Mertz v. Town of Piermont, Doc. No. 215-2016-CV-168 (Grafton Super. Ct., July 21, 2017) (MacLeod, J.)

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GRAFTON, SS Docket No. 16-CV-168

Teran Mertz


Town of Piermont,
Colin Stubbings, and Randy Subjeck


Teran Mertz, (hereinafter "Mertz" or "plaintiff") seeks injunctive and other statutory relief for various alleged violations of the New Hampshire Right-to-Know Law perpetrated by the Town of Piermont (hereinafter the "Town") and by as Colin Stubbings (hereinafter "Stubbings") and Randy Subjeck (hereinafter "Subjeck"), in their capacities as selectmen for the Town. (Index #1.) (Stubbings, Subject, and the Town are hereinafter sometimes referred to collectively as "defendants.") Mertz also seeks reimbursement of her reasonable attorney fees and costs associated with this lawsuit. (Id.) The defendants object and request reimbursement of their costs and attorney fees associated with defending the case. (Index #6.) The court held a bench trial, which spanned four non-consecutive days starting on November 4, 2016 and concluding March 22, 2017, during which it received numerous exhibits and heard testimony from twelve witnesses. Based on the record, the parties' arguments, and the applicable law, the court finds and rules as follows.1

[2] Findings of Fact

In her complaint, Mertz alleges that numerous Town actions, which occurred between March 2016, and June 2016, violated the New Hampshire Right-to-Know Law, RSA §§ 91-A:2, 91-A:2-a, 91-A:3, and 91-A:4. The court will address these alleged violations and their factual underpinnings in chronological order.

At all times relevant to these proceedings, Mertz, Stubbings, and Subjeck were members of the Piermont Board of Selectmen (hereinafter the "Board"). Subjeck was elected to the Board in March 2014, and served as its chairman. Stubbings was elected to the Board in March, 2015 and Mertz was elected in March 2016.

In March 2016, the Board was approached and asked to consider a possible contract. The Board held two nonpublic sessions to review the matter, consistent with RSA 91-A:3, II (c). The first session occurred on March 19, 2016, and the second on March 21, 2016. The credible evidence is that the Board determined that it would be to the Town's benefit to enter into the contract under certain conditions, and each Board member agreed that the Town should proceed with the contract, which included certain essential terms.

Thereafter, on or about March 28, 2016, the Board members participated in a meeting with the Town's lawyers at the law firm's offices in Laconia to discuss the contract. After the meeting, Stubbings approached Mertz in the firm's parking lot as she was entering her automobile and advised her that the Board needed to have the contract signed as soon as possible. Subjeck stood nearby. Mertz refused to discuss the matter further at that time believing that that to do so would constitute an illegal Board meeting. Thereafter, Stubbings drafted the proposed contract that same day. Once finished, he emailed the draft to his fellow Board members requesting their input or approval. Both Subjeck and Mertz approved [3] Stubbing's draft of the contract via email.2 Sometime thereafter, Subjeck signed the contract on behalf of the Town.

On May 5, 2016, the Board held a properly-noticed "work session." The Board conducted the majority of the work session as a public meeting, discussing and reviewing a variety of issues. At the end of the work session, Subjeck made a motion, which was approved by unanimous vote of the Board, to enter a nonpublic session, pursuant to RSA 91-A:3, II(c). (See Def. Ex. L.) Unbeknownst to Stubbings and Subjeck, Mertz made an audio recording of the nonpublic meeting. (See Pl. Ex. 6.)

At the beginning of the non-public session, Subjeck announced that his reason for meeting privately pertained in large part to Mertz. He then proceeded to discuss an email Mertz had transmitted earlier that day. Subjeck believed that Mertz should not have sent the email, but instead should have raised her concerns first with the Board during their work session. Stubbings expressed similar concerns as well.

At trial, Stubbings testified that this discussion was held in a nonpublic session in order to protect the reputation of a person who was not a Board member. See RSA 91-A:3, II ("Only the following matters shall be considered or acted upon in nonpublic session . . . Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting . . . .").

Following the Board's May 5, 2016 work session, Mertz emailed several requests to Jennifer Collins (hereinafter "Collins"), the Town's executive assistant, requesting a copy of the minutes from the May 5th session. Mertz emailed additional requests on May 21, 2016, May 27, 2016, and June 5, 2016. She eventually received a draft of the May 5th minutes on June 7, 2016. [4] However, the draft Mertz received included the word "agenda" in the title instead of "minutes." Thereafter, Mertz sent several emails to Collins and Subjeck, each time requesting that she be sent the official May 5th minutes. Subjeck did not receive Mertz's requests because they were diverted to the "junk" folder in his computer. However, Mertz received at least one updated draft of the minutes, which contained a list of the topics discussed during the May 5th meeting, and the individuals who discussed those topics. This version of the minutes did not include a list of the select board members who were present at the meeting.

The Board only finalized its May 5, 2016, minutes during a work session held on June 16, 2016. Mertz did not attend the June 16th meeting. The final draft of the May 5th minutes, which Subjeck compiled, identified the selectmen present on May 5, 2016, and included a list of the topics covered and the people who discussed those topics. The minutes were not in narrative form, but instead were compiled in a form similar in appearance to an agenda.

Also in early May 2016, Mertz requested that Collins provide her with a copy of the Town's cemetery maintenance contract. However, Collins was unable to comply with this request because the Town did not have a written cemetery contract. The only contract or agreement that the Town had for cemetery maintenance was verbal, if indeed a formal contract or agreement existed at all.

On June 1, 2016, the Piermont Town Clerk's Office held a department head meeting to discuss the Town's website, which town officials and employees were dissatisfied with. By all accounts, the atmosphere during the meeting was contentious. All three Board members initially attended the meeting. However, Mertz quickly suggested to Subjeck and Stubbings that their collective presence probably constituted an illegal meeting of the Board because the gathering had not been properly noticed twenty-four hours in advance. Mertz then departed, but Stubbings and Subjeck elected to remain because they believed that their presence did not [5] constitute an official Board meeting.

Following the department head meeting, Subjeck contacted the New Hampshire Municipal Association in an effort to determine if the concerns raised by Mertz were meritorious. Similarly, Stubbings inquired of the Town's legal counsel if the selectmen's presence at the department head meeting had been illegal. Both were advised that their presence at the meeting without prior appropriate public notice was in fact unlawful, and that the appropriate corrective action would be to hold a properly-noticed meeting and publicly acknowledge their mistake. They were told that once they had publicly acknowledged their mistake, they could make decisions at a properly-noticed Board meeting based on the information they gained at the unnoticed department head meeting.

Accordingly, during a properly-noticed meeting the following day, Stubbings and Subjeck publicly acknowledged that their June 1, 2016, meeting had not been legal. The Board then acted on the information that it gained at the June 1st meeting. Stubbings testified that due to the highly contentious nature of that meeting, he believed the Town would not benefit from holding another meeting on the same topic.

On or about June 8, 2016, Mertz visited the Town offices and discovered that the business cards she previously placed there had been removed. When Mertz was first elected to the Board, the Town supplied her with business cards identifying her as a selectman, which cards were similar in nature to cards which had been issued to Subjeck and Stubbing. Dissatisfied with these cards, Mertz purchased her own business cards, which she placed in the Town offices. Mertz's new business cards differed from the Town-issued cards in three respects in that they included her photograph, as well as a so-called QR code and referred to her as "selectwoman" rather than "selectman."

Mertz's new business cards were soon removed from public display in the Town offices [6] by Collins on Subjeck's instruction without notice to Mertz or the Board. Subjeck informed Collins in an email that he had received complaints from several taxpayers regarding Mertz's new, "unofficial" business cards. (Pl. Ex. 21.) Subjeck elaborated thereafter that several elderly residents of Piermont were bemused by the "splotch" that appeared on the back of Mertz's new cards. Subjeck also requested that Collins include Mertz's new business cards on the agenda for the June 14, 2016 Board meeting.

When the Board discussed Mertz's business cards at the June 14th meeting, Stubbings and Subjeck expressed concern that the cards evinced public discord between the Board members. Subjeck was also unsure whether the term "selectwoman" was an official title. Stubbings stated that he was unaware that Mertz preferred to be addressed as "selectwoman," but expressed approval regarding the inclusion of her photograph on the cards. The Board agreed to discuss the matter further at a later meeting.

On June 27, 2016, Collins submitted a letter of resignation to the Board, informing the Board that her final day of employment would be July 8, 2017. Subjeck received the resignation letter that same day and quickly realized that the period between June 27th and July 8th included two weekends and a holiday. Subjeck determined that Collins' imminent departure created an administrative emergency. As such, he began the process of soliciting her replacement immediately without consulting either Mertz or Stubbings. Instead, Subjeck spoke directly with Collins to ascertain the exact nature of her official duties and then took it upon himself to write an advertisement for her position for publication. He then instructed Collins to place the advertisement in a local newspaper, which she did. The advertisement appeared in the newspaper the next day.


The plaintiff now sues, claiming that most, if not all of the Town's actions herein [7] described violated RSA §§ 91-A:2, 91-A:2-a, 91-A:3, and/or 91-A:4. Resolution of this case requires the court to interpret New Hampshire's Right-to-Know law. When interpreting the Right-to-Know law, normal rules of statutory construction apply. N.H. Right to Life v. Director, N.H. Charitable Trusts Unit, 169 N.H. 95, 102 (2016). When examining the language of a statute, the court applies the plain and ordinary meanings to the words used. Id. at 103. "[The court] interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. (quoting CaremarkPCS Health v. N.H. Dep't of Admin. Servs., 167 N.H. 583, 587 (2015)).

The Contract

First, Mertz alleges that Stubbings and Subjeck caused the Town to enter into an illegal contract in violation of RSA 91-A:2. In her Trial Memorandum, Mertz argues that a majority of the Board did not vote to pursue the contract. (Pl. Trial Memo, Index # 21. at 6.) She further claims that Stubbings and Subjeck alone decided to enter into the contract and did so during an illegal, unnoticed meeting, without her approval. Mertz concludes that because the meeting at which Stubbings and Subject agreed to proceed with the contract was illegal, the resulting contract was void and unenforceable.

Mertz's argument fails because it is unsupported by the facts adduced at trial. The credible evidence is that Stubbings and Subjeck discussed the contract during two nonpublic Board sessions in March 2016, both of which Mertz attended. Stubbings testified persuasively that all three of the Board members agreed that the Town should participate in the contract, and that all three members agreed on the essential terms of the contract. Furthermore, Mertz, in response to Stubbings' proposed contract draft, sent an email to him stating, "This draft looks fine. Let's go ahead with it." (Def. Ex. J.) The court holds that all three Board members [8] agreed to the contract despite Mertz's claim to the contrary. The contract was therefore valid because "[a] majority of the selectmen shall be competent in all cases." RSA 41:8 (2017). "Selectmen have the power to manage the prudential affairs of the town as prescribed by law, RSA 41:8, and to enter into contracts consistent with these purposes." Marrone v. Town of Hampton, 123 N.H. 729, 735 (1983) (citations and quotations omitted).

The Alleged March 28, 2016 Meeting

Mertz also claims that Stubbings and Subjeck held an illegal meeting in Laconia on March 28, 2016 in violation of RSA 91-A:2. As Mertz points out, RSA 91-A:2, I defines "meeting," in part, as "the convening of a quorum of the membership of a public body . . . ." Relying on this limited portion of the statutory definition, Mertz concludes that Stubbings and Subjeck held a meeting in Laconia in the office parking lot of the Town's lawyers because they were in the same place at the same time and Town business was considered. Furthermore, because the Selectmen did not provide the public with prior notice of this gathering at least twenty-four hours in advance, Mertz asserts that the meeting was illegal pursuant to RSA 91-A:2, II.

Mertz incorrectly bases her legal conclusions on an incomplete definition of "meeting." The full statutory definition is fairly expansive and includes several exceptions. In relevant part, it states:

[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 or matters over which the public body has supervision, control, jurisdiction, or advisory power. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters . . . .

RSA 91-A:2, I (2017) (emphasis added). Based on the facts adduced at trial, as well as the complete statutory definition of "meeting," the court concludes that Stubbings and Subjeck did not hold a Board meeting on March 28, 2016.

[9] Stubbings' very brief conversation with Mertz was exactly the type of chance encounter exempted from the definition of "meeting." Although Stubbings spoke to Mertz regarding the contract, he did not convene the Board "for the purpose of discussing or acting upon" any matters of substance. Additionally, the Board did not make any decisions at that time regarding the contract, or anything else for that matter. Although Mertz alleges that Stubbings and Subjeck made a decision outside of her presence, there is no credible evidence before the court to support her allegation. As Stubbings testified, the Board made the decision to pursue the contract during its March 19 and 21, 2016 nonpublic meetings.

The May 5, 2016 Nonpublic Meeting

Mertz claims that the Board's May 5, 2016, nonpublic meeting violated RSA 91-A:3 because the purpose of the meeting was to reprimand her, and the subject matter of the meeting would not have adversely affected the reputation of anyone other than herself. RSA 91-A:3, I states, "Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II." Paragraph II states in pertinent part:

Only the following matters shall be considered or acted upon in nonpublic session:

(c) Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting.

RSA 91-A:3, II (2017). Mertz asserts that she was the only person whose reputation could have been harmed by the Board's discussion. As such, she argues that the nonpublic meeting did not meet the exemption found in RSA 91-A:3, II, (c), and therefore violated the general prohibition of nonpublic meetings in RSA 91-A:3, I.

In point of fact, Mertz's recording (Pl. Ex. 6) clearly belies her assertion that the subject matter of the meeting would not have harmed anyone's reputation but her own. Although the [10] Board briefly discussed Mertz's email, the bulk of the conversation concerned a member of the public. The court finds that the decision by the Board to close the meeting to the public was taken in good faith and appropriate given the subject matter at issue and the concerns raised regarding an individual who was not a Board member. As such, the court holds that the Board's nonpublic meeting met the reputation exception of RSA 91-A:3, II, (c).

The Untimely Minutes

Next, Mertz alleges that the defendants violated RSA §§ 91-A:2 and 91-A:4 when the Town failed to provide her with minutes of the May 5, 2016 meeting within five days of the meeting. Mertz also alleges that the Board frequently missed this five-day requirement. The defendants acknowledged that the Board had experienced difficulty producing minutes in a timely manner for several years. However, Stubbings and Subjeck both testified persuasively that the Board identified and remedied the problem before the initiation of this lawsuit. Mertz has not offered any evidence to suggest that there have been ongoing violations since that time. Accordingly, the only question before the court is what relief Mertz is entitled to, if any.

RSA 91-A:7 (2017) states that "[a]ny person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." However, injunctive relief is not appropriate in this case. The Board has already remedied its past violations of RSA §§ 91-A:2 and 91-A:4, and there is no persuasive evidence to suggest that the Board will resume violating the five-day time requirement for producing its minutes. RSA 91-A:8 states, in part:

IV. If the court finds that an officer, employee, or other official of a public body or public agency has violated any provision of this chapter in bad faith, the court shall impose against such person a civil penalty of not less than $250 and not more than $2,000 . . .
V. The court may also enjoin future violations of this chapter, and may require any officer, employee, or other official of a public body or public agency found to have violated the provisions of this chapter to undergo appropriate remedial training, at such person or person's expense.

[11] There is no credible evidence that Stubbings and Subjeck violated the Right-to-Know law in bad faith. In fact, the record makes clear that they recognized and remedied the problem of untimely minutes before the initiation of this lawsuit, demonstrating that they did not act in bad faith. As such, the court finds that it would be inappropriate to require either of them to pay fines or attend remedial training. Finally, it would be futile for the court to enjoin further violations because the Town has already remedied the problem, and there is no indication that similar violations will occur in the future. Therefore, the court declines to grant any relief pertaining to the Town's violations of RSA §§ 91-A:2 and 91-A:4.

Allegedly Inaccurate or Incomplete Minutes

In addition, Mertz alleges that the majority of the Board's minutes were either inaccurate or incomplete. The only evidence she offers in support of this allegation are the draft minutes that she received of the May 5, 2016, Board meeting. (See Pl. Ex. 3; Pl. Ex. 13.) Mertz contends that neither draft contained any of the statutorily-required information. Specifically, RSA 91-A:2, II states that minutes of all meetings "shall include the names of members, persons appearing before the public bodies, and a brief description of the subject matter discussed and final decisions."

While the draft minutes of the May 5th meeting clearly lacked some of the information required by RSA 91-A:2, II, it is important to note that they were drafts, not final minutes. Because drafts are incomplete or inaccurate by nature, the court declines to evaluate the adequacy of the Board's draft minutes. Instead, the court considers the final version of the May 5, 2016 minutes to determine their adequacy, and holds that said final version (Def. Ex. D) meets all of the statutory requirements. Said minutes list the selectmen present at the meeting and identifies the persons appearing before the Board. The final minutes also set forth a brief description of the subject matters discussed and final decisions taken. While the final minutes [12] are not in narrative form and not elaborate in nature, RSA 91-A:2, II only requires a "brief description" of what was discussed. Finally, there is no evidence to suggest that any of the Board's minutes are inaccurate.

The Cemetery Contract

In her complaint, Mertz alleges, "Selectmen Stubbings and Mr. Subjeck routinely signed payment vouchers for a non-existent contract that benefits one family in Town for Town services that are approved by the recipients themselves in their dual role as Trustees of the Trust Funds and Cemetery Trustees." (Compl., Index#1, at ¶ 13(A.)(vii.).) The complaint further alleges that this was in violation of either RSA 91-A:2, or RSA 91-A:4, or both. (Id. ¶ 13, A.) In her Trial Memorandum, the plaintiff argues that the cemetery contract was not discussed in a public meeting, thus it must have been discussed and approved outside of a public meeting in violation of RSA 91-A:2, I. (Pl. Trial Memo, Index #21, at 12.)

RSA 91-A:4, I grants every citizen "the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies." RSA 91-A:4, I (2017). However, in this case the Town could not have violated Mertz's right to inspect the contract because, as the she admits, the contract was verbal, and therefore the Town did not possess or control a written copy of it. Furthermore, the Town was not obligated, generally speaking, to produce a new document reflecting the terms of the verbal contract. See Brent v. Paquette, 132 N.H. 415 (1989).

Additionally, Mertz's allegation that the cemetery contract violated RSA 91-A:2, I is wholly unsupported by the evidence and amounts to no more than conjecture. None of the evidence adduced at trial suggests that the cemetery contract was made in a public meeting or outside of a public meeting. There is no evidence to suggest who specifically made the contract or when.

[13] The June 1, 2016 Department Head Meeting

Next, Mertz alleges that the selectmen's presence at the June 1, 2016 department head meeting violated RSA 91-A:2, II because the Board failed to post notice of the meeting at least twenty-four hours in advance. The defendants concede that this meeting violated the notice requirement. However, as Stubbings and Subjeck testified, the Board publicly acknowledged its violation at a properly-noticed meeting the following day. Therefore, the only issue before the court is what relief Mertz is entitled to, if any.

The court deems that injunctive relief is not appropriate in this instance because the Board's violation of RSA 91-A:2, II on June 1, 2016, was a single, isolated event. There is no credible evidence to suggest that the Board itself scheduled the department head meeting or that it failed, intentionally or otherwise, to provide notice before the meeting, nor is there evidence to suggest that it will fail to provide required notice for future Board meetings. Therefore, the court holds that it would be unjust to require Stubbings and Subjeck to pay fines or attend remedial training because they worked diligently to discover and remedy their inadvertent violation of the statute.

The court also declines to invalidate any action taken by the Board based on information it ascertained during the department head meeting. The Right-to-Know law does not require the court to invalidate actions of a public body that are made during an improperly-noticed meeting, particularly when those actions are affirmed during a later, properly-noticed meeting. See RSA 91-A:8, III (2017) ("The court may invalidate an action of a public body or public agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." (emphasis added)); cf. Hull v. Grafton County, 160 N.H. 818 (2010) (holding that a County Convention could ratify a vote made during an improperly noticed meeting during a subsequent, properly noticed meeting). Although the [14] Board did not take any decisions during the department head meeting, it subsequently made a decision based on that meeting. The fact that the Stubbings and Subjeck waited to act until they could publicly acknowledge their mistake during a properly-noticed meeting demonstrates their desire to comply with both the letter and the spirit of the law.

The Plaintiff's Business Cards

In her complaint, Mertz alleges that the removal of her business cards from the Town offices and the Board's June 14, 2016 discussion of her business cards violated RSA §§ 91-A:2-a and 91-A:3. However, the court holds that neither of these statutes, which relate to communications outside of meetings and to nonpublic meetings respectively, is applicable to this issue. As Mertz admitted at trial, there is no evidence that Stubbings and Subjeck discussed her business cards outside of a public meeting. Additionally, Subjeck testified that he acted alone regarding the removal of Mertz's business cards.

In her Trial Memorandum, Mertz claims that the removal of her business cards and the Board's discussion of the cards are evidence that Stubbings and Subjeck generally acted in bad faith. In essence, Mertz argues that her two colleagues took umbrage with her decision to refer to herself as a selectwoman on her business cards, and therefore decided to publicly ridicule her.3 While Subjeck's unilateral act of having Mertz's business cards removed from the Town offices was perhaps precipitous and insensitive, the evidence does not support a finding that either Subjeck or Stubbings intended to ridicule or insult Mertz. Indeed, the issue was broached by Subjeck during a non-public session of the Board, and as Stubbings and Subjeck both testified, they were concerned primarily by what they perceived as Mertz's failure to communicate with them, particularly because it evinced discord among the Board members.

[15] The Newspaper Advertisement

Finally, Mertz alleges that an illegal meeting was held to discuss and publish a newspaper advertisement in violation of RSA §§ 91-A:2-a and 91-A:3. However, Mertz admitted at trial that she did not have any evidence to support this allegation. Subjeck and Collins both testified that Subjeck alone made the decision to produce and publish the advertisement and did not discuss his decision with either Mertz or Stubbings before doing so. Because there was no communications between any of the Board members, Subjeck's decision to create and publish the advertisement did not violate the Right-to-Know law.

In her Trial memorandum, Mertz argues that Subjeck's unilateral decision to place the advertisement in the newspaper violated the Right-to-Know law because he acted without the Board's approval. (Pl. Trial Memo, Index #21, p. 16.) However, the Right-to-Know law does not prohibit unilateral action by a single member of a public body. See RSA 91-A (2017). And while RSA 41:8 does states that "[a] majority of the selectmen shall be competent in all case," implying that Subjeck's unilateral action was not competent per se, the court is not persuaded that Subjeck's action should be invalidated under the circumstances presented.

Cross Requests for Attorney Fees and Costs

Both Mertz and the defendants have requested an award of their reasonable costs and attorney fees associated with this case. The court first addresses Mertz's request for costs and fees. To prevail on her claim Mertz must prove: (1) the defendants violated the Right-to-Know law; (2) the instant lawsuit was necessary to enforce the defendants' compliance with the law, or was necessary to address a purposeful violation of the law; and (3) the defendants knew that their conduct violated the law. RSA 91-A:8, I (2017). Although Subjeck and Stubbings violated the law on two occasions (failing to produce minutes within five days of meetings and conducting an unnoticed meeting on June 1, 2016), they took prompt corrective action to [16] address these violations after they became aware of the same. Mertz does not allege and did show any continuing violations of the law. As such, the court holds that this lawsuit was not necessary to enforce the defendants' compliance with the law. Additionally, the evidence does not support a finding that the aforementioned violations of the Right-to-Know law were purposeful. Therefore, the court declines to hold the defendants liable for Mertz's costs and attorney fees.

Conversely, an award of attorney's fees and cost to the defendants must be grounded upon a finding by the court that Mertz's action in initiating and/or prosecuting this lawsuit was taken in bad faith or was otherwise "frivolous, unjust, vexatious, wanton, or oppressive." RSA 91-A:8, II. This is a somewhat closer call, but upon consideration of the totality of the circumstances presented, the court cannot hold that this case was frivolous, unjust or otherwise undertaken in bad faith or that it was litigated in a manner which could be deemed vexatious or otherwise inappropriate. As the defendants have acknowledged, Subjeck and Stubbing violated the Right-to-Know law on two separate occasions. This lawsuit was brought, at least partially, in response to these violations. As such, the court does not deem the lawsuit to be frivolous, unjust, vexatious, wanton, or oppressive.


For the foregoing reasons, the court DENIES the plaintiff's requests for injunctive relief, statutory relief, and reasonable costs and attorney fees. Similarly, the court DENIES the defendants' request for reasonable costs and attorney fees. The plaintiff has submitted requests for findings of fact and rulings of law. The court's findings and rulings are set 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 plaintiff's requests for findings and rulings are consistent with this order, they are granted; otherwise, they are denied or [17] determined to be unnecessary.

SO ORDERED, this 21st day of Ju1y 2017.


Lawrence A. MacLeod, Jr.

Presiding Justice

1 The nonpublic meetings described in this Public Order were sealed by a majority vote of the Piermont Board of Selectmen, pursuant to RSA 91-A:3. Acting on a Motion made by the defendants, and consistent with New Hampshire Court Records Public Access Guideline 2, this court sealed those portions of the record that relate to the Board's nonpublic meetings. Accordingly, this Public Order details the court's findings and rulings without direct reference to the sealed portions of the record. A Sealed Order accompanied this Public Order for the benefit of the parties in this case.

2 Mertz contends that she never agreed to the contract draft that Stubbings sent her. Nevertheless, on March 29, 2016, Mertz sent an email to Stubbings that stated, "This draft looks fine. Let's go ahead with it." (Def. Ex. J.) Mertz contends that she never sent this email and that somebody else must have used her email account to send it. Mertz was, however, unable to produce any credible evidence at trial to suggest that the email was sent by somebody other than herself.

3 The plaintiff requests that the court take judicial notice of RSA 21:28, which states that "[t]he words 'selectwoman,' 'selectperson,' and 'select board' may be used interchangeably with 'selectman' in all instances, where appropriate." RSA 21:28 (2017). However, RSA 21:28 is irrelevant to these proceedings because it is a rule of statutory construction, see RSA 21:1, which bears no relationship to the alleged Right-to-Know violations in this case.