Telegraph v. City of Nashua, Doc. No. 226-2008-E-186 (Hillsborough South Super. Ct., April 29, 2008) (Groff, J.)

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This is a petition by the publisher of a daily newspaper in Nashua, seeking a determination by the Court that the Nashua Board of Alderman violated RSA 91-A, the so-called Right-to-Know Law, by meeting in closed session with the Nashua Board of Education. Petitioner also seeks an award of attorney's fees for litigating this matter. For the reasons set forth herein, the petition is GRANTED.

The parties appeared with counsel and the hearing proceeded on offers of proof. The parties also submitted affidavits of certain witnesses. The facts and the law appear largely uncontested. The contract between the Nashua Board of Education (BOE) and the Nashua Teacher's Union (Union) expired in 2006. The Union is the collective bargaining unit representing the teachers employed by the School District. The teachers have been working under the terms of the expired 2006 contract while a new contract was being negotiated. The BOE does not have authority to commit city funds to the performance of the contract. This authority rests solely with the BOA, who must approve the financial obligations under the contract. During the course of the negotiations between the BOE and the Union, three tentative agreements had been achieved. However, the cost items in all those agreements were disapproved by the BOA and the Mayor.

After protracted, unsuccessful negotiations, the Union announced its intent to strike on March 31, 2008, if an agreement on a new contract was not achieved by that date. In [2] an attempt to reach agreement on a contract and avoid a strike, the BOE and the Union engaged a mediator for the purpose of facilitating contract negotiations. A closed negotiating session with the mediator was held on Saturday, March 29, 2008. During and prior to the Saturday negotiating session, the Union informed the BOE that it would not negotiate another tentative agreement that was doomed to be rejected by the BOA and the Mayor. The Union demanded a commitment that if a tentative agreement was reached, it would be approved by the BOA and the Mayor. The BOE could not and did not make such a commitment.

The Union and the BOE agreed to meet for further negotiations with the mediator on Sunday, March 30, 2008. The BOE invited the Mayor and the BOA to a joint session with the BOE on Sunday, March 30, 2008. The avowed purpose of this meeting "was to update the BOA and the Mayor on the status of the negotiations, to discuss in general terms the strategy that the BOE intended to pursue through the remainder of the negotiations, and to get some sense from the BOA and the Mayor whether the BOE's negotiating strategy was one that the BOA and the Mayor could support if it resulted in a tentative agreement with the Union." Affidavit of John "Jack" Kelley, p.2.

At the joint meeting of the BOE and the BOA on Sunday, a quorum of the BOA, including its President, and the Mayor were present. At the request of a member of the BOA, the City attorney rendered a written opinion to the effect that this meeting would be subject to the requirements of RSA 91-A, and that, accordingly, it must be open to the public. Notwithstanding this opinion, the BOA, the Mayor and the BOE announced that under RSA 91-A, this meeting was not open to the public. Reporters, including a reporter for the Nashua Telegraph, and members of the public were not permitted to attend.

The BOA, the BOE, and the Mayor met for approximately 90 minutes. Neither the Union or the mediator were present. The BOA published summary minutes of the meeting [3] which summarizes the conduct of the meeting, as follows:

Discussion: Board of Education negotiator Tom Flygare reviewed the status of negotiations between the Board of Education and the Nashua Teacher's Union. The current proposals from each side were explained. The Board of Aldermen members asked various questions regarding the impact of these proposals. These questions included what would be needed for the supplemental appropriation, what would be the total cost of the contract, what impact would the contract have on the budget, and how would the contract be funded. These questions were answered by the Board of Education members, Mr. Flygare, Mr. Hottel, and Mr. Mealey.
The Board of Aldermen members were asked what parameters for the contract they might be able to support. Individual Aldermen expressed their opinions regarding this question. This information was requested because the Nashua Teacher's Union had expressed concern that the Union and the Board of Education would reach an agreement, but the Board of Aldermen may reject it. The Board of Education does not want to agree to something the Board of Aldermen cannot support.

A member of the BOA e-mailed the following description of the meeting to The Telegraph:

". . . we did not dictate any terms. We were briefed on the status of the negotiations. I and other aldermen expressed keeping the budgets under the Spending Cap, with a supplemental appropriation under the cap this year and school budgets under the cap over the life of the contract. We expressed keeping to a mayoral policy for every union, namely no increase in the first year of the contract. Every aldermen [sic] expressed an opinion; a consensus of overall objectives was evident, but no specific terms were set."

"All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies." RSA 91-A:2 II. "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. A public body "includes" any board, commission, agency or authority, of any . . . municipal corporation." RSA 91-A:1 VI (d). A [4] "meeting" does not include, "strategy or negotiations with respect to collective bargaining." RSA 91-A:2 I (b). The petitioner claims that the meeting on Sunday, between the BOA and the BOE was a public proceeding, open to the public under RSA 91-A:2 II. The City and School Department argue that the meeting was not a public proceeding because it was specifically excluded from the statutory definition of "meeting" or "public proceeding" under the statute because it was simply "strategy or negotiations with respect to collective bargaining."

"To advance the purposes of the Right-to-Know Law [the court] construes provisions favoring disclosure broadly and exemptions narrowly." Lamy v. N.H. Pub. Utils. Comm'n, 152 N.H. 106, 108 (2005). "The party seeking non-disclosure has the burden of proof." N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 439 (2003). The court finds that the Respondents have failed to sustain their burden of proof that the meeting of the BOE and the BOA was not a public meeting under the Right-to-Know Law.

A quorum of the BOA was present and it met to discuss a matter over which it had supervision, control, jurisdiction, and advisory power. The BOA had no role in negotiating that contract, nor any strategic role in obtaining any particular terms or conditions of the contract. Its only role in the process was to approve or disapprove the financial obligations to be imposed on the City under the contract.

It is clear from the reading of the BOA's "minutes" and the e-mail of the alderman that the sole objective of the BOE in inviting the BOA to this meeting, and the sole objective of the BOA in attending the meeting, was to obtain in advance the BOA's tacit approval of the level of financial obligation that would be acceptable. In essence, this was a meeting [5] seeking to obtain the clandestine commitment of the BOA to a particular level of funding under the anticipated contract. Such a commitment under the Right-to-Know law must be done in the "light of day" in the public forum.

There are certainly alternative ways to communicate with the BOE regarding the matters of appropriate funding limits as applicable to teacher's union contract. Such effective communication has certainly been accomplished in the past without implicating the Right-to-Know Law. However, to accomplish that goal by means of a quorum of the BOA implicates the Right-to-Know Law and its mandates, which cannot be ignored no matter how well intentioned the BOA might be.

Therefore the court finds that by meeting with the BOE in this non-public session, the BOA has violated the express provisions and requirements of RSA 91-A. The court also finds that this action by the Telegraph was necessary in order to make the information communicated at that meeting available to the public and to ensure that such proceedings are open to the public in the future.

Therefore, the court orders as follows:

1. The BOA shall prepare detailed minutes of the meeting of March 30, 2008 with the BOE and such minutes shall be available for public inspection.

2. The Petitioner is awarded its reasonable attorney's fees incurred in prosecution of this petition.

So ordered.

April 29, 2008    /s/   


Presiding Justice