Telegraph v. City of Nashua, Doc. No. 226-1998-E-0042 (Hillsborough South Super. Ct., April 2, 1998) (Hampsey, J.)

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No. 98-E-0042

Telegraph Publishing Company


City of Nashua, Donald C. Davidson,
Mayor, and Board of Aldermen of the City of Nashua


The plaintiff seeks injunctive and other relief pursuant to RSA 91-A, the Right to Know Law. The plaintiff claims that the defendants violated the statute by holding a non-public meeting in contravention of RSA 91-A:2. The defendants argue that the statute is inapplicable because they did not convene a quorum of any public body at any one gathering. For the reasons that follow, the plaintiff's petition for injunctive and other relief is GRANTED in part and DENIED in part.


Defendant Donald C. Davidson (hereinafter "mayor") is the mayor of Nashua. In spring, 1997, the mayor and other city officials began negotiations with the Atlantic League of Professional Baseball (hereinafter "League") and one of its teams, ultimately determined to be the Nashua Pride (hereinafter "Pride"), to bring the Pride to Nashua. A good deal of the negotiations centered on the Pride's possible use of Holman Stadium, a city-owned facility. At some point in late 1997, the parties reached two agreements, one with the Pride and the other with the League. The agreements provided that the Pride and the [2] League could use Holman Stadium, commencing with the 1998 baseball season, in exchange for renovations to the stadium and other consideration. The Pride and the League have separate written agreements with the city.

To become effective and enforceable, the agreements had to be approved by the board of aldermen (hereinafter "aldermen") and the board of public works (hereinafter "BPW") commissioners. With that in mind, the mayor decided to provide the aldermen and the BPW with information on the agreements. He further decided to take this initial step before presenting the agreements at a public meeting or otherwise making the terms of the agreements public. This was partially due to the mayor's inaugural promise to improve communication with the aldermen. This promise came in response to the aldermen's past complaints that they did not receive important information before it was reported to the press and thus could not respond effectively to questions from the media or their constituents.

Having scheduled a press conference for January 13, 1998, to announce the agreements, the mayor planned to meet with the aldermen and BPW prior to that time. He initially planned to call a non-public session of the aldermen to present the agreement. However, the mayor was advised by the city attorney that a non-public session would violate the Right to Know Law. In response to this advice, the mayor devised a scheme whereby he would meet with the aldermen and BPW commissioners in smaller groups. A plan was devised so that there would be less than a [3] quorum present at any session.

The mayor scheduled six sessions with the aldermen, BPW commissioners and League and Pride representatives. He scheduled three sessions - two on January 10, 1998, one at 9:00 a.m. and one at 1:30 p.m., and one for Monday, January 12, 1998 at 10:00 a.m. Each session was attended by four aldermen, one member of the BPW and League and Pride representatives. The mayor also scheduled three sessions with individual aldermen.

In scheduling these sessions and determining who would be present, the mayor was careful not to have a quorum of any board or committee so as not to contravene the Right to Know Law. In preparation, the mayor's secretary prepared a document which listed the names of the people attending each session. She compiled this list by calling the various aldermen and commissioners and giving them options of times and days to meet. Alderman Tollner does not recall any discussion regarding the requirement that there be less than a quorum, but did know that there would be more than one session to accommodate schedules and to comply with the Right to Know Law. He and Alderman McCarthy were aware of the scheme at least one day prior to the meetings.

On Friday afternoon, a reporter for the Nashua Telegraph questioned the mayor as to why the original meeting had been cancelled. He explained the new arrangement of holding three separate, non-public sessions.

The three separate sessions were substantially similar in format and content. At each session, the mayor made a [4] presentation explaining the terms of the agreements he had negotiated. After his presentation, the mayor, league representatives and team representatives took questions from the attendees. In general, questions were raised with regard to the background of the team and league, the possible interference with other programs held at Holman Stadium, the financing of the renovation, and the use of city funds. Billy Johnson, the general manager of the Pride, testified that there was a general discussion with regard to the concept of the league, the business plan and the Pride and League credentials. Each session took about one hour.

On January 13, 1998, representatives from the city, the League and the Pride held a press conference to present information about the agreements to the public. The information provided at the press conference was essentially the same as that provided to the aldermen and commissioners in the previous three sessions.

On January 15, 1998, the aldermanic finance committee met, in public session, to consider the agreements. Each of the committee members received a packet that contained a copy of each agreement. The committee first considered the agreement with the League. The minutes reflect that the mayor did not present the entire agreement at the meeting. Rather, he highlighted changes made since the initial agreement was presented to the alderman in the three sessions over the weekend. At least one of the changes was the result of an alderman's input at one of the three [5] sessions. While there was some discussion before the agreement was approved, most of it focused upon the changes made to the agreement.

The committee also considered and ultimately accepted the proposed agreement with the Pride. Again, the mayor did not present the entire agreement. Instead, he engaged in a discussion with the aldermen and answered questions regarding amendments to and specific provisions of the agreement.

On January 27, 1998, the aldermen considered both agreements at their full board meeting. At that time, the agreements were approved and the mayor was authorized to enter into the agreements. In approving the agreements, the aldermen did not engage in any meaningful discussion.


The Right to Know Law provides in pertinent part that, "any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." RSA 91-A:7. However, the Court will only issue an injunction where there "is an immediate danger of irreparable harm to the party seeking injunctive relief, and there is no adequate remedy at law." UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14 (1987) (internal quotations omitted).

As a preliminary matter, the Court must determine whether the defendants violated the Right to Know Law. In interpreting a statute, the Court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered [6] as a whole. Welch v. Director, N.H. Division of Motor Vehicles, 140 N.H. 6, 8 (1995). If the language of a statute is clear and unambiguous, the Court need not look beyond the words of the statute to determine legislative intent. Silva v. Botsch, 120 N.H. 600, 601 (1980). However, the Court should construe all parts of the statute in the context of the overall statutory scheme and avoid any interpretation that would lead to an absurd or unjust result. Doggett v. Town of North Hampton, 138 N.H. 744, 746 (1994) (citations omitted).

These rules of statutory construction apply to the Court's review of the Right to Know Law. Accordingly, the Court will construe the statute as a whole.


A. Violation of Right to Know Law

The Right to Know Law provides in its preamble:

Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter 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. The New Hampshire Supreme Court has consistently held that the Right to Know Law should be broadly construed in order to further these objectives. Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996) (holding that the court will construe provisions of the Right to Know Law favoring disclosure broadly and exemptions narrowly in order to advance the purposes of the act).

In furtherance of its stated objectives, the Right to Know [7] Law requires that "meetings" must be open to the public, except in certain circumstances not at issue here. RSA 91-A:2. The statute provides that "a 'meeting' shall mean the convening of a quorum of the membership of a public body . . . to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power. . . ." RSA 91-A:2, I (emphasis added). Plaintiffs claim that the mayor violated the statute by conducting the three non-public sessions on January 10th and 12th. Defendants counter that the Right to Know Law does not apply because no quorum was convened at any one session. The Court disagrees.

There is no New Hampshire authority addressing the circumstances in this case. Accordingly, the Court will apply the rules of statutory construction and look to other jurisdictions for guidance in deciding this issue of first impression.

Although not binding precedent, the Court is persuaded by the Ohio Supreme Court decision in State ex rel. Cincinnati Post v. Cincinnati, 668 N.E.2d 903 (Ohio 1996). The facts, issues and statute in Cincinnati Post are essentially the same as those in the case at bar. In Cincinnati Post, the Court framed the issue as follows, "whether a public body may circumvent the requirements of the statute by setting up back-to-back meetings of less than a majority of its members, with the same topics of public business discussed at each." Id. at 906. The Cincinnati Post court held that the city council's back-to-back meetings, [8] when taken together, violated the Sunshine Law, Ohio's counterpart to the New Hampshire Right to Know Law. The Cincinnati Post court focused on the deliberative nature of the meetings, that is, opinions, critiques and acceptance regarding the city's proposals.

In view of the foregoing, the Court finds and rules that the mayor's plan violated the spirit and intent of RSA 91-A. Technically, there was not a quorum at any one session. However, the three sessions were orchestrated within a short period of time; each session consisted of essentially the same format; the participants addressed virtually identical topics; and the participants raised similar questions. Moreover, like the meetings in Cincinnati, the evidence indicates that the sessions were, at least partially, deliberative in nature.

Under these circumstances, this Court finds and rules that the arrangement used to avoid convening a quorum was nothing more than a subterfuge to improperly circumvent the Right to Know Law. Such a subterfuge is precisely the type of behavior that the Right to Know Law prohibits. The Court will not interpret the Right to Know Law to allow the mayor's plan because it is directly contrary to the statute's purpose. Therefore, an interpretation which allows this type of arrangement would be absurd and unjust. Accordingly, the Court finds and rules that the three sessions were essentially three parts of the same meeting which maintained a quorum and thus were subject to the requirements of the Right to Know Law.

[9] New Hampshire authority addressing other contexts supports this ruling. See Town of Tuftonboro v. Lakeside Colony, Inc., 119 N.H. 445, 452 (1979) (holding that developer's scheme which was created to circumvent the provisions of the subdivision statute would make a mockery of the statute). Cf. Buxton v. Town of Exeter, 117 N.H. 27, 29 (1977); Ehrenberg v. City of Concord, 120 N.H. 656 (1980).

B. Injunctive Relief

Having determined that the defendants violated the Right to Know Law, the Court must now determine if injunctive relief is warranted. First, the violation in this case requires a finding of irreparable injury. The very existence of the Right to Know Law attests to the value the legislature gives to public discourse and the democratic process. The mayor's plan, designed with the intention of excluding the public, invariably harmed the public by creating a mistrust of government functions and a lack of confidence in government officials. In addition, future harm is inevitable because the mayor indicated that he intended to use similar arrangements in the future.

Second, the petitioners have no adequate remedy at law. They cannot be made whole by means of a damage award. However, an injunction ensuring compliance with the Right to Know Law will be instrumental in preventing future abuses.

The Court finds and rules that injunctive relief is appropriate in the circumstances of this case. Accordingly, the defendants are hereby enjoined from using similar arrangements of [10] segmented meetings in the future which circumvent the clear intent of the Right to Know Law.

C. Production of Notes and Preparation of Minutes

The plaintiff also seeks an order that requires the defendants to divulge any notes or other records of the sessions, or if none exist, to prepare, as accurately as possible, detailed minutes of the three sessions. The plaintiff's request for notes and records created during or after the three sessions is GRANTED. However, the Court recognizes that it may be extremely difficult or impossible to compile a complete record and detailed minutes of the sessions at this point. In addition, although the deliberative nature of the session may be lost, the press conference on January 13, 1998, and the meeting of the finance committee served to provide the public with an adequate, though not complete, amount of information. Accordingly, the plaintiff's request that detailed minutes be compiled is DENIED.

D. Attorney's Fees and Costs

Finally, plaintiff seeks to have this Court award costs and reasonable attorney's fees against defendants, including the mayor personally. RSA 91-A:8 provides that the Court shall award attorney's fees and costs to the plaintiff if the Court finds that (1) the lawsuit was necessary to make the information available or the proceedings open to the public and; (2) defendants knew or should have known that the conduct engaged in was a violation. See New Hampshire Challenge, Inc. v. Commissioner, New Hampshire Department of Education, 142 N.H. 246, 698 A.2d [11] 1252 (N.H. 1997). The Court must find both prongs in order to award attorney's fees and costs for a violation of the Right to Know Law. Id.

The Court finds that the first prong was satisfied. However, attorney's fees and costs are not appropriate in this case because the evidence does not indicate that defendants knew or should have known that the mayor's plan was in violation of the statute. The mayor consulted corporate counsel when he initially scheduled the non-public meeting and then scheduled the three separate sessions in an attempt to comply with the Right to Know Law. Although the Court finds that the mayor designed the arrangement in order to avoid the Right to Know Law requirements, the defendants did not have reason to believe that the arrangement actually violated the law. Accordingly, the plaintiff's request for attorney's fees and costs is DENIED.

In view of the detailed narrative order, the Court declines to rule on the plaintiff's request for findings of fact and rulings of law. See Geis v. Bourassa, 140 N.H. 629 (1996). The plaintiff's requests are granted to the extent they are consistent with this order and denied to the extent they conflict with this order.


Date: April 2, 1998    /s/   

Bernard J. Hampsey