Rockingham County Newspapers v. Town of Hampton, Doc. No. 218-1996-E-216 (Rockingham Super. Ct., August 14, 1996) (Coffey, J.)

Pages: 1 2 3 4 5 6

[1]

THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

ROCKINGHAM COUNTY NEWSPAPERS

v.

TOWN OF HAMPTON

96-E-216

ORDER

In this action, the plaintiff has filed a petition for disclosure of information pursuant to RSA 91-A. Specifically, the petitioner seeks to have this Court find the nondisclosure provisions of the December 1, 1995 Agreement ("the Agreement") between the Town of Hampton ("the Town") and Hunter F. Rieseberg unenforceable and to have this Court require the Selectmen to produce information surrounding Hunter Rieseberg's termination. The Town joins with the petitioner to the extent that it requests that the nondisclosure provisions be found unenforceable. Intervenor Hunter Rieseberg objects and has filed a motion to dismiss the petition. A hearing was held on August 12, 1996.

By Order dated January 22, 1996, Judge Gray ordered the disclosure of records detailing: (1) any payment of salary or extension of fringe benefits from the Town to Mr. Rieseberg beyond compensation for time actually worked; (2) the terms of any confidentiality agreement pertaining to Mr. Rieseberg's departure; and (3) the value of any "exit package" that he received. In that Order, Judge Gray found that, ". . . the citizens of the Town of Hampton have a right to know the information surrounding Mr. Rieseberg's resignation."

[2] As required by Judge Gray's Order, the Town produced a number of documents, including the "Minutes Re: Board of Selectmen/Emergency Meeting December 1, 1995." The petitioner acknowledges the receipt of these materials but claims that the disclosure is inadequate because the minutes of the nearly twelve hour meeting only contain the final vote and do not contain any of the discussion pertaining to the reasons the parties entered the Agreement. Thus, the petitioner claims that the only manner in which there can be the public disclosure as required by RSA 91-A is through the knowledge of Selectmen who attended the meeting of December 1, 1995.

However, paragraph 1 of the Agreement provides:

The TOWN and its representatives shall not disclose in any manner to any person or entity the terms and conditions of this agreement, the substance of the settlement discussions, matters discussed or votes taken in any executive and/or non-public sessions relating in any manner to this agreement, the employment of Hunter Rieseberg, their personal opinions about him, or his resignation. This is a material term of this agreement and constitutes valuable consideration for it. Breach of this provision shall subject the individual(s) involved to the immediate payment of liquidated damages as set forth in paragraph 12.

Paragraph 6 of the Agreement provides:

The TOWN, the Board of Selectmen collectively and its five (5) individual members shall not hereafter make any statements or engage in any conduct which shall in any manner detract from the professional or personal reputation of HFR. Likewise, HFR shall not make any statements or engage in any conduct that in any matter detract from the reputation of the Board of Selectmen for the Town of Hampton. And it's five (5) Individual members. Violation of this term subjects the individual(s) to payment of liquidated damages as set forth in paragraph 12.

[3] Paragraph 12 of the Agreement provides:

Violation of any confidentiality provision set forth in Paragraphs 1, 2, 5, 6, 7, 10 by the TOWN shall subject the violating individual(s) to immediate payment of $100,000 to HFR, who is entitled to payment of additional reasonable attorney's fees and costs associated with enforcing this term if it is necessary to proceed in Court to do so.

Paragraph 13 of the Agreement provides:

Violation of any of the terms and conditions of this agreement by the TOWN shall subject the TOWN to payment of all consequential damages reasonably flowing from such violation. This is in addition to any penalty payment referenced in paragraph 12, above. HFR is also entitled to payment of reasonable attorneys fees, expert fees and costs associated with enforcing any term of this agreement if it is necessary to proceed in Court to do so.

The Court finds that the Town has not violated RSA 91-A. At the hearing, Mr. Rieseberg's attorney represented that the minutes of the December 1, 1995 meeting were very short due to the fact that the nearly twelve hours of the meeting were spent formulating the Agreement. Both the minutes and the Agreement have been disclosed pursuant to RSA 91-A and Judge Gray's Order. However, the Court is cognizant of the fact that the public has not, in fact, received real knowledge of the circumstances surrounding Mr. Rieseberg's resignation, as provided for in Judge Gray's Order. Thus, although RSA 91-A only applies to public records and meetings, and not to the opinions that the petitioner seeks, the Court must determine whether the nondisclosure provisions of the Agreement violate the public policy of the citizens of Hampton's "right to know" about the circumstances surrounding Mr. Rieseberg's termination, as provided for in Judge Gray's Order.

[4] A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms. Restatement of Contracts 2d, §178. In weighing the interest in the enforcement of a term, account is taken of:

(a) the parties' justified expectations,
(b) any forfeiture that would result if enforcement were denied, and
(c) any special public interest in the enforcement of the particular term.

Id. In weighing a public policy against enforcement of a term, account is taken of:

(a) the strength of that policy as manifested by legislation or judicial decisions,
(b) the likelihood that a refusal to enforce the term will further that policy,
(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) the directness of the connection between that misconduct and the term.

Id.

In this case, the Court finds that the interest in the enforcement is clearly outweighed by the public policy against enforcement. First, because the minutes and the Agreement have been made public, the Court finds that the parties now have no justified expectation of confidentiality. Second, if enforcement of the Agreement were denied, no forfeiture would occur because Mr. Rieseberg's "exit package" has already been paid and Mr. Rieseberg has secured a new position in Vermont. In fact, it is the Town that would forfeit $100,000.00 of tax dollars if the Agreement were [5] enforced. In addition, if the Selectmen make any defamatory statements, Mr. Rieseberg would not be foreclosed from bringing a defamation action. See, 41 ALR4th 1116, (Many Courts have held that statements made by members of state or local legislature or council relating to legislative business were not absolutely privileged where they were made outside of the legislative forum, although the courts stated or recognized that a conditional privilege was applicable). Third, there is no special public interest in the enforcement of the nondisclosure provisions; the public interest is in gaining knowledge of how and why tax dollars were spent in connection with Mr. Rieseberg's termination. Fourth, Judge Gray's Order sets forth a strong public policy in favor of disclosing this information. Further, it is well settled that all agreements which tend to injure the public confidence in the purity of the administration of the law are against public policy. 17A Am.Jur. 2d Contracts §263 (additional citations omitted). Clearly, the public's confidence in the administration of the law through the Town Selectmen would be injured if this information is not disclosed. Finally, it is likely that a refusal to enforce the Agreement provisions will further that policy in that the Selectmen are likely to disclose information to the public about the meeting and the discussions leading to the Agreement. The Court notes that considerations involving misconduct do not apply in this case. Thus, the Court finds that the nondisclosure provisions should not be enforced.

Accordingly, although the Court finds that the Town has [6] complied with Judge Gray's Order with respect to RSA 91-A, the petition is GRANTED to the extent that the Court finds that paragraphs 1, 6, 12, and 13 of the Agreement are unenforceable because they are against public policy. The Court notes that it has not required the Selectmen to produce information surrounding Mr. Rieseberg's termination but has merely found that the provisions of the Agreement which prevent such disclosure are unenforceable.

So ORDERED.

Date:    8-14-96       /s/   

Patricia C. Coffey

PRESIDING JUSTICE