THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
HILLSBOROUGH, SS. 02-E-0212
SOUTHERN DISTRICT
TELEGRAPH PUBLISHING COMPANY
v.
LITCHFIELD SCHOOL DISTRICT
ORDER
The parties are before the Court on a Right-to-Know action brought by the Telegraph Publishing Company ("Telegraph") against the Litchfield School District ("School District"). RSA 91-A:7. Plaintiff Telegraph asserts that the defendant School District had impermissibly entered into a non-public session during a meeting in which a replacement member of the Litchfield School Board was selected.
The Telegraph Publishing Company publishes a newspaper of general circulation in the Nashua, New Hampshire area. Its area of circulation includes the Town of Litchfield. The Telegraph provides coverage of news events within the Town of Litchfield, including coverage of Litchfield School District matters.
[2] The Litchfield School District is a local school district that is governed by a school board of five members ("School Board" or "Board"). Around May 2002, one of the five sitting members resigned from the Board. Under the provisions of RSA 671:33, when a vacancy occurs on a school board, the remaining members of the board may fill the vacancy by appointing a replacement member who serves until the next school board election.
The Litchfield School Board embarked upon a process of selection of the replacement member. An advertisement was published seeking candidates for the vacant position from persons who were citizens of the Town of Litchfield. Plaintiff's Exhibit 1. A meeting was thereafter to be held concerning the candidates. Defendant's Exhibit A. Each of the candidates would be asked four identical questions concerning their candidacy. Plaintiff's Exhibit 2. Those questions would be posed and answered in a public session. After the public session, the Board was to go into a non-public session to discuss the candidates. Id. After the non-public session, the Board would return to a public session and vote upon the candidates. Id. Through this process, Stephen Graveline was selected as a replacement school board member and is presently serving in that position.
The Telegraph asserts that the discussion portion of the selection proceedings were required to be conducted in public session under the provisions of RSA ch. 91-A, New Hampshire's Right-to-Know Law. The School District asserts that it was permitted to hold a non-public session for discussion of the candidates under the provisions of RSA 91-A:3, II(c). That provision permits [3] public agencies to hold non-public sessions concerning "[m]atters 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." RSA 91-A:3, II(c).
The Telegraph learned of the Board's proposed procedure of a non-public discussion concerning the candidates. The Telegraph, through its Regional Editor, and, later, through its legal counsel, wrote to the School District and asserted that the proposed procedure of holding a non-public portion of the meeting was unlawful. Plaintiffs Exhibits 5 and 7. The Telegraph submitted that if the proceedings were to take place in non-public session, it would bring a Right-to-Know action and would request that the selection proceedings be vacated. Id.
The School Board asserts that the Right-to-Know Law permits a board to discuss matters of the respective qualifications of a replacement board member in non-public session. The Board submits that because those matters discussed can potentially include issues such as a candidate's diligence, honesty, conscientiousness, prior legal or other entanglements and the like, such discussions could impact a person's reputation.
The Telegraph submits that issues of the selection of a replacement member are matters of great public interest and of importance within a school district. The plaintiff also submits that issues of a candidate's qualifications are generally in the public eye already, and, further, one who offers himself or herself as a candidate for public office knows that he or she will face scrutiny of his or [4] her qualifications. The Telegraph notes that where a school board is selecting a replacement member, it serves in a surrogate electoral capacity and Right-to-Know issues are much more pronounced.
The parties agree that the School Board was not required to discuss the candidates prior to the vote, whether in a public or non-pubIic session. The Court notes that concerns about discussing reputation-impacting matters in public session could potentially cause a board to consider voting on candidates without the benefit of discussion. In the case at bar, while there may be some disagreement as to whether the Chairman of the School Board had requested whether any of the candidates wished to have a public discussion session, there is no disagreement that none of the candidates had requested a public discussion session. Additionally, the interviewing portion of the proceedings had taken place in open session.
A conscientious review process concerning candidates for a vacant office may be reasonably viewed by a school board as raising potential matters that could adversely impact a person's reputation. The Court concludes that it was permissible for the School Board to enter into a non-pubIic session for discussion of the qualifications of the candidates. The Court also concludes, however, that the Board did not fully comply with the minutes requirements of RSA 91-A:3, III.
The minutes provisions of RSA 91-A:3, III parallel the provisions of RSA 91-A:3, II(c) relating to matters which may adversely affect a person's reputation. As provided in RSA 91-A:2, II(c):
Minutes of proceedings in nonpublic session shall be kept and the record of all actions shall be promptly [5] made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself or render the proposed action ineffective. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.
A reading of RSA 91-A:3, II(c) and III would indicate that the minutes that are taken of a non-public session must be more than a one-sentence restatement of the scheduled activity. The June 6, 2002 minutes appear to set forth the following concerning the substance of what was discussed: "1. Board discussion." Plaintiff's Exhibit 6. While the Right-to-Know statute does not describe the nature of minutes that are required, there can be a point when minutes are so sparse that they become rather difficult to describe as minutes. Such minutes would serve little by way of memorialization of the non-public discussion.
The Court concludes that the minutes of the June 6, 2002 non-public session are insufficiently informative and do not comply with RSA 91-A:3, III. Thus, the Court finds that a violation of the Right-to-Know Law has taken place. The Court is not persuaded, however, that the violation of the Right-to-Know Law at bar would call for the setting aside of the appointment of the new school board member. RSA 91-A:8, II. A more appropriate form of relief, particularly for a plaintiff news-gatherer, would be to have the statutorily required information made available.
[6] The following orders are entered:
1. Defendant Litchfield School Board shall prepare adequate minutes of the non-public session of the selection meeting at issue. If the Board believes in good faith that "divulgence of the information likely would affect adversely the reputation of any person," it need not include that specific information. The reconstructed minutes shall be filed with the School District and provided to plaintiff Telegraph within thirty (30) days of the date of the Clerk of Court's notice of this order.
2. Defendant Litchfield School District is enjoined from engaging in non-public candidate selection sessions in the absence of maintaining adequate minutes of the non-public proceedings.
3. The Court declines to grant the plaintiff attorney's fees. The Court does not find that the violation was obvious or deliberate or willful. The Court also notes that the Board acted in good faith and on advice of counsel.
4. The Court does grant plaintiff its taxable costs under Superior Court Rule 87.
SO ORDERED.