Berry v. March, Doc. No. 219-1996-E-113 (Strafford Super. Ct., November 4, 1996) (Mohl, J.)




David Berry, Elizabeth Varney, and Donna Swett


Frederic March, Selectman,
Joanne Heger, Selectwoman, and William Herman, Town Administrator



Before the court is a petition brought by three residents of the Town of New Durham wherein they allege violations of the "right-to-know" laws, RSA 91-A, et seq., by the respondents. Specifically, petitioners contend that the Board of Selectmen (Board), along with the Town Administrator, held various unlawful, non-public meetings. A hearing was held on October 3, 1996.

By way of brief factual background, the petitioners are all involved in some capacity with the New Durham Volunteer Fire Department. Many of the matters discussed during the meetings in question concerned the employment of the Fire Chief as well as the operation of an ambulance service run by the Fire Department.1

Upon review of the petition and the evidence submitted, the court restricts its focus to meetings held on April 23, 1996, May 4, 1996, June 22, 1996 and June 25, 1996. With regard to the petitioners' remaining allegations of unlawful meetings, there is [2] insufficient evidence to find that meetings were actually held on those dates.2

The right-to-know law requires that the Board's meetings be open to the public and minutes kept. RSA 91-A:1-a; RSA 91-A:2, II (Supp. 1995). However, non-public sessions may be held for limited purposes. RSA 91-A:3 (Supp. 1995). RSA 91-A:3 sets forth the specific requirements necessary to call a non-public session and provides:

I. (a) Bodies or agencies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No body or agency may enter nonpublic session, except pursuant to a motion properly made and seconded.
(b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present.
(c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.
II. Only the following matters shall be considered or acted upon in nonpublic session;
[3] (a) The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.
(b) The hiring of a person as a public employee.
(c) Matters 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.
(d) Consideration of the acquisition, sale or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community.

In addition, notices of all meetings, including nonpublic sessions must be posted in two "appropriate places or . . . be printed in a newspaper of general circulation in the . . . town at least 24 hours . . . prior to such meetings." RSA 91-A:2, II (Supp. 1995). The purpose of the right to know law is "to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." RSA 91-A:1.

Initially, the court addresses the respondents' contention that the Town Administrator, William G. Herman, is not a proper defendant in this action as he is not a member of a Board or Commission as covered by RSA 91-A:1-a.

RSA 91-A:1-a (Supp. 1995) specifies the organizations and bodies which are subject to the right-to-know law and provides in pertinent part:

The term "public proceedings" used in this chapter means the transaction of any functions affecting any or all citizens of the state by any of the following:
[4] . . .
IV. Any board, commission, agency or authority or any county, town, municipal corporation, school district, school administrative unit, charter school, or other political subdivision, or any committee, subcommittee or subordinate body thereof, or advisory committee thereto.

Respondents contend that William Herman, as the Town Administrator, is not a member of the Board of Selectmen, and cannot be subject to the right to know law. It is true that Mr. Herman did not have a vote in the meetings of the Board. However, it is apparent that he was an active participant in the Board's meetings, including the non-public sessions. He was clearly acting in an official capacity during those sessions. Further, acting in his official capacity, he made numerous recommendations to the Board concerning the New Durham Fire Department and ambulance service. In addition, he was responsible for posting public notices of the Board's meetings. Thus, Mr. Herman's extensive "involvement in governmental programs and decisions" brings him within the scope of the right-to-know law and does not provide him immunity from its mandates. See Bradbury v. Shaw, 116 N.H. 388, 390 (1976).

April 23, 1996

The agenda indicates that the April 23, 1996 meeting was a non-public session pursuant to RSA 91-A:3, II (c) to begin at 5:30 p.m. and include "any other business that may legally come before the Board." (Exhibit 3). The agenda made no references to what topics might be addressed in the non-public session. According to the minutes, the meeting was called to order at 5:30 p.m. and [5] entered into non-public session pursuant to 91-A:3, II (c) for the purpose of discussing personnel issues within the New Durham Fire Department. Fire Chief Brinley R. Nelson and Captain Thomas Swett were present at the meeting until 6:20 p.m.. The meeting adjourned at 7:00 pm.

The petitioners allege that the Board violated the right-to-know law in (1) failing to post a notice of the meeting; (2) holding an unlawful private meeting; and (3) failing to inform Chief Nelson that he had a right to request that the meeting be public.

In support of petitioners' contention that there was no notice of the meeting, Elizabeth Varney testified that it was her habit to check for posted notices during her daily trip to the post office and that on April 23, 1996, there was no notice posted for a meeting that night.

Chief Nelson and Captain Swett arrived at the Town Hall at about 5:30 p.m.. Selectmen Heger and March and Town Administrator Herman were already in Herman's office. Nelson and Swett waited for at least fifteen to twenty minutes and were then called into the meeting.

Herman testified that he usually posts notices of meetings himself and that he did post a notice for this particular meeting in both the planning board room and in the post office. Herman testified that prior to meeting with Nelson and Swett, he read through the contents of a letter but discussed no town business prior to 5:30.

[6] The court finds no violation of the right-to-know law in the conduct of the April 23, 1996 meeting. There is insufficient evidence to show that the notice the meeting was not posted as required. Further, as the Board apparently discussed matters which might affect Chief Nelson's reputation, as contemplated under RSA 91-A:3, II (c), the nonpublic session was not in contravention of the right-to-know law. As there is no indication from either party as to other matters discussed during that meeting, the court cannot determine whether violations occurred based on such matters. Finally, the right-to-know law does not require that the body conducting a non-public session inform the subject of the meeting of his or her right to request an open meeting.

May 4, 1996

The agenda indicates that a non-public meeting was scheduled to begin at 1:30 at the Town Hall pursuant to RSA 91-A:3, II (c). (Exhibit 4). According to the minutes, Mr. March moved to enter into non-public session pursuant to 91-A:3, II (c) to discuss personnel issues within the New Durham Fire Department. Chief Nelson was present at the meeting from 2:20 p.m. until 2:40 p.m. to discuss a Fire Department personnel issue. The Board voted to come out of non-public session at 3:35 p.m..

Petitioners assert that violations of the right-to-know law occurred based on (1) failure to post notice of the meeting; (2) an unlawfully held private meeting; and (3) failure to inform Chief Nelson of his right to a public meeting.

[7] Elizabeth Varney testified that she saw the vehicles of the Board members as well as Town Administrator Herman's car parked in front of the Town Hall at 1:00 p.m. although the meeting was not scheduled to begin until 1:30. Herman testified that the selectmen arrived early for the meeting that day to sign the "manifest" but that there was no discussion of Town business prior to 1:30.

Colleen Cutter, the former land clerk, who worked at Town Hall adjacent to the area where meeting notices are normally posted, testified that there was no posting at the Town Hall on May 3, 1996 for the May 4 meeting.

As there is no indication that anything other than personnel issues were discussed at the meeting, the court finds no violation of the right-to-know law. With regard to whether the Board was required to advise Chief Nelson that the meeting could have been public, as established above, the right-to-know law imposes no duty on the Board to inform a public employee of his legal rights. Finally, there is insufficient evidence to indicate that the Board failed to properly post notices of the meeting.

June 22, 1996

The meeting notice indicates that a non-public session was scheduled for Saturday, June 22, 1996 at 2:30 pursuant to RSA 91-A:3, II (c). (Exhibit 10). The notice is signed by Joanne Heger and dated June 20, 1996. Petitioners allege that matters inappropriate to a non-public session were discussed at this meeting.

[8] According to the restricted minutes, after Mr. March moved to enter into a non-public session for the purpose of discussing personnel issues within the New Durham Fire Department, the Board moved to appoint a designated Selectman to hear evidence against Chief Nelson in a special personnel hearing. The Board further moved to ratify a "telephone poll of the Board to implement an operating policy for the New Durham Fire Department ambulance . . . ." (Exhibit 10). In addition, the Board discussed a letter from Captain Swett regarding the operational policy adopted by the Board for the New Durham Fire Department. Finally, the Board moved to authorize the Town Administrator to cease operations of the New Durham Fire Department Ambulance and engage an outside ambulance service.

The Board, in discussing matters in a non-public session which do not fall within one of the exceptions in 91-A:3, violated the right-to-know law at the June 22, 1996 meeting. Specifically, the Board indicated that it was conducting a non-public session under RSA 91-A:3 II (c) which allows for discussion of matters, which if discussed in public, would likely affect adversely the reputation of any person. The operational policy of the ambulance and the possibility of hiring an outside ambulance service certainly were not topics which fall within this narrow exception to the open meeting requirements. Therefore, the respondents violated the right-to-know law in discussing such matters in the nonpublic session held on June 22, 1996.

[9] June 25, 1996

The meeting notice indicates that a non-public session, pursuant to RSA 91-A:3, II (c) would be held on June 25, 1996 at 5:30 p.m. at the New Durham Town Hall. (Exhibit 11). According to the restricted minutes, the Board entered into non-public session to discuss personnel issues within the New Durham Fire Department.

During the non-public session, the Board and Herman conducted the following business: they discussed a letter from Captain Swett regarding the ambulance operational policy; reviewed and voted to enter into a contract proposed by Lakeside Ambulance Service of Center Ossipee; voted to direct the New Durham Fire Department to cease operating the New Durham ambulance as of July 1, 1996; moved to authorize the Town Administrator to expend funds for the minimal repair of the former Highway Department garage for the short term utilization of the contracted ambulance service. (Exhibit 11).

Such matters clearly extend beyond "personnel issues within the New Durham Fire Department." Therefore, by engaging in topics not authorized for discussion in non-public sessions, the respondents violated RSA 91-A.

Accordingly, the court hereby GRANTS the petitioners' requested injunctive relief. Pursuant to RSA 91-A:8, the petitioners are awarded costs incurred in the course of this lawsuit. The Respondents shall refrain from further violations of the right-to-know law, RSA 91-A. The court notes that the petitioners have not sought to invalidate any action taken at such meetings in violation of RSA 91-A. See RSA 91-A:8, II.

[10] Respondents' Request for Findings of Fact and Rulings of Law:

GRANTED in part, DENIED in part: 3.

DENIED: 1, 2, 4, 5, 6.

So Ordered.

   11/4/96       /s/   

DateBruce E. Mohl

Presiding Justice

1 The Fire Chief, Brinley R. Nelson, is an intervenor in the matter.

2 RSA 91-A:2 provides in pertinent part:

A "meeting" means "the convening of a quorum of the membership of a public body, as provided in RSA 91-A:1-a, to discuss or act or matters over which the public body has upon a matter supervision; control, jurisdiction or advisory power. "Meeting" shall not include:
(a) Any chance meeting or social meeting neither planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made; however, no such chance or social meeting shall be used to circumvent the spirit of this chapter;