THE STATE OF NEW HAMPSHIRE
STRAFFORD COUNTY SUPERIOR COURT
JAMES J. MARTEL
v.
STRAFFORD SCHOOL DISTRICT and STEPHEN LEIGHTON,
JOANNE PIPER-LANG, BRUCE PATRICK, MARK DOLAN
and JANE VACHON
Docket No.: 02-E-049
ORDER
The plaintiff has filed for injunctive relief against the defendants seeking to, in part, invalidate the results of a Strafford School District Warrant Article and vote and to issue an injunction denying certain appropriations for the 2002-2003 fiscal year. In addition, they seek an order requiring the Strafford School Board members to adhere to the Right-to-Know Law, being RSA 91-A, and such other related relief. With respect to the individual School Board members, the Court finds they are not proper parties. The action is DISMISSED as to them.
The defendants argue there is no violation of the Right to Know Law or that the vote at the School District meeting was invalid.
After a review of pertinent School District meeting records and hearing offers of proof, the Court makes the following findings and orders.
The record will reflect that at the March 2000 School District meeting the Town of Strafford voted to establish a Land Search Committee for the purposes of finding a piece [2] of land for possible future school construction. This was based on a review of various existing and projected needs of the Strafford educational community. The Committee made a recommendation for purchase of a parcel known as the Jensen piece consisting of approximately 365 acres. The minutes would reflect that for the time period in question the Board discussed a proposed acquisition in 27 public sessions and three nonpublic sessions between July 12, 2000 and January 9, 2002.
On or about February 13, 2001 the seller signed a Purchase and Sales Agreement with the School District with the agreed purchase price being $500,000 with there being a nonrefundable deposit and balance to be paid in July 2001 or at the buyer's option in two installments, with interest.
Paragraph 6 of the agreement provided the buyer's obligation to purchase was expressly made contingent on several conditions precedent. Among the conditions were those in paragraph (c) which is set forth in its entirety as follows.
(c) Approval. That the Buyer receives final authorization to purchase from all boards, commissions and governing and legislative bodies required by New Hampshire law on or before March 31, 2001 and without limiting the generality of the foregoing that the voters at the March 2001 Annual School District Meeting of the Strafford School District finally approve a warrant article authorizing the purchase of this parcel and raise and appropriate either the entire purchase price and related expenses or raise and appropriate $275,000 for the purchase at the March 2001 Annual Meeting and the balance due at the March 2002 Annual Meeting. IN THE EVENT THAT THE MARCH 2002 ANNUAL MEETING FAILS TO APPROPRIATE THE SECOND INSTALLMENT, THE BUYER WILL RECONVEY THE PROPERTY TO THE SELLER. IN THE EVENT THAT THE MARCH 2001 ANNUAL MEETING FAILS TO RAISE AND APPROPRIATE EITHER THE ENTIRE AMOUNT, OR $275,000, THIS AGREEMENT IS VOID, AND BUYER FORFEITS THE NONREFUNDABLE $25,000 DEPOSIT.
At the School District meeting in March 2001 Warrant Article 4 was explained with the "escape" clause apparently made clear to the voters. The Article reads as follows.
4. To see if the school district will vote to purchase a parcel of land, described as Map 16, Lots 14 and 37 being 365 acres, more or less, located at the intersection of Route 202A and Johnsonboro Road in Strafford for a purchase price of $500,000 payable as follows: $25,000 unrefundable deposit paid upon execution of the agreement and placed [3] in escrow, a nonrefundable payment of $275,000 paid to the seller at the time of the delivery of the deed and an additional $200,000 to be paid on July 8, 2002, plus interest at the rate of 6% per annum beginning to run on July 8, 2001 on the unpaid balance (approximately $13,000) and on such further terms and conditions as the School Board shall determine are in the best interest of the School District. And further, to raise and appropriate the sum of $275,000 for the first year's payments toward the purchase. The purchase and sale agreement contains an "escape" clause.
The voters approved the purchase by a vote of 88 to 64, which is less than what the plaintiff claims is the two-thirds voter requirement under RSA 33:K-8.
The petitioner claims the vote was invalid as there were nonpublic meetings at which the purchase was discussed. This is a claimed violation of RSA 91-A, being the Right to Know Law. He further claims the vote should be declared invalid as under RSA 33:8 the Article required the issuance of a bond or note with a ballot vote of 2/3 being required.
With respect to the claimed Right to Know violation, the plaintiff is accurate in his statement of the law. The School Board had three nonpublic sessions on November 29, 2000, January 24, 2001, and December 12, 2001. The minutes reflect going into nonpublic session pursuant to RSA 91-A:3, II (c) which permits the Board to go into nonpublic session to discuss matters which, if discussed in public, would likely affect the reputation of any person other than a member of the Board or any agency itself.
The Court accepts the offer that the Board required nonpublic session to discuss extensions and the obligation of the seller to repair a dam on the property and it was necessary to consider whether representations could be relied upon and if the sellers had the resources to repair the dam. The Court finds had this term of the contract been discussed in public, the reputation of the seller could have been seriously compromised. In addition, the Board discussed communications with legal counsel relating to extension requirements. Accordingly, the Court finds entering into the nonpublic sessions was [4] permitted. Even assuming a violation of RSA 91-A had occurred, the remedy is not invalidation of any vote.
With respect to the vote itself, of note are opinions by the Department of Revenue Administration (DRA) which reviewed voted appropriations and the manner in which appropriations were voted as required by RSA 21-J:35. Initially by letter dated January 15, 2001, the DRA found a 2/3 vote was required as the Purchase and Sales Agreement was to be financed over a two-year period. DRA further interpreted this covenant as containing a "default on a note provision" and not an "escape" clause. The appropriation was disallowed.
The decision was reversed by the DRA in June of 2001 as they were convinced the obligation was not debt but was subject to the approval of the voters. The appropriation was allowed.
While the DRA ruling is not binding on this Court, it nevertheless is instructive and the Court does not disagree with DRA's interpretation.
In reviewing the Purchase and Sale Agreement and the Warrant Article, it is clear the "escape" clause reference in the Warrant Article provides the agreement will be void if the money is not raised or appropriated by the voters. This negates any claim or suggestion by the plaintiff that the Warrant Article creates a debt or note, only that it asks the voters to approve purchase. Accordingly, only a majority vote was required.
Accordingly, for the foregoing reasons the petition is DISMISSED. Without finding any violation, the School Board, nonetheless, shall comply with the Right to Know Law and all statutorily mandated notice requirements. The request for reimbursement for payment [5] of attorney's fees is DENIED.
So Ordered.