Beckman v. Oyster River School Board, Doc. No. 219-1993-E-040 (Strafford Super. Ct., May 21, 1993) (Dickson, J.)




Jere Beckman, D.V.M., Robert Blaney,
Helen Wilcox, Jay Flanders, Suzanne Orr,
Nelson Bolstridge and Carl Lomison


Oyster River School Board,
Oyster River Cooperative School District,
School Administrative Unit 5 and John Powers



On May 10, 1993, the Court held a hearing on the above-captioned action.

The plaintiffs are citizens and taxpayers of New Hampshire who reside in Lee, Durham, or Madbury. These towns are in School Administrative Unit #5 (hereinafter "SAU 5"), which is made up of the Oyster River Cooperative School District (hereinafter "the District"). The defendant, John Powers, is the superintendent of SAU 5. The defendant Oyster River School Board (hereinafter "the Board") has the authority to negotiate collective bargaining agreements with the Oyster River Teachers' Guild of SAU 5. Based upon the evidence presented, the Court finds the following facts.

In October of 1992, the School Board and the Oyster River Teachers' Guild began collective bargaining negotiations for a three-year teacher agreement. On February 2, 1993, the teachers ratified the proposed agreement. On February 3, 1993, the School Board held its regular meeting during which the School Board went into executive session to discuss the proposed agreement in [2] accordance with RSA 91-A:3, I. See Plaintiffs' Exhibits 3, 4 and 5. During the executive session, the School Board voted to ratify the proposed agreement. See Plaintiffs' Exhibit 5.

The School Board then met in open session and announced its approval of the proposed agreement. See id. The School Board read a prepared news release which described the terms of the proposed agreement. See Plaintiffs' Exhibit 3. In response to questioning, the Board informed those present that the vote to ratify the proposed agreement was unanimous. See id. Subsequently, the press release was published in the local newspapers. See Plaintiffs' Exhibits 7 and 8.

On February 17, 1993, Ms. Wilcox requested a copy of the proposed agreement from the SAU 5 office. Colette Clickman, who is Mr. Powers' secretary, informed Ms. Wilcox that the proposed agreement had not been typed. Despite several attempts by various plaintiffs to obtain a typed copy of the agreement in final form, they were unable to obtain a final typed copy.

To date, a final copy of the agreement has not been typed. However, the plaintiffs were given a copy of the agreement between the Oyster River Teachers' Guild and the Oyster River Cooperative School Board for the 1991-1993 school years, and the agreed upon modifications to this agreement. See Plaintiffs' Exhibits 1 and 2. These two documents are the only public record of the proposed teachers' agreement to date.

The School Board provided the voters with information about the proposed agreement by various means. In addition to [3] the press release, SAU 5 mailed a six page newsletter, entitled SPAN, to every voter in the District. See Defendants' Exhibit F. This newsletter also described the change in health insurance plans and the percentage increases negotiated for teachers' salaries. See id.

The District prepared and posted the School Warrant for the 1993 annual school district meeting according to the statutory requirements. Article 11 of the School Warrant concerns the cost items in the proposed agreement and conforms with the New Hampshire Department of Revenue Administration's recommended language. See Plaintiffs' Exhibits 10 and 11, and Defendants' Exhibits A, B and H. Voters also received, by mail, the 39th Annual Report of the District, which contains a detailed explanation of the projected costs for each year of the proposed agreement, as well as the warrant articles. A public hearing was held prior to the annual meeting. Voters received a handout, entitled "Voter Information," at the annual School District Meeting.

On March 6, 1993, the voters approved the proposed agreement at the annual school district meeting. On April 1, 1993, the plaintiffs filed a Petition for Relief Under the Right to Know Law, N.H. RSA 91-A, in which they request that this Court: 1) invalidate the vote of the District on Warrant Article 11; 2) order immediate disclosure of the entire proposed agreement for teacher salaries and benefits to be voted on at a special meeting of the District by secret ballot; and 3) order [4] defendants to pay attorney fees for their violation of the Right to Know Law.

The plaintiffs assert that the defendants were required to produce a final typed copy of the proposed agreement within five days of the request. RSA 91-A:4 IV states:

IV. Each public body or agency shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release. If a public body or agency is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. If a photocopying machine or other device maintained for use by a body or agency is used by the body or agency to copy the public record or document requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the body or agency. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of public records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.

Id. (emphasis added). It is undisputed that no such document exists. The plaintiffs were given the public records in existence at the time. These records included the teachers agreement for school years 1991-1993 and the agreed upon modifications to that agreement.

The Court finds that the District had no affirmative duty to produce a public record that did not exist pursuant to RSA 91-A:4, IV. The Court also finds that it is irrelevant whether [5] the District had the time to create the requested document.

Although the Court finds that the District should have denied the plaintiffs' request for the document in writing pursuant to RSA 91-A:4, the Court finds that this noncompliance was de minimus since plaintiffs were informed that the document did not exist and were given the relevant documents in existence.

The Court notes that although the School Board should have voted to ratify the proposed agreement in open session on February 3, 1993, this technical violation of RSA 91-A:3 is also de minimus since the Board announced that its vote was unanimous in public session.

The Court finds the plaintiffs' petition is without merit. The School Board complied with the collective bargaining law which requires that all "cost items" be submitted to the voters for approval or rejection. See RSA 273-A:3, II(b); Appeal of Sanborn Regional School District, 133 N.H. 513 (1990).

The plaintiffs assert that they are entitled to the relief requested under RSA 91-A:8 which states:

91-A:8 Remedies.
I. If any body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public record or refuses access to a public proceeding to a person who reasonably requests the same, such body, agency, or person shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available or the proceeding open to the public. Fees shall not be awarded unless the court finds that the body, agency or person knew or should have known that the conduct engaged in was a violation of this chapter or where the parties, by agreement, [6] provide that no such fees shall be paid. In any case where fees are awarded under this chapter, upon a finding that an officer, employee, or other official of a public body or agency has acted in bad faith in refusing to allow access to a public proceeding or to provide a public record, the court may award such fees personally against such officer, employee, or other official.
II. The court 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.
III. In addition to any other relief awarded pursuant to this chapter, the court may issue an order to enjoin future violations of this chapter.

The Court finds the plaintiffs' requested relief (i.e. that this Court invalidate a vote on a warrant article, because plaintiffs did not receive information in the form that they requested) untenable.

The right to know law was not designed to provide a minority group of district taxpayers with the means to invalidate the decisions of a majority reached at a duly convened and conducted school district meeting and one should not be permitted to use the statute in that manner.

The plaintiffs argue that a purpose of the right to know law is to ensure that voters are informed prior to a vote on a particular issue and on this they are correct. However, in the instant case, the District used every reasonable means to insure that the voters were informed prior to the School District Meeting. The District not only provided the plaintiff with all of the information it had, but also provided the voters with more than was legally required.

There has been no violation of the right to know law in [7] this case warranting the relief sought in the plaintiffs' petition.

Accordingly, plaintiffs' petition is DISMISSED.

The Court rules on the plaintiffs Request for Findings of Fact and Rulings of Law as follows:

GRANTED: 1, 2 with insertion of the word "tentative" before "agreement," 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 17, 20, 21, 22, 23, 24, 26, 32, 33, 34, 35, 37, 41, 42, 43, 44 with insertion of "1, 1993" after "July," 45

DENIED: 25, 28, 29, 38, 39, 40, 46, 47, 48, 49, 50


DENIED AS STATED: 10, 14, 15, 18, 19, 30, 31, 36

The Court rules on defendants' Request for Findings of Fact and Rulings of Law as follows:

GRANTED: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 34, 35, 37, 38, 39, 40


So ordered.

May 21, 1993    /s/   

DateRobert B. Dickson, Presiding Justice