Gannon v. Town of Hooksett, Doc. No. 217-2007-E-409 (Merrimack Super. Ct., March 7, 2008) (Conboy, J.)


The State of New Hampshire

Superior Court

Merrimack County Courthouse
163 North Main Street, P.0. Box 2880
Concord, NH 03302-2880
(603) 225-5501

Docket No. 07-E-409

Michelle Gannon


Town of Hooksett, NH


The petitioner, Michelle Gannon ("Gannon"), seeks a declaratory ruling that the Hooksett Town Council violated RSA 91-A, New Hampshire's Right to Know Law. The respondent, the Town of Hooksett, objects. Before the Court are the parties' cross motions for summary judgment. Upon consideration of the parties' arguments, their submissions, and the applicable law, the Court finds and rules as follows.

I. Factual Background

For the purposes of this motion, the Court finds the following facts relevant. On March 28, 2007, the Hooksett Town Administrator, David Jodoin filed a complaint with the Town Council asserting that four Town employees, Joanne Drewniak, Jessica Skorupski, Sandra Piper, and Michelle Bonsteel, had knowingly spread false rumors that he was romantically involved with a Town employee. The Town Council retained an attorney, Lauren Irwin, to conduct an investigation into Jodoin's complaint. Irwin concluded that the Town employees had fabricated the rumors about Jodoin.

[2] On April 11, 2007, the Town Council met in a nonpublic session to discuss Irwin's conclusions. The Town Council subsequently voted to terminate the four employees for their conduct. Shortly after the meeting, the four employees were notified of the Town Council's decision.

On April 20, 2007, an attorney for the four employees requested a post-termination hearing. On May 15, 2007, the Town Council held hearings for two of the employees, Drewniak and Skorupski. On May 24, 2007, the Town Council issued decisions rejecting the two employees' appeals and affirming its decision to terminate their employment.

The following day, Gannon filed an initiative petition requesting that the Town Council reinstate all of the employees. More than 400 registered voters signed Gannon's petition. On May 25, 2007, the petition was hand delivered to respondent.

On June 13, 2007, the Town Council met to consider the Gannon's initiative petition. According to the meeting minutes, the Town Council met in nonpublic session pursuant to RSA 91-A:3, II(c), which states that nonpublic sessions are appropriate for "[m]atters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself, unless such person requests an open meeting." Neither Jodoin not any of the four employees requested an open meeting. The meeting minutes also reflect that the Town Council voted to return the petition.

On June 14, 2007, the Town Council notified Gannon of its decision. The Town Council stated that it could not act on the initiative petition because it "involves a measure that may not be lawfully passed by the Town Council." The Town Council further stated that "the only permissible subject of an initiative petition is the enactment [3] of an ordinance that pertains to legislative matter." "The reinstatement of four employees, it noted, was an "administrative matter." On June 27, 2007, an article appeared in the Hooksett Banner regarding the initiative petition. The article quoted Town Council president, George Longfellow ("Longfellow"), as stating that between June 18 and 21, 2007, "he conducted a phone poll to find out what fellow town councilors wanted to do about the initiative petition."

On September 20, 2007, Gannon filed the instant petition pursuant to New Hampshire's Right to Know Law, RSA 91-A, asserting that the Town Council violated the statute when it met in nonpublic session regarding its action on the initiative petition.

II. Analysis

Summary judgment ". . .shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." RSA 491:8-a, III (1997). The Court "is required to construe the pleadings, discovery and affidavits in [a] light most favorable to the non-moving party to determine whether the proponent has established the absence of a dispute over any material fact and the right to judgment as a matter of law." Porter v. City of Manchester, 155 N.H. 149, 153 (2007). An issue of fact is material if it affects the outcome of the litigation. Id.

Gannon claims that Longfellow's conduct, as described in the Hooksett Banner article, violated RSA 91-A, and that any discussion and vote by the Town Council on the initiative petition should have taken place at a public meeting or in a properly convened public session, not through private telephone discussion. Thus, Gannon requests that the [4] Court invalidate the Town Council's actions and enjoin the Town Council from conducting discussions via telephone on substantive issues of policy.

In support of its summary judgment motion, the respondent argues that the Town Council did not violate RSA 91-A because it voted to return the petition in a lawfully convened nonpublic session that took place on June 13, 2007. Gannon objects and moves for summary judgment, arguing that the Town Council's basis for entering into a nonpublic session was invalid.

The Court begins its analysis by examining the language of RSA 91-A. "When construing the meaning of a statute, [a court] first examine[s] the language found in the statute, and where possible, [] ascribe[s] the plain and ordinary meanings to words used." Appeal of Baldoumas Enterprises, Inc., 149 N.H. 736 (2003) (citing Bohan v. Ritzo, 141 N.H. 210, 213 (1996)). It is not the function of the courts to add language to a statute. Id. at 213.

RSA 91-A:2, II (2001) provides that "All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies." "The statute, however, does not afford the public an absolute right of access to the workings of governmental bodies; it does recognize certain exceptions and exemptions." Orford Teachers Association v. Watson, 121 N.H. 118 (1981). The statute provides that certain matters may be considered or acted upon in nonpublic session. For example, "[t]he hiring of any person as a public employee" or "[m]atters which, if discussed in public, would likely affect adversely the reputation of any person . . . unless such person requests an open meeting." See RSA 91-A:3, II (2001). [5] Here, the respondent asserts that discussion of Gannon's petition would likely affect adversely the reputation of the four employees. In his affidavit, Town Council President Longfellow states that the initiative petition would have required the Town Council to "discuss, at least to some degree, the inappropriate conduct of the employees, including the false rumors the employees had spread about Mr. Jodoin and the other Town employee." See Respondent's Mot. for Summ. J., Ex. 1, Affidavit of George Longfellow. Gannon disagrees and asserts that a public session regarding her petition would not require discussion of the conduct of the four employees. Notwithstanding Gannon's assertion, however, the Court finds that the nature of the petition would reasonably support a conclusion that matters adversely affecting the employees' reputations would be discussed.

The respondent further points out that the Town Council was justified in entering nonpublic session in order to discuss the issue of rehiring the four former employees. The express language of RSA 91-A:3, II (b) empowers a body to enter into nonpublic session to consider the hiring of a public employee. Gannon counters by asserting that the subject matter of the Council's discussion should not have been whether the individuals would be rehired, but whether the Council is empowered to do so. The Council's ultimate conclusion (that the initiative petition was outside the Council's purview) is not, however, dispositive of the appropriateness of the nonpublic session. It is clear that the purpose of the petition was to seek the rehiring of the four former employees. Under these circumstances, it could reasonably be expected that the Council would discuss the rehiring issue. Thus, the Court concludes that there is no genuine issue of material fact regarding the legality of the nonpublic session.

[6] As to whether the telephone poll was a meeting on a matter of substantive policy that should have been conducted in public, the Court finds such issue to be immaterial to Gannon's claim herein. It is undisputed that the alleged telephone poll occurred between June 18, 2007, and June 21, 2007. It is also undisputed that the attorney for the Town Council returned the initiative petition no later than June 14, 2007 -- several days prior to the alleged telephone poll. Thus, the propriety of the alleged telephone poll is not material to the issue of whether the decision to return the initiative petition was properly addressed in a nonpublic session.

The court finds that there are no genuine issues of material fact bearing on the propriety of the challenged nonpublic session, and that such session was not contrary to the Right to Know Law. Accordingly, the respondent's motion is GRANTED, and Gannon's motion is DENIED.

So ordered.

   Mar. 7, 2008       /s/   

Date Carol Ann Conboy

Presiding Justice