(c), without counsel actually being present in any form. Again, this order does not reach or decide, because it need not, whether the practice of holding a non-meeting to read counsel's legal advice or to receive that advice through an assistant or a board member is within the meaning of RSA 91-A:2, I(c). The court does reach and decide that conducting a discussion of that legal advice between and among board members without the attorney present2 is not within the plain meaning of RSA 91-A:2, I(c), but given the developed practice the court cannot say that this Board should have known that it was violating the Right to Know Law. Accordingly, no attorney's fees will be awarded. The Ettingers are, however, the prevailing party in this action within the meaning of Superior Court Rule 87, and the Clerk will tax costs accordingly.

The Ettingers also request that the court overturn the Board's decision to grant final approval to the Pomeroy Application. The Right to Know Law provides that, in event of a violation, the court may, among other things, "invalidate an action of a public body or agency [6] taken at a meeting held in violation of this provision of this chapter, if the circumstances justify such invalidation." RSA 91-A:8, II. Invalidation is not warranted here. The Board did not take any action at the meeting held in violation of the Right to Know Law to invalidate. The Board did not make any decisions at its session with Ms. Huff, either concerning whether to hold a public hearing on whether the approval conditions had been met or on whether the conditions had been met. The action the Ettingers would like the court to invalidate actually took place at the public meeting later that evening, when final approval was granted. RSA 91-A:8, II, authorizes the invalidation of an action of a public body "taken at a meeting held in violation of this provision of this chapter." None such occurred here, and the Ettingers' request that the court invalidate the approval granted to Pomeroy is accordingly denied.

So ordered.

September 15, 2010    /s/   

Steven M. Houran

Presiding Justice

1 Because the Board's attorney was not present in any form, the court does not reach or decide whether the "consultation with legal counsel" clause permits a public body to consult with legal counsel not only in person but also by telephone, video conference, email, text messaging or other form of electronic communication.

2 See footnote 1.