Clay v. Dover School Board, Doc. No. 219-2013-CV-139 (Strafford Super. Ct., October 7, 2013) (Tucker, J.)




Jeffrey Thomas Clay


Dover, New Hampshire School Board, et al.

No. 219-2013-cv-139


The Court ruled previously on certain aspects of Jeffrey Thomas Clay's complaint under the Right to Know Law (RSA 91-A), but certain claims were unresolved pending the receipt of supplemental information from the Dover School Board. That information has now been filed and this order includes rulings on the open issues. Mr. Clay moves for reconsideration on two issues, which the order addresses as well.

I. Order on Remaining Issues

(A) E-mail from Attorney Loughman to Superintendent Briggs Badger (February 4, 2013)

Mr. Clay sought access to an unredacted e-mail message from Attorney Barbara Loughman to Dover School Superintendent Jean Briggs Badger. After an in camera review of the unredacted e-mail, the court directed that certain redacted portions be disclosed to Mr. Clay and that the Board provide further informtion to the court so it could determine whether a [2] remaining redacted portion could remain so based the board's assertion that it was protected under the attorney-client privilege. See Order at 5-6. (document no. 6.)

The board advises that after the order issued, it gave Mr. Clay the entire e-mail unredacted. As a result, no further ruling on this issue is necessary.

(B) Minutes of Nonpublic Meetings

Mr. Clay petitioned for disclosure of minutes of nonpublic sessions of the board. The court identified the minutes of nonpublic sessions on December 11, 2011, November 5, 2012, March 18, 2013, and April 8, 2013 as those that are still under seal. See Order at 9. The court found no violation of the statute with respect to entering nonpublic session on March 18, 2013. Id. at 11.

(1) As to the meetings on December 11, 2011 and April 18, 2011, the court directed the Board to provide Mr. Clay with the public minutes for those meetings if it had not done so previously, so that Mr. Clay could ask the court to review the nonpublic session minutes if there were grounds to believe the Board entered nonpublic session without complying with the statute. Id. Having been provided with a copy of the minutes of the meetings on December 12, 2011, December 10, 2012, [3] December 17, 2012,1 and April 8, 2013, Mr. Clay has made no objection to the specific manner in which the Board entered nonpublic session on those dates.

(2) The minutes of the meeting on November 5, 2012 disclosed that the Board did not properly enter nonpublic session because the motion to do so did not cite the specific statutory purpose for which nonpublic sessions are allowed. See Order at 10-11. The Board subsequently filed the minutes of the nonpublic meeting on November 5 under seal for inspection in camera.

The sealed minutes reflect that the Board considered two matters during the nonpublic session. The first was a personnel matter that fell under the rubric of RSA 91-A:3, II (a) (2012 supp.). See Stoneman v. Tamworth School Dist., 114 N.H. 371, 374 (1974). The second matter discussed in the nonpublic session related to the expenditure of funds. It is not clear to the court that this topic is on the list of matters for which the Board is authorized to meet in nonpublic session. See RSA 91-A:3, II (a)-(j) (2012 supp.).

Nevertheless, the minutes of the November 5, 2012 nonpublic session and the record of decisions reached therein should have [4] been released to the public within 72 hours of the meeting because there was no recorded vote by which two-thirds of the members present determined the information should be withheld for a reason described in RSA 91-A:3, III (2012 supp.). Actions during the meeting went beyond "consultation with legal counsel," even though an attorney was apparently present. Therefore, the court orders the Board to make public the minutes of and the record of decisions reached at the nonpublic session on November 5, 2012.

The Board asked that an order requiring release of the November 5, 2012 nonpublic session minutes be held in abeyance to give it time to file an appeal. Accordingly, the record shall be released on the thirty-first day after the date on the clerk of court's notice of this decision, unless the Board files an appeal with the New Hampshire Supreme Court.

II. Clay Motion for Review/Reconsideration (document no. 7)

In this motion, Mr. Clay asks for further findings that the Board provided no public meeting notices prior to entering into nonpublic session and that it did not keep minutes of the public meeting that preceded entry into nonpublic session. Motion, p. 1. The court found from the evidence presented that the Board [5] kept public meeting minutes in those instances in which it entered nonpublic session. See Order at 10, citing Exhibit J.

Mr. Clay's argument with respect to whether the Board provided proper notice of meetings in which it intended to enter public session is not entirely clear. However, I agree with the Board that giving notice of the "nonpublic" nature of the session does not violate RSA 91-A. See Board Obj. to Mot. Reconsideration, p. 3; RSA 91-A:2, II (2012 supp.). The motion for reconsideration is denied.

III. Clay Motion to Reconsider (document no. 8)

The court disagreed with Mr. Clay that RSA 91-A required the Board to meet in public session and vote to enter what it called "executive session" to discuss "[s]trategy or negotiations with respect to collective bargaining," or for "consultations with legal counsel." Order at 12-13. Contact by Board members for such purposes is not a "meeting" under the law and is exempt from its coverage. See RSA 91-A:2, I (a), (b) (2012 supp.).

Unlike a "nonpublic" session where a vote is a necessary prerequisite, see RSA 91-A:3, I, there is no similar requirement that a vote occur in public session prior to consulting with legal counsel. See Attorney General's Memorandum on New [5] Hampshire's Right to Know Law, RSA Chapter 91-A, Appendix B, p. 72 ("Consulting with legal counsel before a public meeting is called to order or after it has been finally adjourned requires no special action.")

In his motion to reconsider, Mr. Clay suggests the Board did not prove an attorney was present or that any such "consultation" took place. However, in his petition he did not challenge the legitimacy of any specific "executive session," but instead lumped "executive sessions" with "nonpublic sessions" in making his argument that a vote is required in every instance where a board desires to meet out of public view, even if only to consult with legal counsel. See Petition, p. 2. The court dealt with the latter argument in its original order. The motion for reconsideration is denied.

IV. Clay Motion for Costs (document no. 9)

Mr. Clay requests his costs in bringing this action. The court may award costs if it "finds that such lawsuit was necessary in order to enforce compliance with the provisions of this chapter." RSA 91-A:8, I. The suit was necessary to bring about the release of the unredacted email as well as the minutes of the nonpublic session on November 5, 2012. Therefore, the motion is granted. Allowable costs shall be determined by the [6] clerk of court.


Date: October 7, 2013    /s/   

Brian T. Tucker

Presiding Justice

1 The Board says there was no meeting on December 11, 2011.