Clay v. Dover School Board, Doc. No. 219-2013-CV-139 (Strafford Super. Ct., November 1, 2013) (Tucker, J.)

Pages: 1 2 3




No. 219-2013-cv-139

Jeffrey Thomas Clay


Dover, New Hampshire School Board, et al.


Re: Respondent's Partial Motion to Reconsider
(document no. 13)

The Dover School Board moves for reconsideration of the court's order that it disclose unredacted minutes of a nonpublic session it held on November 5, 2012. The motion is denied.

The court found the Board did not comply with RSA 91-A:3 and that it entered nonpublic session improperly, because the motion to enter nonpublic session did not cite the specific statutory reason for which a nonpublic session was required. RSA 91-A:3, I (a) prohibits nonpublic sessions, except for reasons described in RSA 91-A:3, II. The statute requires a motion to enter nonpublic session, RSA 91-A:3, I (a), which must "state on its face the specific exemption under [RSA 91-A:3] paragraph II which is relied upon as foundation for the nonpublic session." RSA 91-A:3, I (b). The motion to enter nonpublic session on November 5, 2012 stated only that the purpose was "to discuss private matters."

[2] The Board provided the court with sealed, but unredacted minutes of the November 5 meeting. The minutes do not reflect that the personnel decision involved was explicitly one pertaining to an employee's "dismissal, promotion, or compensation," or to "the disciplining of such employee," RSA 91-A:3, II (a). Following its review of the unredacted minutes, however, the court gave the Board the benefit of the doubt and assumed for argument's sake that the matter discussed fell within this exception for which a nonpublic session was authorized under RSA 91-A:3, II (a). See Order, Oct. 7, 2013 at 3. See also Orford Teachers Assoc. v. Watson, 121 N.H. 118, 122 (1981) (court's in camera review of minutes may disclose statutory exemption justifying nondisclosure.)

Though the school board may have jumped this hurdle, the court made the further finding that the minutes of and decisions made at the nonpublic session should have been "publicly disclosed within 72 hours of the meeting because the Board voted on a motion simply "to seal the minutes" without making a determination that divulging the information "likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism," RSA 91-A:3, III. See Order, Oct. 7, 2013 at 3-4. The law requires such a finding in order to keep nonpublic session minutes private for more than 72 hours. RSA 91-A:3, III.

[3] The Board argues now that disclosing the minutes "would likely affect adversely the reputation of the employee at the center of the Board's discussion." Motion to Reconsider, p. 2, ΒΆ 8. The minutes do not obviously show the employee in a negative light. But the more important factor is that there is nothing in the record that establishes the Board determined to seal the minutes on that basis.


The motion for reconsideration is denied for the reasons given.


Date: November 1, 2013    /s/   

Brian T. Tucker

Presiding Justice