Funicella v. Town of Jackson, Doc. No. 212-2013-CV-037 (Carroll Super. Ct., November 15, 2013) (Houran, J.)

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[1]

STATE OF NEW HAMPSHIRE

CARROLL COUNTY SUPERIOR COURT

Gino Funicella

v.

Town of Jackson, Board of Selectman

Docket No.: 212-2013-CV-00037

FINAL ORDER

The petitioner, Gino Funicella ("Funicella"), brought an action against the Town of Jackson Board of Selectmen ("the Board"), alleging several violations of the Right to Know Law. Specifically, Funicella alleges that the Board violated the Right to Know Law when the Board entered into non-public sessions on 16 different occasions. The Board argues that the non-public sessions in question were authorized by statute. After hearing, the court determines and orders as follows.

I. Background

The non-public sessions in question concerned two distinct issues, which the parties refer to as the Bartlett/Jackson Transfer Station issue and the Holly Lewis issue. The two issues are detailed below.

The minutes from these non-public sessions have, since those sessions, been unsealed and are available to the public. See Def.'s Mem. Law at 2.

A. The Holly Lewis Litigation

In 2008, the Board refused to renew a building permit originally obtained by Holly Lewis ("Lewis") because Lewis allegedly failed to comply with the inspection process. See Pl's Trial Mem. at 1. Lewis appealed the Board's decision to the Jackson Zoning Board of Adjustment ("ZBA") and the ZBA denied her request. Id. On May 4, 2010, the town brought an enforcement action against Lewis in this court to enjoin her from further constructing her home. See Def.'s Memo Law Ex. A. The court case remained open until January 27, 2012, when the case voluntary non-suit was entered. See id. There were, however, issues related to this controversy which [2] remained unresolved; Lewis and the Board did not resolve these issues until Lewis signed a settlement agreement at some time in October 2012. See id. Ex. G. Twelve of the sixteen non-public sessions at issue in this case were entered into to discuss the Holly Lewis litigation:

B. The Bartlett/Jackson Joint Transfer Station

In 1984, the towns of Bartlett and Jackson entered into a contract to create a single solid waste disposal facility for the two towns. See Pl.'s Compl. Ex. B. The contract detailed the governance and funding of the joint transfer facility. Id. The two towns disputed the terms of the contract on numerous occasions and the Board had tried to resolve those disputes for years. When the contracting parties were unable to resolve those disputes on their own, the Town of Jackson requested declaratory judgment from this court on May 4, 2010, petitioning the court to revisit the original contract and determine its meaning and its original intent. The court case remained open until January 27, 2012, when a voluntary non-suit was entered. On March 1, 2012 the Board voted to sign an updated contract detailing the operation of the Bartlett Jackson Transfer Station. See Def.'s Mem. Law Ex. C.

Five of the sixteen non-public sessions at issue in this case were entered into to discuss issues surrounding the joint transfer station:

[4] II. Analysis

Funicella argues that the non-public sessions detailed above were not authorized by statute and thus were illegal. Funicella asserts that there were no matters of litigation pending or threatened in writing against the town that would justify the non-public sessions. Thus, Funicella argues, the sessions never should have been closed to the public and any actions taken during those sessions should be invalidated. The Board argues that the non-public sessions were authorized by statute. In the alternative, the Board argues that even if they were not authorized, invalidation is not the proper remedy in this case.

With limited exceptions, the Right to Know Law provides 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." RSA 91-A:2, II (2010). The Right-to-Know Law, then, mandates "that all public bodies open their meetings to the public unless one of several specific, enumerated exceptions or exclusions applies." Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 790 (2011). In order for a non-public session to be authorized, a statutory exception must apply. See RSA 91-A:3, II (2010).

A. The Non-Public Sessions on the Holly Lewis Litigation

At issue is whether the twelve non-public sessions concerning the Holly Lewis controversy were authorized non-public sessions under the statute. The Right-to-Know Law authorizes public bodies to go into non-public session for the "consideration or negotiation of pending claims or litigation which ha[ve] been threatened in writing or filed against the public body . . . until the claim or litigation has been fully adjudicated or otherwise settled." RSA 91-A:3, II(e) (2010). Here, two of the twelve non-public sessions at issue took place after the enforcement action was brought against Lewis but before voluntary non-suit was entered. It is clear to the court that these two non- public sessions,1 occurring while the litigation was pending in this court, were authorized under RSA 91-A:3, II(e).

The remaining ten non-public sessions took place after voluntary non-suit was entered in the underlying case, but were nonetheless likewise authorized under RSA 91-A:3, II(e). A public body is authorized to enter into non-public session for the "consideration or negotiation of pending claims or litigation . . . until the claim or litigation has been fully adjudicated or otherwise settled." RSA [5] 91-A:3, II(e) (2010) (emphasis added). Here, voluntary non-suit was entered on January 27, 2012. However, a voluntary non-suit "has no conclusive effect on the merits of the underlying action." Town of Plaistow v. Riddle, 141 N.H. 307, 309 (1996). "Because a former judgment is not conclusive upon a matter in issue unless the judgment was on the merits, a voluntary nonsuit . . . is not a bar to a second action." Id. (quotations omitted) (citing Barton v. Barton, 125 N.H. 433, 434 (1984); Foster v. Bedell, 136 N.H. 728, 730 (1993)). Here, after the pending litigation was non- suited, the parties continued to negotiate a settlement agreement. Either party was free to re-open the lawsuit, and both parties were actively threatening to do so. The settlement agreement was not signed until sometime in the latter half of October 2012. That agreement is said to have included a mutual release of all claims. See Pl.'s Ex. 16. The claim, made and defended in writing in the parties' pleadings in the underlying case if not elsewhere, was not fully adjudicated or otherwise settled until the settlement agreement was signed in late October 2012. Thus, the ten remaining non-public sessions on this issue, which took place before the settlement agreement was signed, were authorized under RSA 91-A:3, II(e).

B. The Non-Public Sessions on the Bartlett/Jackson Transfer Station

Funicella argues that the Board was not authorized when it went into non-public session on the five occasions that the Board members discussed the Bartlett/Jackson transfer station. Three of those sessions occurred before the voluntary non-suit was entered. See Pl.'s Exs. 2, 3, 4; Def.'s Mem. Law Ex. B. The remaining two sessions occurred after the voluntary non-suit was entered. See Pl.'s Exs. 7, 14; Def.'s Mem. Law Ex. B.

As stated above, a public body is authorized to enter into non-public session for the "consideration or negotiation of pending claims or litigation which ha[ve] been threatened in writing or filed against the public body . . . until the claim or litigation has been fully adjudicated or otherwise settled." RSA 91-A:3, II(e) (2010). Here, the Town of Jackson filed a petition for declaratory judgment with this court to resolve the transfer station dispute on October 14, 2010. See Def.'s Mem. Law Ex. B. The Board subsequently entered into non-public session to discuss the pending litigation, as detailed in the pleadings of the parties in that underlying case, on October 6 and 20 and again on December 1, 2011. See Pl.'s Exs. 2, 3, 4. The action was not non-suited until December 6, 2011. See Def.'s Ex. B. These three non-public sessions took place after the original [6] petition was filed but before the claim was voluntarily non-suited and thus the Board properly entered into non-public session on October 6, 2011, October 20, 2011, and December 1, 2011.

The remaining two non-public sessions held on this issue were held after voluntary non-suit was entered. The Board contends that both of these sessions were authorized under RSA 91-A:3, II(a), and one of them by RSA 91-A:3, II(e) as well. According to RSA 91-A:3, II(a), a public body may enter non-public session to discuss "[t]he dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her . . . ." RSA 91-A:3, II(a) (2010). The minutes of the September 6, 2012 meeting show that the Board discussed only such personnel matters. See Pl.'s Ex. 14. Thus, the Board properly entered into non-public session on September 6, 2012.

The remaining non-public session took place on March 1, 2012. When the Board entered this non-public session, it cited both RSA 91-A:3, II(a) and (e) as justification. The minutes of this meeting show that the Board discussed both personnel matters within the meaning of RSA 91-A:3, II(a) and the controversy over the Bartlett/Jackson Transfer Station. Pl.'s Ex. 7. As discussed above, RSA 91-A:3, II(a) authorized the Board to discuss these personnel matters. The Board was also authorized to discuss the controversy over the Bartlett/Jackson Transfer Station in non-public session because, like the Lewis dispute discussed above, even though voluntary non-suit had been entered, the dispute was not resolved until the two towns signed a new agreement. The agreement had not yet been signed, and the litigation had not been "fully adjudicated or otherwise settled." RSA 91-A:3, II(e); see also supra discussion ยง II.A.

III. Conclusion

The court finds that all of the non-public sessions at issue were authorized under the statute. Funicella's request for relief is therefore denied.

So Ordered.

November 15, 2013    /s/   

Steven M. Houran

Presiding Justice


1 The June 23, 2011 and October 20, 2011 non-public sessions.