THE STATE OF NEW HAMPSHIRE
CARROLL, SS. SUPERIOR COURT
Kenneth McKenzie
v.
Town of Eaton Planning Board and
Paul Savchick, Chairman
Docket No. 212-2016-CV-0067
ORDER
The plaintiff, Kenneth McKenzie, filed a complaint on May 16, 2016 against defendants Town of Eaton Planning Board ("Board") and its Chairman Paul Savchick ("Savchick"), alleging violation of RSA 91-A in connection with a Board meeting held on May 11, 2016. He seeks 1) injunction against any policy or rule that would make any portion of the Board meeting inaudible; 2) injunction against any discussion by the Board or its members regarding matters outside a public meeting; 3) a finding the complaint was necessary to enforce compliance with RSA 91-A; 4) recovery of the plaintiff's costs and fees in bringing this action; 5) damages against Savchick for a "false, slanderous and inflammatory" statement to the State Trooper; and 6) a requirement that Savchick undertake remedial training in RSA 91-A requirements. The defendants object.
The court conducted a two day trial on September 12, 2016, and November 14, 2016, at which the plaintiff represented himself and the defendant was represented by counsel. Upon consideration of the evidence, the court finds and rules as follows.
[2] BACKGROUND AND FACTS
For months, if not years, the Board conducted its meetings by sitting at a large table with Board members on three sides and interested public members on the fourth. The plaintiff was often the only public member in attendance. After its April 2016 meeting, the Board voted to change its policy to no longer have public members sit at the table but instead to have the Board and the public members separated. The Board would now sit at a table in the center of the room, facing a row of chairs for the public, estimated to be approximately six feet from the center table.1 The meeting at issue in this case was the first time the new seating policy was in effect.
The May 11, 2016, Board meeting agenda was noticed for 7:00 PM. Prior to the start of the meeting, Board members and people having business before the Board began to arrive. The plaintiff arrived at approximately 6:50 PM.2 Members picked up meeting packets, including draft minutes. Savchick testified he told them to look through the minutes to be ready and the meeting transcript, prepared by Brown and Meyers Reporting, appears to support this statement. The plaintiff argues the minutes were reviewed and adopted during this period, but the transcript notes a vote taken on the minutes at the end of the meeting.
Board members gathered at the table at the back of the room, as they had done in the past. The plaintiff, unaware of a change in seating protocol, took up a seat at the back table as he customarily did. At about this point he heard Savchick speaking with [3] two board members about a notation on a site plan that was on the meeting's agenda. He believed Board members had started to discuss the business of the meeting before the public meeting had been called to order.
The plaintiff was told the meeting arrangements had been changed and he needed to move to the row of chairs. He objected, saying he couldn't hear from that distance, assuming the meeting would take place at the back table, approximately 10 feet from the row of chairs, and that members might have their backs to him.3 He was again told he could no longer sit at the table and needed to move. Believing the meeting had been called to order, he started a cell phone recording which he routinely did. Because he did not begin to record until the meeting was officially started, he testified, there is no audio record of the meeting being called to order.
The plaintiff became agitated over the seating protocol and, at 6:55 PM, after considerable shouting between the plaintiff and Savchick, the police were called. The plaintiff sat in one of the designated chairs, still shouting, awaiting the police.
At 7:01 PM, State Trooper Seth Turner arrived. He testified he heard agitated conversation when he arrived and saw people sitting at the back table, with their backs to the audience. He assumed it was a public meeting. He spoke to Savchick and then the plaintiff, who explained he was unable to hear the discussion. Trooper Turner asked the plaintiff to step outside to tell him more about the disagreement. They did so and spoke for approximately four minutes. While they were outside, members chatted about a tick that needed to be taken care of, someone needing calamine lotion for itching, guinea hens versus chickens, and a woman who had been bitten by a raccoon. [4] Savichick and/or other male speakers noted a few times that they should wait until the plaintiff returned.
Trooper Turner and the plaintiff returned, and the Trooper explained the plaintiff's concern he would not be able to hear. The Trooper and the plaintiff left the building again for a moment; the plaintiff reentered the building at 7:11 PM and sat in a designated chair.
At about 7:12 PM the Board members then moved to the center table facing the row of chairs. Trooper Turner reentered at 7:15 PM and spoke briefly, making certain the situation was under control. Seeing that it was, he left and there were no further outbursts.
When the plaintiff arrived at 7:12 PM, Savchick stated the "public hearing" would begin and the members moved to the center table facing the audience. They voted to accept for consideration the site plan and took comment on the plan. At the close of the meeting, they voted to adopt the minutes as amended. The plaintiff was asked if he had any business before the Board; he replied he had none. The meeting adjourned without incident.
The plaintiff argues the Board violated the Right to Know law by discussing a pending matter (the site plan) before the meeting was formally called to order. He also argues he was denied the opportunity to hear the discussion, as is his right under RSA 91-A.
At trial, the defendant did not disagree with most of the plaintiff's timeline but differed on a few key moments. Savchick testified the site plan discussion at the back table was limited to answering questions from Board member Thaire Bryant ("Bryant") [5] about an abbreviation on the plan. Bryant had not been present at the previous meeting when the plan was first presented and did not know what "HISS" meant. Savchick explained it stood for High Intensity Soil Sample. Bryant testified to the same information, that is, Savchick explained what HISS stood for but they did not otherwise discuss the contents of the plan or the merits of the application. He also testified the plaintiff became very upset during his "tirade" and he felt calling the police was appropriate.
Savchick testified he did not open the meeting until after the incident with the plaintiff and Trooper Turner was complete. The transcript supports Savchick's statement that he held off on any action or discussion until the plaintiff returned, at Trooper Turner's urging. He stated the meeting was formally opened at about 7:12 PM when the members moved to the front table, accepted the plan for consideration and began the public hearing. The transcript records him saying the "public hearing" is about to start; Savchick testified he meant to say the "public comment period" was about to start. Either way, at this point the members had moved to the center table and were facing the audience chairs. Savchick testified that discrepancies in the minutes were the result of a small town's operations, with limited staff time. The minutes are compiled using a template from meeting to meeting and thus the meetings do not always record the actual time events occur.
Because, according to the defendant, there was not a quorum4 during the discussions at the back of the room while waiting for the police to arrive and no business was transacted, the conversation did not constitute a public meeting and did [6] not violate RS 91-A. The meeting did not begin until about 7:12 PM, at which time the board members moved to the center table facing the audience. Finally, the defendant argues there has been no attempt to violate the spirit or the purposes of RSA 91-A.
ANALYSIS
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).
In order to provide open access to the meetings of public bodies, RSA 91-A:3 (Supp. 2012) provides in particular that, "[p]ublic 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." RSA 91-A:3, I(a) (Supp. 2012).
The petitioner seeks the following remedies for the alleged violation of RSA 91-A: 1) injunctions to prevent similar action in the future; 2) recovery of costs and fees; 3) [7] damages for Savchick's statements, and 4) training for Savichick in RSA 91-A's requirements.
After review of the evidence, the court finds there was poor communication and laxity in recordkeeping, but no violation of RSA 91-A. The plaintiff was caught by surprise by the change in seating plans, and assumed he was being marginalized by the change, sending him 10 feet away to a row of chairs while Board members continued to meet around a table, possibly with their backs to him. The court's impression is the plaintiff was personally offended by the change in seating and suspicious that the intent was to demean him and remove him from participation. He reacted emotionally, as did Savchick. Trooper Turner handled the situation well, calming down the participants and fostering a more civil mood. It is unfortunate the defendant did not explain the change in seating in advance, before the discussions became emotionally charged.
The court finds the discussion at the back table regarding the abbreviation HISS not to violate RSA 91-A. With only three members, there was no quorum present. The discussion was limited to an explanation of the abbreviation, and the merits of the site plan were not addressed.
It is unclear if Savchick called the meeting to order just before the State Trooper was called or after the discussions with the Trooper were complete. Even if it were considered a public meeting before the Trooper arrived, there was no business transacted. During this period, the transcript shows nothing but small talk taking place, and a stated intention to wait until the plaintiff returned before taking up business.
[8] At no point was the plaintiff or the public denied access to the workings of its government. There was never an attempt to circumvent the Right to Know law by meeting outside public session or by excluding the public from its meeting. At worst, this was a poorly handled change in seating protocol that escalated. Although unpleasant for all present, there was no prejudice to the plaintiff or the public.
There being no violation of RSA 91-A, the court denies the request for injunctive relief or remedial training in RSA 91-A requirements. The defendant should take greater care, however, in drafting and review of minutes so that the record of public meetings is accurate.
The court does not find the statements made by Savchick to be slanderous or defamatory. It should be noted there was not a full record developed on this issue because, at the plaintiff's request, references to prior meetings or the plaintiff's conduct were not considered. The court has not considered in its determination the statements made at trial or in the defendant's post trial brief regarding conduct beyond the events of May 11, 2016.
Finally, the plaintiff requests recovery of his costs and fees.5 RSA 91-A:8, I, provides for an award of costa and fees in the following circumstances:
If any public body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a governmental record or refuses access to a governmental proceeding to a person who reasonably requests the same, such public body, public agency, or person shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available or the proceeding open to the public. Fees shall not be awarded unless the court finds that the public body, public [9] agency, or person knew or should have known that the conduct engaged in was a violation of this chapter or where the parties, by agreement, provide that no such fees shall be paid.
Thus, an award of the plaintiff's costs and/or fees requires: "(1) that the [petitioner's] lawsuit was necessary to make the information available; and (2) that the [respondent] knew or should have known that its conduct violated the statute." ATV Watch v. N.H. Dep't of Transp., 161 N.H. 746, 764 (2011) (quotation omitted). The petitioner is not able to meet either prong in this case. As discussed above, there was no business conducted out of public session. The plaintiff and general public were not prejudiced. Other than changing the table and seating configuration, the meeting format did nothing to change the plaintiff's and the public's access to the workings of their government.
There being no violation of RA91-A, the court finds no basis to award recovery of the plaintiff's fees and costs.
For the foregoing reasons, the plaintiff's requested prayers for relief are DENIED.
So Ordered.
1 There was some discussion at trial regarding the reasons for the new seating configuration, which included some Board member's view that the plaintiff could be disruptive. The plaintiff objected to this characterization and the relevance of the information. The court sustained the plaintiff's objection and did not consider the reasons for the Board's decision to change seating plans.
2 The plaintiff presented a timeline, based on his recollection and the times contained in police logs, that sets forth his sequence of events. (Plaintiff's Exhibit 10.) He asserts the meeting room clock is 3 minutes 45 seconds slow, as compared to the time in his cell phone record.
3 The plaintiff testified he has a hearing loss and has difficulty hearing discussions in some public meetings.
4 The Board has seven members; four members constitute a quorum. (Defendant's Exhibit A, Bylaws Article III and X, B.)
5 The plaintiff filed this complaint on a pro se basis. The defendant opposed costs and fees but not on the basis that the plaintiff was self-represented. For purposes of this order, the court will assume without deciding that a self-represented party may be entitled to costs and fees if the statutory circumstances have been met.