Gordon v. Winchester, Doc. No. 213-2011-CV-199 (Cheshire Super. Ct., August 9, 2011) (Arnold, J.)

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CHESHIRE, SS. No. 213-2011-CV-00199

No.: 2012-CV-89





The petitioner, Kim Gordon ("Petitioner" or "Gordon"), has filed a petition against the Town of Winchester ("Town") for violations of the Right-to-Know Law, RSA 91-A, and for attorney's fees under RSA 91-A:7 and Silva v. Botsch, 121 N.H. 1041 (1981). Gordon was an elected member of the Winchester Planning Board ("Board"). On May 2, 2011, for reasons unrelated and irrelevant to this matter, another member of the Board moved to declare a vote of no confidence in Gordon and to submit the matter to the Town's Board of Selectmen ("Selectmen") for the purpose of commencing removal proceedings under RSA 673:13. Pet. Request Findings of Fact ¶ 10. The motion passed and on the next day, the Board submitted to the Selectmen a request to remove Gordon under RSA 673:13. Id. ¶¶ 10-11.

On May 5, 2011, the Selectmen sent Gordon a letter acknowledging receipt of the Board's request and indicating that "[t]he Board [of Selectmen] will be considering this [2] information in non-public at their regular meeting on Wednesday, May 11, 2011, to determine whether the information is sufficient to move forward. . . . In the event that the Board of Selectmen finds grounds to move forward, it will proceed in accordance with RSA 673:13." Id. Exh. [Letter from Joan Morel to Kim Gordon (May 5, 2011)] (emphasis added).

On the same day as the scheduled meeting, Gordon's counsel responded to the Selectmen, demanding that they hold a public hearing or meeting, dismiss the matter or issue a bill of particulars, and pay Gordon's attorney's fees. Id. Exh. [Letter from Joseph S. Hoppock to Board of Selectmen, Town of Winchester (May 11, 2011)]. On May 16, 2011, Gordon's counsel sent individual letters to each of the Selectmen. At the next hearing, on June 1, 2011, the Selectmen passed a motion to enter a non-meeting under RSA 91-A:2, I (b), i.e. for the purposes of "[c]onsultation with legal counsel." Id. Exh. [Minutes of the Board of Selectmen Meeting, June 1, 2011, p. 2]. At the non-meeting, the Selectmen consulted a letter from Town Counsel. Upon re-convening, "[t]he Chairman announced that at their next meeting, the Board will discuss and then decide how they will proceed with the issue referred to them from the Planning Board." Id. (emphasis added).

At their next meeting, on June 8, 2011, the Selectmen considered a motion not to "proceed to public hearing as prescribed in RSA 673:13." Id. Exh. [Minutes of the Board of Selectmen Meeting, June 8, 2011, p. 1]. Neither Petitioner nor her counsel was [3] present. The member who made the motion recognized that removal required a public hearing and clarified his motion as follows: "My motion was not to proceed to a public hearing, which means we will not remove her from office." Id. at 2. After lengthy discussion, the Selectmen were in agreement that although Gordon's actions were "wrong", she was not inefficient and did not engage in malfeasance or neglect. Id. at 3. The motion not to proceed to a public hearing passed.

Gordon argues that when the Selectmen went into a non-meeting in order to review and discuss letters from Town Counsel on June 1, 2011, their conference did not amount to a consultation as required by RSA 91-A:2, I (b) and that they ought to have held their discussion in public under the Right-to-Know Law. "The plain and ordinary meaning of the word consultation requires counsel to be present either by phone or in person so that actual consultation and discussion can occur. Counsel was neither present in person nor by phone." Id. ¶ 23.

Gordon seeks attorney's fees on two grounds: under Silva, supra, as a party prevailing in removal proceedings, and under RSA 91-A:8 for violating the Right-to-Know Law. Petitioner argues that in Silva, "the Court recognized a remedy that allows an elected official to recover attorney's fees when he or she retains counsel in an effort to successfully maintain the elected official's official position."Id. ¶ 30. She asserts that she "expended her personal funds in an effort to protect her popularly elected position." Id. ¶ 32. Petitioner argues that she succeeded in her efforts because she was [4] not removed. Gordon also asserts that as an elected town official, she occupied the position as a public trustee, Silva, 121 N.H. at 1042, and that her "efforts, which she bore at her expense, were for the primary benefit of the trust (the people of the Town) as a whole." Id. ¶ 33.

The Town argues that removal proceedings had not been initiated, so Petitioner could not have prevailed, rendering Silva inapplicable. "The plaintiff is not entitled to an award where the Town did not do anything." Town's Memo Law p. 3. The Town is correct that Silva and its progeny, Foster v. Town of Hudson, 122 N.H. 150 (1982) and Town of Littleton v. Taylor, 138 N.H. 419 (1994) are distinguishable: in those cases, the individuals were "either removed form office or removal proceedings were initiated." Id. The Town also cautions against "extend[ing] the ruling in Silva to all cases where an official believes that the public will benefit from his or her consultation with his or her private attorney." Id. at 4.

Under RSA 673:13, three steps are required for a board of selectmen to remove an elected member of a land use board: 1) a public hearing, 2) written findings of inefficiency, neglect of duty, or malfeasance in office, and 3) public filing of a written statement of reasons for removal.

I. After public hearing, appointed members and alternate members of an appointed local land use board may be removed by the appointing authority upon written findings of inefficiency, neglect of duty, or malfeasance in office.
II. The board of selectmen may, for any cause enumerated in paragraph I, remove an elected member or alternate member after a public hearing.
[5] III. The appointing authority or the planning board shall file with the city or town clerk, the village district clerk, or the clerk for the county commissioners, whichever is appropriate, a written statement of reasons for removal under this section.

RSA 673:13. The Selectmen never proceeded to Step 1. They did not hold a public hearing. Defendant does not argue that the Selectmen acted unlawfully, procedurally or substantively, by discussing the grounds for removal raised by the Planning Board in the context of a motion not to proceed to a public hearing, so the Court need not pursue this line of inquiry. Moreover, insofar as the Selectmen considered the statutory grounds for removal, RSA 673:13 obligates a board of selectmen to hold a public hearing before removing a member of a land use board, not before declining to do so. Gordon does not assert that any violations of the Right-to-Know Law occurred during the June 8, 2011 meeting: such allegations are limited solely to the events of June 1, 2011. Pet. ¶¶ 10-16. Based on the language of RSA 673:13, the Selectmen never initiated proceedings to remove Gordon.

"Any local official 'in a position of special trust and responsibility,' whether elected or appointed, may recover attorneys fees in an action in which the official successfully fights dismissal from office without cause." 5 G. MacDonald, Wiebusch on New Hampshire Civil Practice and Procedure § 52.09 at 52-12 (2010) (citation omitted). "A party may be awarded attorneys fees when the party's action results not only in the establishment of the party's own rights but in conferring a 'substantial benefit' on others. The benefit must be more substantial than simply a general benefit accruing to [6] citizens when a town adheres strictly to the law." Id. § 52.11 at 52-13-52-14 (citations omitted). "A police chief or selectman and other officials holding a position of special trust and responsibility will be awarded attorney's fees if he successfully defends against an attempt to remove him from office. Attorney's fees will generally not be recoverable by most public employees even if they successfully defend against removal proceedings." Loughlin, 14 New Hampshire Practice, Local Government Law, § 564, at 443 (1995). See also Loughlin, 14 New Hampshire Practice, Local Government Law, § 982, at 233-234 (1995) ("Attorney's fees may be awarded to certain higher echelon municipal officials who successfully defend themselves in removal proceedings, but they will not be awarded to every official who successfully defends against removal.").

In Silva, the plaintiff, a selectman, had been "wrongfully removed from the position of ex-officio representative on the town planning board before the expiration of his term, in violation of RSA 36:5 II (Supp. 1979)." 121 N.H. at 1042. He sought attorney's fees for successfully fighting the wrongful removal proceedings. The Court first noted that there are some legislatively and judicially created exceptions to the general rule that each party bears its own costs. Id. at 1043. "These exceptions are flexible, not absolute, and have been extended on occasion." Id., quoting Harkeem v. Adams, 117 N.H. 687, 690 (1977). The Court awarded attorney's fees to the plaintiff because he "expended his own funds to retain his position on the planning board, to which he was statutorily entitled. . . . In so doing, the plaintiff vindicated the [7] legislature's express command." Id. Because the plaintiff vindicated the legislature's intent with respect to term duration and because "[a]s an elected town official, the plaintiff has assumed a special position as a public trustee[,]" the Court departed from the general rule and awarded him attorney's fees. Id. "This exception to the general rule precluding the award of attorney's fees may be expanded to include this case, since the plaintiff's action conferred a 'substantial benefit' on the town of Merrimack and the State of New Hampshire." Id. It is important to note that the plaintiff was entitled to recover attorney's fees and costs because "[h]e was a local official who was successful in litigation to retain his official position." Id. at 1045 (emphasis added).

In Foster, the plaintiff, a police chief, was wrongfully removed from public office: the Court ordered him reinstated. 122 N.H. at 151. He argued that under Silva, "certain elected public officials are entitled to reimbursement for attorney's fees under a 'public trust' theory." The Court found that the functions of a chief of police comport with the special position as a public trustee, but admonished that not all local officials hold such a position.

A chief of police has the responsibility to assure that his entire department enforces the laws firmly but fairly in the community so as to conserve the peace, yet ensure that the constitutional rights of the citizenry are protected. The multiplicity of officials at the local level prevents us from allowing every elected local official to recover costs and fees, but certainly an individual in a position of special trust and responsibility, such as a selectman or a police chief, comes within the ambit of Silva v. Botsch.

[8] Id. at 152 (citations omitted). The Court made another case-by-case determination in Taylor, where a selectman successfully fought removal.

She defended against the petition in order to retain her official, elected position as selectman. Therefore, we hold that the defendant is entitled to an award of attorney's fees. . . . We further find it appropriate under these circumstances to require the town to pay the defendant's attorney's fees. As a public trustee elected to administer municipal affairs, the defendant not only vindicated her own right to hold the office of selectman, but also conferred a substantial benefit on the town she serves.

138 N.H. at 424-425 (citations omitted).

It is clear from Silva, Foster, and Taylor that entitlement to attorney's fees requires a case-by-case determination that the plaintiff held a position of public trust such that his or her successful efforts against removal vindicate the legislature's intent and confer a special benefit on the town. Such a finding, however, would be both premature and absurd if no removal proceedings had been initiated. In all three cases, the plaintiffs successfully fought removal, not the possibility thereof. Because this possibility always exists, RSA 673:13 sets forth discrete steps which the Board of Selectmen must take in order to make that possibility a reality - or, as here, to quash it altogether. To the extent that Gordon believes that proceedings commenced when the Planning Board submitted a complaint to the Board of Selectmen, RSA 673:13 makes it clear that the entire decision-making authority, from start to finish, lies with the Selectmen. The Planning Board neither precipitates nor influences the ultimate decision to institute removal proceedings.

[9] Because it is clear that removal proceedings were not instituted against Gordon in the first place, it is unnecessary to inquire whether her efforts to resist such proceedings would have conferred any benefit on the Town, nor must the Court assess whether a Planning Board member is a public trustee or an ordinary local official. Until the Selectmen took the first step to remove Gordon, her efforts to resist such proceedings were premature and taken at her own risk. The legislature could not have intended to reward a public official for fighting the mere possibility of removal proceedings in order to prevent them from being instituted in the first place. Allowing a party to recover attorney's fees for resisting as-yet-uninstituted removal proceedings would encourage officials to fight windmills at the taxpayers' expense. It would also discourage municipalities from even contemplating removal, whether rightful or not, because the very act of preliminary discussion may make the municipality liable for attorney's fees and costs.

With respect to the alleged violation of the Right-to-Know Law, the Town argues that the attorney need not be physically present or available by telephone in order for a consultation to take place. "Neither decisions of the Supreme Court nor the provisions of Section 502 of the Rules of Evidence disclose any intention to limit the scope of the attorney-client privilege afforded to municipal boards. . . . Nothing in Rule 502 conditions the attorney-client privilege on the physical presence of the attorney." Id. at 7. Moreover, the word "communication" is not defined in N.H. Evid. R. 502, which [10] protects confidential communications between clients and attorneys: communication does not necessitate a verbal exchange, but rather hinges on the client's intent that the communication be confidential. See N.H. Evid. R. 502, Reporter's Notes.

Even taking as true Petitioner's argument that Town Counsel had to have been present for a consultation to occur under RSA 91-A:2, I (b), her argument makes little sense. The Town is correct that the entire Board of Selectmen is the client in receipt of counsel's advice. Town's Memo Law pp. 7-8. In order to discuss Town Counsel's advice, the Selectmen had to meet as a body. Gordon appears to argue that the Selectmen ought to have discussed its counsel's advice in public because she had requested a public hearing. If this were the case, an individual would be able to force the Board to waive its attorney-client privilege merely by requesting a public hearing.

There is no relevant case law on the issue of whether counsel has to be physically present in order for a client to consult with counsel. The Town is correct, however, that Gordon appears to conflate "consult" with "confer." Id. at 8. The latter, not the former, presumes a back-and-forth. For example, one commonly consults a dictionary or a printed source, presumably without expecting bilateral discourse. Although Black's Law Dictionary uses "consult" and "confer" interchangeably1 while defining neither, Webster's Third New International Dictionary defines "confer" as "3. to hold [11] conversation or conference now typically on important, difficult, or complex matters[.]" Webster's Third New International Dictionary 475 (unabridged ed. 2002). "Consult" is defined as follows: "1. . . . a. to deliberate on . . . b: to take counsel to bring about . . . 2 a: to ask advice of: seek the opinion of : apply to for information or instruction . . . b : to refer to esp. for information[.]" Id. at 490. While "confer" addresses the act of receiving information, "consult" is focused more on the act of seeking it. This is consistent with the definition provided by Black's Law Dictionary. To that extent, consulting counsel's letter falls well within the ambit of consultation with counsel.

Having found that the Selectmen did not violate the Right-to-Know Law by entering a non-meeting for the purposes of consulting with counsel, the Court finds that Gordon is not entitled to attorney's fees. "Fees shall not be awarded unless the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was a violation of this chapter[.]" RSA 91-A:8, I.

Lastly, the Town moves for attorney's fees under Keenan v. Fearon, 130 N.H. 494 (1988).

The modern law on the subject rests on [Harkeem, supra], which affirmed [Manchester v. Hodge, 75 N.H. 502, 77 A. 76 (1910)] and related cases by explaining that it was the "unnecessary" character of the judicial proceeding that justified the fee award, and by expanding Hodge's principle generally to cover cases "[w]here an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention. . . ." Id. The recognized scope of authority to award fees thus expanded from compensation for those who are forced to litigate in order to enjoy what a court has already decreed, to include compensation for those who are [12] forced to litigate against an opponent whose position is patently unreasonable. In such cases a litigants unjustifiable belligerence or obstinacy is treated on an objective basis as a variety of bad faith, and made just as amenable to redress through an award of counsel fees as would be the commencement of litigation for the sole and specific purpose of causing injury to an opponent. . . . Thus we have recognized a constitutionally created court's power to award counsel fees in any action commenced, prolonged, required or defended without any reasonable basis in the facts provable by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be.

130 N.H. at 502 (further citations omitted). While Gordon's actions may be considered premature and excessive given that the Selectmen never instituted removal proceedings against her, the decision to litigate the present issues in Court falls short of bad faith. It also cannot be said that her argument patently lacks "any reasonable claim in the law" because the questions of whether a planning board member is a public trustee and whether consultation with counsel's written advice constitutes consultation with counsel have not been previously addressed.

For the foregoing reasons, Gordon's petition is DISMISSED and the Town's motion for attorney's fees is DENIED.


   August 9, 2011       /s/   

DateJohn P. Arnold

Presiding Justice

1 Black's Law Dictionary defines "consultation" as "1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. . . . " BLACK'S LAW DICTIONARY 358 (9th ed. 2009).