THE STATE OF NEW HAMPSHIRE
COOS, SS. SUPERIOR COURT
No. 214-2015-CV-00126
Jules A. Kennett
v.
Town of Colebrook Board of Selectmen
ORDER
Proceeding pro se, the plaintiff, Jules A. Kennett, seeks an injunction against the defendants, the Town of Colebrook Board of Selectmen, enjoining the Town of Colebrook (the "Town") from participating in the Coos County Recycling Program (the "County Program") on the grounds that the defendants allegedly held an unnoticed meeting regarding participation in the County Program on December 11, 2015, in violation of RSA chapter 91-A, and that a Selectman who voted to join the County Program purportedly had a conflict of interest. The plaintiff also seeks reimbursement of his costs associated with this lawsuit. The Court held a bench trial on this matter on January 26, 2016, during which it received numerous exhibits and heard testimony from seven witnesses. Based on the record, the parties' arguments, and the applicable law, the Court finds and rules as follows.
I. Facts
The County Program involves the collection of recyclables - principally steel, aluminum, glass, cardboard, paper, and plastic - from participating towns and the transportation of those recyclables to a Stewartstown facility where inmates from the [2] Coos County House of Corrections prepare the recyclables for sale. Some years ago, the Town participated in the County Program for an unspecified period of time. Starting at least in 2014, however, the Town decided to leave the County Program and manage its own recyclables at the Town's Transfer Station, where Town employees would weigh and prepare the recyclables for sale by grinding glass products, and bailing paper, cardboard, and plastics products. Once prepared, the recyclables were then stored at either the Transfer Station or another Town facility until the Town stockpiled sufficient quantities to economically justify their transportation and eventual sale. For at least 2015, the Town hired a business managed by an individual named Mike Lynch to oversee the transportation and sale of its recyclables.
At some point in 2014, one of the Town's Selectmen, Raymond Gorman, met with officials of the County Program to explore the possibility of rejoining the program. In early October 2015, another of the Town's Selectmen, Suzanne Collins, met with a Coos County Administrator to again explore the possibility of rejoining the County Program. On November 23, 2015, at a regular and noticed meeting, the Town's three Selectmen, Mr. Gorman, Ms. Collins, and Greg Placy, discussed the pros and cons of rejoining the County Program versus the Town continuing to oversee its own recyclables. After their discussion, the Selectmen unanimously voted to rejoin the County Program. (See, e.g., Defs.' Ex. A at 2.)
Mr. Gorman, Ms. Collins, and Mr. Placy each testified that the decision to rejoin the County Program was motivated by the increasing costs of the Town's recycling program and the belief that the County Program would reduce uncertainty and spending. Both Mr. Gorman and Ms. Collins explained that the value of recyclables, [3] especially hard plastics, had drastically dropped during the years that the Town had managed its own recycling program. They attributed the change in the recyclables market to the relatively low price of oil over that period and a decreased demand for recyclables in China. Ms. Collins testified that the Town's recycling program, therefore, did not raise sufficient revenue to justify the high costs of labor required to prepare the recyclables for sale. Both Mr. Gorman and Ms. Collins also testified that the Town had found it difficult to store its recyclables, and if the Town's recycling program were to have continued, new storage facilities would have to be built. Conversely, the County Program offered lower costs, in large part because the County Program utilized low-cost inmate labor to prepare recyclables for sale. Finally, Mr. Lynch, the business owner who had previously overseen the transportation and sale of the Town's recyclables, had submitted a "vague" proposal for 2016 and, according to Mr. Gorman, Mr. Lynch indicated to the Selectmen that he needed "more" from the Town than he had in the past. Accordingly, the Selectmen believed that the County Program would be a better option. (See also Pl.'s Ex. 60 (detailing the Selectmen's decision to rejoin the County Program).
Following the November vote, on December 11, 2015, the Town's Selectmen, the Town's town manager Becky Merrow, the Town's road agent TJ Rossitto, and an employee of the Town's Transfer Station Wilfred Gaudette, met with representatives of the County Program Ben Champagne and Craig Hamelin at the Town's Transfer Station. This gathering lasted approximately an hour and, despite the presence of a quorum of the Selectmen, it is undisputed that the gathering was not posted as a "meeting" pursuant to RSA 91-A:2, II. The plaintiff alleges that the failure to properly [4] post the gathering constituted a violation of RSA chapter 91-A. The defendants, however, assert that the gathering did not qualify as a "meeting" as defined in RSA 91-A:2, I, and therefore, no violation of the statute occurred.
The Court heard testimony from five of the eight individuals present at the gathering: Ms. Merrow, Ms. Collins, Mr. Gorman, Mr. Placy, and Mr. Gaudette. Ms. Merrow testified that she learned from Ms. Collins on Wednesday December 9, 2015, that the Selectmen planned to meet with the County Program representatives at the Transfer Station, and that Ms. Collins asked her to coordinate the attendance of Mr. Rossitto and Mr. Gaudette. That same day, Ms. Merrow sent an email to Mr. Rossitto and Mr. Gaudette stating, in relevant part, "[t]he Selectmen are planning a meeting with Craig Hamlin at the Transfer Station at noon on Friday. Are you able to join us for the meeting? They would like both of your input." (Defs.' Ex. C.) Ms. Merrow included both the Town's assessing clerk and office manager on the email. Ms. Merrow testified that she intended to post the meeting and that she had assumed that by including these individuals on the email that they would post the meeting. Ms. Merrow further testified that, out of "an abundance of caution," it is normally her policy to post any gathering of the Selectmen, regardless of whether she anticipates that a gathering will constitute a "meeting" as defined in RSA 91-A:2, I. Ms. Merrow also acknowledged that her email had been "too casual" and took responsibility for failing to clarify her intention that either the assessing clerk or office manager post the meeting.
Ms. Merrow described the disputed meeting itself as a "view" that gave the County Program representatives an opportunity to examine the Transfer Station's equipment and facilities and gauge what changes, if any, to the Transfer Station's [5] operation might be required. Mr. Gorman, Mr. Placy, Ms. Collins, and Mr. Gaudette echoed these sentiments. Specifically, Mr. Gorman stated that the purpose of the meeting was to ensure a "smooth" transition for the Town's citizens, and that the meeting was designed to familiarize the County Program representatives with the Transfer Station operation, and for Mr. Gaudette, an employee of the Transfer Station, to have an opportunity to understand how his role would change under the new arrangement. Mr. Placy similarly testified that the intent of the gathering was to "facilitate a meeting" between the representatives of the County Program and the Town's employees, Mr. Gaudette and Mr. Rossitto. Ms. Collins testified that the role of the Selectmen at the gathering was to provide "support" to the Town's employees during the transition.
Each of the witnesses that were present also testified that an emphasis of the meeting was whether the Transfer Station could accommodate the recyclable containers utilized by the County Program. Although the Transfer Station already had several recyclable containers, these containers were apparently incompatible with the County Program's operation and, therefore, the meeting's participants sought to ensure that the County Program's containers would fit under the roof of the Transfer Station. Additionally, several witnesses testified that the Selectmen suggested to the County Program representatives that Transfer Station equipment, principally a large scale1 and a glass pulverizer, could be used by the County Program if necessary.
Along with alleging that the meeting at the Transfer Station was improperly [6] noticed, the plaintiff asserts that Ms. Collins possessed a conflict of interest sufficient to invalidate the Selectmen's vote to rejoin the County Program. Prior to becoming a Selectmen for the Town, Ms. Collins worked for Coos County for nearly thirty years in various positions, including County Administrator and Superintendent of Corrections. Since retiring from county government, Ms. Collins has performed freelance recording services for the Planning Board of Unincorporated Places where she holds the title of "Planning Board Secretary."
Finally, the plaintiff elicited testimony from Ms. Collins relating to his allegation that she "oversaw the movement of funds within the Town of Colebrook's 2015 budget for the purchase of equipment in the name of [the County Program]." (Compl. 7.) Based on the plaintiff's examination of Ms. Collins at the hearing, this allegation is predominately based on a purported transfer of funds between the Town's "Solid Waste" budget and its "Recycling" budget. (See Pl.'s Ex. 38.) Ms. Collins explained that no funds were actually transferred, yet she acknowledged that she oversaw a line item transfer between the two budgets. She explained that prior to deciding to rejoin the County Program, the Town had budgeted $14,000 for the construction of a new storage facility at the Transfer Station intended to store recyclables. According to Ms. Collins, however, the $14,000 had been incorrectly included in the Solid Waste budget and she merely corrected the mistake, attributing the funds to the Recycling budget as originally intended.
II. Discussion
Pursuant to RSA 91-A:2, I, a "'meeting' means the convening of a quorum of the membership of a public body . . . for the purpose of discussing or acting upon a matter [7] or matter over which the public body has supervision, control, jurisdiction, or advisory power." Furthermore, RSA 91-A:2, II mandates that public bodies comply with specific procedural requirements when scheduling a meeting, and dictates, inter alia, that notice of the time and place of a meeting be provided at least twenty-four hours in advance.
Remedies for violations of RSA chapter 91-A are specified in RSA 91-A:7 and RSA 91-A:8. RSA 91-A:7 provides that "[a]ny person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." If the Court finds that the suit was necessary to make information available to the plaintiff and that the Town and/or its employees knew or should have known that the conduct engaged in was a violation of the statute, the Court may award the plaintiff reasonable attorney's fees and costs. RSA 91-A:8, I. Additionally, "[t]he [C]ourt may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." RSA 91-A:8, III.
Despite the presence of the Selectmen at the gathering at the Transfer Station on December 11, 2015, the Court is far from convinced that the gathering qualified as a "meeting" as defined by RSA 91-A:2, I. Mr. Gorman, Mr. Placy, Ms. Collins, and Ms. Merrow have many decades of combined experience in municipal, state, and county government,2 and, correspondingly, they have a great deal of experience in complying with the requirements of RSA chapter 91-A. Accordingly, the Court is inclined to credit their testimonies that the gathering did not constitute a "meeting" because it was not [8] convened for the purpose of discussing or acting on any matter within the Selectmen's authorities, but was rather an opportunity merely to discuss the logistics of the Town's transition to the County Program.
Nevertheless, the Court need not reach a definitive conclusion on this issue, because even assuming, without deciding, that the gathering was a "meeting," the plaintiff is not entitled to the RSA chapter 91-A relief he seeks. The action that the plaintiff seeks to invalidate and enjoin was taken by the Selectmen at their November 23, 2015, meeting that complied with RSA chapter 91-A, and the Selectmen took no action at the December 11, 2015, gathering for the Court to invalidate or enjoin. Moreover, testimony at the hearing showed that the Town voted in 2016 to pass a budget that included expenditures associated with participating in the County Program. The Court finds that this vote implicitly endorsed the Selectmen's properly noticed November 23, 2015, decision to rejoin the County Program. Accordingly, granting the plaintiffs request for an injunction is unjustified.3 See Hull v. Grafton Cty., 160 N.H. 818, 823 (2010); RSA 91-A:8, II (providing that the Court "may" invalidate an action taken at a meeting held in violation of the statute "if the circumstances justify such invalidation"). The plaintiff is equally not entitled to an award reimbursing him for his costs associated with this lawsuit because the Court finds that the defendants reasonably believed that the gathering was not a meeting. Therefore, the plaintiff did not establish that the defendants knew or should have known that their failure to post the gathering was a violation of RSA 91-A:2, II. See RSA 91-A:8, I.
[9] The Court is even less convinced that Ms. Collins had a conflict of interest that influenced her vote to rejoin the County Program than it is that the gathering on December 11th constituted a "meeting." Similar to this latter dispute, however, the Court need not reach a definitive conclusion regarding whether Ms. Collins had a conflict of interest. "A judicial or quasi-judicial act may be voided because of a conflict of interest, but an administrative or legislative act need not be invalidated if the conflicting interest did not determine the outcome." Town of Merrimack v. McCray, 150 N.H. 811, 813 (2004) (quotation omitted). The Selectmen's November 23rd vote to rejoin the County Program was not a judicial or quasi-judicial act but an administrative act, and regardless of whether Ms. Collins had a conflict of interest, her participation did not determine the outcome of the Selectmen's vote. The Selectmen voted unanimously in favor of rejoining the County Program; therefore, even if Ms. Collins's vote was set aside the motion would still have passed. Furthermore, the plaintiff did not establish that Ms. Collins in any way improperly influenced her fellow Selectmen. To the contrary, Mr. Gorman's testified that he had been opposed to leaving the County Program when the decision to do so had been made originally, and had advocated for rejoining the County Program as early as 2014. Accordingly, even assuming, without deciding that Ms. Collins had a conflict of interest, the Court finds no reason to invalidate the Selectmen's decision to rejoin the County Program.
III. Conclusion
For the foregoing reasons, the Court DENIES the plaintiffs request for an injunction and for the reimbursement of his costs. The defendants have submitted requests for findings of fact and rulings of law. The Court's findings and rulings are set [10] forth in narrative form in this order. See Harrington v. Town of Warner, 152 N.H. 74, 86 (2005); Geiss v. Borassa, 140 N.H. 629, 632-33 (1996). Insofar as the defendants' requests for findings and rulings are consistent with this order, they are granted; otherwise, they are denied or determined to be unnecessary.
SO ORDERED.
1 Ms. Merrow testified that at the meeting there was a discussion of "rumors" that the scale did not function properly. She further testified that around October of 2016 the County Program removed the scale from the Transfer Station and performed tests that confirmed that the scale did not function properly. At the time of the hearing, the County Program was still in possession of the scale but Ms. Merrow stated that the County Program intended to return the scale.
2 Indeed, Mr. Gorman has fifteen years of experience as an elected official in the Town, both as a Selectmen and as a School Board Member. Similarly, Mr. Placy has over twenty years of experience as an elected official in the Town, again, both as a Selectmen and as a School Board Member. As discussed earlier, Ms. Collins has extensive experience in both county and city government in New Hampshire spanning roughly forty years. Finally, Ms. Merrow is a licensed attorney in Vermont and has roughly twenty years of experience as a town administrator in New Hampshire.
3 Additionally, testimony established that cost of participating in the County Program in 2017 are projected to be roughly $10,000, significantly less than the costs the Town expended on its own recycling program during at least 2015. Seemingly, therefore, the Selectmen made a sound financial decision to rejoin the County Program, which weighs against invalidating the Selectmen's actions.