I am David K. Taylor, a resident of Durham, New Hampshire, one of 3 towns in the Oyster River Cooperative School District. I have lived here for about 20 years. I served 4 terms for a total of 12 years on the Oyster River School Board before losing re-election 2 years ago. As a member of the Board, I worked under the New Hampshire Right-to-Know law and served all 12 years on the Policy Committee. Each year all Board members received training on the Right to Know, at least once. From this training and experience I am in a better position than most to notice and understand when the Right to Know is being violated by the current Board. I am a full time software engineer and have no formal training as a lawyer. All 3 of my children have attended Oyster River schools since Kindergarten. I have 2 sons who have graduated from Oyster River High School and a daughter who is still enrolled there.
Serving on the Board can be stressful, so following my election loss I tried to totally disengage. I didn't attend any meetings or even watch them on TV. I didn't read minutes and purposely did not follow the work of the Board.
However, I started paying attention again when I heard that an Oyster River High School principal search failed very controversially in April 2011. I attended a few meetings to learn about what happened and express my concerns. I signed a petition along with about 400 others. I began to follow the Board and became very concerned about an apparent agenda they refused to articulate.
I have filed 2 lawsuits against the Oyster River School Board. The first suit was filed in August 2011 and alleged violations between March and July 2011. It covered the buyout of Superintendent Howard Colter and the search for an interim superintendent. The second suit was filed in January 2012 and alleged violations between October and December 2011. It covered the search for a permanent superintendent.
In June 2011 the Board announced out of the blue that it had signed a separation agreement to buy out Superintendent Howard Colter in full for $185,000 and had already started a search for an interim superintendent. Superintendent Colter had earlier announced he planned to retire at the end of that year when his contract expired. At the June 15, 2011 meeting where this was all announced, Director of Instruction Meredith Nadeau raised concerns about a meeting of Board members at the Durham Police Station that she witnessed in person on June 10, 2011. There was no notice or minutes for such a meeting as required by the Right-to-Know law.
Through a series of Right-to-Know requests over the next couple months, I began to piece together what happened at the Durham Police Station and more generally during the buyout and interim search.
The New Hampshire Right-to-Know law is chapter 91-A of the Revised Statutes Annotated, or RSA 91-A for short. One part of this law requires public bodies like the Board to respond to requests for public records. The Board is required to respond, or explain why it cannot respond, within 5 days. But, the central figure in all this, Chairman Henry Brackett, chose not to respond to all requests for over 40 days.
I made several attempts to receive these documents and eventually was told that the NH Attorney General could do nothing and that he suggested filing a lawsuit. I talked with the interim superintendent who said he didn't know why Henry Brackett was refusing and told me the only recourse was a lawsuit.
Knowing I was sure to be attacked, it was a difficult decision for me to step forward and file a lawsuit, but the New Hampshire law did not give me any other choice. I am not a lawyer, nor can I afford to put thousands of dollars of my own money at risk by hiring an attorney for a case I wasn't certain would prevail. But, if I did not, then Henry Brackett would be able to flaunt the law with impunity.
I filed the papers for a lawsuit. In short, I asked for only 3 things: 1) the Board disclose details about meetings during the buyout and interim search, 2) the Board commit itself to following the law in the future, and 3) the Board pay my costs incurred through the course of the lawsuit. This is a mild request for such a lawsuit. I really just wanted the Board to abide by the law, and provide the documents, something they should be doing anyway.
It wasn't until 53 days after my Right-to-Know request, and several days after filing my lawsuit, that Henry Brackett finally responded. Yet, the Board still did not provide records about the meetings at the Durham Police Station that I knew occurred. Some of the emails that had been released hinted at other Right-to-Know violations, but to get records of these meetings I had to make another legal step and take a deposition. I deposed Henry Brackett and requested documents related to the undisclosed meetings. Through the documents provided as part of my legal discovery, finally, I started to get a fuller picture.
The picture that the new documents began to paint showed the buyout did not take form in one day on June 15, 2011, but was started a few months earlier. It revealed that over a series of meetings, either under the cover of legal consultation or unofficial committees, the Board had conducted its business, or rather, the public's business, without abiding by any of the requirements of the Right-to-Know law.
At this point, the Board got a new attorney to represent them in this case. Immediately, their new lawyer approached me to settle, and I agreed. I had told their first lawyer that I would settle out of court. I am not a lawyer, and did not look forward to trying to fake my way through a trial opposite a professional lawyer. I originally asked for the Board to admit it violated the Right-to-Know law, and to have Henry Brackett personally pay for my court costs. During negotiations I realized these were both deal breakers, so I backed away from those points and settled on just a full accounting of what happened. I also requested a commitment to follow the law, and payment for my costs. Ironically, at another illegal meeting under the cover of legal consultation, the Board made a decision it would not settle, but would take the case to court.
The back and forth of the court papers for the trial are described elsewhere. It took the court about a month and a half to rule after the date of the trial that indeed the Board had violated the Right-to-Know law during the buyout of the superintendent and the hiring of the interim. The violations were extensive and varied and detailed in a 22 page decision.
The court decision says the Board violated RTK by making numerous decisions outside of meetings under the guise of consultation with legal counsel. "The Board exceeded the scope of the exception when it took actions beyond consulting with counsel." p. 16. The court ruled that at various informal committee meetings, "deliberations occurred at such meetings, circumventing the spirit of the Right-to-Know law." p. 11. The decision specifically cites "Board member [Megan] Turnbull's involvement with the press prior to June 15 without prior authorization violated the Right-to-Know law." p. 7
The decision also cites, "since [Henry] Brackett is a member of the Board, the Board is liable for his failure to respond in a timely fashion and his failure to disclose all of the requested information." p. 21. Actually, the taxpayers are liable and will have to pay for the Board failures and their decision to not settle out of court.
In summary, "the Board violated the statue when, prior to June 15, 2011 and outside of a public or non-public meeting, it deliberated and decided to separate from superintendent Colter and decided to begin a search for an interim superintendent." p. 7
Before the trial and ruling in the first case, the Board started a search for a permanent superintendent. Similar to the struggles over the ORHS principal search in April 2011, the Board wrestled with how to conduct the search process. In both cases, the key issue was whether the Board was in control, or whether some of that control would be delegated to a committee. This struggle focused on what was called the screening committee. Typically, it is called a search committee. The name is relevant because it shows the minimal scope the Board was willing to delegate. The Board voted meeting after meeting, back and forth, on the size and make up of this committee.
How would they choose who would serve? They struggled with how many candidates would be recommended by the committee. Initially it was 1 or 2, then 2 or 3, and even as high as 4 to 6 with the ability of the Board to reject the recommended candidates and ask for more. Effectively, the Board was refusing to give the screening committee any real authority to screen out any candidates. The Board oddly defined the parent of a student to excluded high school juniors and seniors. Repeatedly, Board members asked, "what if the recommended candidate is not the one we want?" The NESDEC consultant Ken DeBenidictus answered, "how would you know?" The work of the committee is supposed to be kept confidential, including the list of all candidates, so Board members should only know about the recommended candidates. The community was only left assuming the Board had a pre-selected candidate in mind and the screening committee, and indeed the entire search process, was a facade to make it appear the Board was listening to the community.
All the wranglings over the screening committee and search process as a whole took place at a series of "special workshops." Special meetings and workshops are defined by OR Policy BE - School Board Meetings. It was not clear what these meetings really were, since the policy does not use this combined term, and the term was varied from one meeting to the next. In any case, the Right-to-Know requirements of Policy BE were not being followed at these meetings.
Then, on December 21, 2011 the search process went from bad to worse. At this meeting, the Board finally appointed the members to the screening committee. The back and forth over how to select the community members of the screening committee finally settled on a contorted lottery. The Board members first narrowed the pool of candidates outside a meeting on December 19, 2011 by reviewing the letters of interest and then placing one name each in sealed envelopes. At the regular meeting on December 21, 2011, 2 of those envelopes were picked at random. This constituted a secret ballot, and is expressly prohibited by RSA 91-A:2 II.
A secret ballot by the Board is prohibited because it destroys accountability. The Right to Know means the public is supposed to know how each Board member acts and votes. A secret ballot hides their votes.
I was aghast. By then, the Board had been to court over Right-to-Know violations. I expected they would review the law and their policies and clean up their act as soon as I filed the first lawsuit. After all, they had promised to follow the law during the trial in November. Yet, here they were breaking the law again so blatantly.
Once again, I decided to act. Since the process to search for a permanent superintendent was compromised by the Board's continued violations of law and other attempts to limit public participation, and just asking them to obey the law didn't seem to have any real effect, I sought to invalidate the decisions made at the meetings that violated the law and policies. That is, I asked to invalidate the superintendent search.
The screening committee was scheduled to start their work with the new year. This would not only require a significant amount of their time, but also as they interviewed candidates from out of town, they would incur travel costs that would be paid by taxpayers. So, I filed the new lawsuit just before they started, after working over the holiday break to write up the petition. I also asked the court for a temporary injunction to stop the search until the hearing, again to avoid wasting more time and money.
The temporary injunction was denied, possibly due to my lack of legal skills. The trial occurred on February 2, 2012, and we are now awaiting the judge's decision. Again, the specific back and forth of this case are described in more detail elsewhere.
What do you do when a Board so flagrantly and repeatedly violates this fundamental right? In New Hampshire, our laws only give two choices: to ignore it or to take the Board to court. It would be much easier to simply ignore it; to wait until the next election and hope the next Board will be better. But, I have seen the Right-to-Know law violated repeatedly for the last several years by the Board, exemplified by an accusation at a Board meeting in 2009 of Right-to-Know violations that was soon followed by the resignation of the chair.
I believe this behavior is being passed from one Board to another and won’t stop until compelled to do so. I have spoken out against it repeatedly over the years, only to be ignored.
I wish our state had a mechanism such as that in Massachusetts, where there is an ethics commission to investigate and prosecute Right-to-Know violations. New Hampshire does not have any such tools. The only enforcement comes from citizens in court. If a citizen is not willing to stand up for this right, it will be denied.
Fundamentally, the reason the superintendent search is in jeopardy is because of the actions of this Board. The judge at the end of the trial pressed their lawyer several times to admit they violated Right to Know with their secret ballot. If my case is not valid, the judge will rule that way. The ends do not justify the means. We should all stand up to injustice and hold our public officials accountable, particularly for such prolonged and flagrant abuse of the public trust.
I had hoped that as soon as my first lawsuit was filed that the Board would review the Right-to-Know law and policies and start following them. Yet, the Board continues, even after filing my second lawsuit, to violate Right to Know. It frankly just amazes me.
I filed my first lawsuit back in August just asking the Board to disclose their past violations and agree to stop any future violations, basically come clean and stay clean. This was after a particularly flagrant and destructive few months of Right-to-Know violations. I actively expected to settle out of court, compromising on my demands, only to learn that the Board totally refused to settle and instead took the case to court. Not only did this cost me countless hours of work in my spare time and thousands of dollars, it cost the taxpayers many times more. It was yet another reckless act by this Board. Again, I was amazed.
Yet, even though the Board was in court for violating Right to Know, they did not stop. Again, I could either ignore their behavior or press further. I decided to stand again for our rights.
Right to Know is not optional; it is fundamental. All of our basic civil rights like voting, speech, assembly, petition, etc. all depend on the public knowing what their elected officials are doing on their behalf. How else can we make sure this Board or any Board is working for the community instead of themselves? I know that it is not easy for the Board to figure out what is best for the community, but if you actively exclude the community by violating their right to know, then I know you are not even trying to figure out what is best. How can we hold the Board accountable, know whom to vote for, what to say or write, if we don’t know what they are doing on our behalf?
Right to Know is about 2 things: records and meetings. While my first lawsuit started because Henry Brackett simply refused for over 50 days (instead of the required 5 days) to respond to a request for records, once I started getting those records I realized this refusal was just a cover up of a series of meetings where they egregiously violated Right to Know. Meetings are the basic way the Board does business, and Right-to-Know laws and policies define the basic rules for those meetings. Over months they hid the public business from the public. They did this while causing great upheaval and misappropriating public funds. As a specific example, Henry Brackett had district bills sent to his home address where he hid them while others asked the SAU for copies. I think they covered it up because they did not want the public to know what they were doing. Please read the 22-page decision by the judge to see how wrong this all was. These are not trivial.
The Right-to-Know law has specific requirements for Board meetings. These requirements ensure that the public will be aware of meetings early enough so they can arrange to attend; that as much as possible of the Board business is conducted in public; and, that accurate and complete records are kept so the public can read about what the Board did. When the Board does not follow these requirements, the public can be excluded and may not be able to know what the Board is doing.
This lawsuit is not about a particular candidate, and indeed was filed before any candidate names were released and even before the screening committee first met and anyone in the district knew who had applied. The Board pressed ahead nonetheless, and indeed accelerated the process, making more violations and excluding more people from the process.
I think leadership is key to setting a positive culture in our schools, so I think the superintendent is one of the most important choices our community makes. It is wrong for such a decision to be made by a process that violates Right to Know, and thereby doesn’t allow the community to participate in as full a way as possible. While I accept that the screening committee did a good job, and indeed that Dr. Morse may be fine, but many had given up on the process well before the committee even formed. The gyrations the Board went through to form the committee, and the process more generally, cast huge doubts.
I purposely tried to stop the search process before the committee even met the for the first time and invested in this process. I failed to do so, and the Board in it’s haste only took that signal as reason to accelerate the search, casting even more doubts and making more right to know violations. I have no personal complaint about Dr. Morse or any of the other candidates. Frankly, I know very little about any of them. But, even a good result from a bad process needs to be questioned. I would have no problem if Dr. Morse was ultimately the superintendent, though I think he would have much broader acceptance and start to heal our community if that choice were made by a truly open and inclusive process that upheld our right to know.
I think it would be wrong to withdraw the lawsuit for several reasons. Since the Board has continued to violate the Right-to-Know law after the first lawsuit was filed, and even after the judge's decision, it clearly did not have a positive impact on their behavior. I wish it had. While the violations in the second case might not seem as egregious as the first, that is because the number of violations in the first case are so overwhelming. Communications outside a meeting and a secret ballot are each on their own very serious violations. To withdraw my petition at this point would be to say that these violations don't matter, that Right to Know doesn't matter, that it is OK for the Board to violate it with impunity. It would imply that process and law don't matter and that the end justifies the means. We should not look away as the Board does the public's business secretly, instead of inclusively.
Right now, the decision is in the court's hands. We need to let the court decide whether the Board indeed violated the Right to Know law again as I allege. If the lawsuit were withdrawn, we would never know, and they would feel their methods were vindicated. I just don't see that as the proper course.
In the end, it is much easier to stand on principle when it is to your own advantage, it is much harder when it is just right. I chose to stand for what is right.
No. At the Candidates' Forum on February 21, Jim Kach said the first lawsuit was appealed. It was not. The first case is finalized and neither side appealed the decision.
I did file a motion to reconsider that has already been ruled on. A motion to reconsider is not an appeal, but it serves to keep legal issues open in case there is an appeal. I thought the Board might appeal after losing so profoundly, and I wanted to keep three issues open should they do so. I expected the motion to reconsider to be denied as I think they usually are, and my motion was denied.
See the court papers for the first lawsuit for the motion to reconsider and ruling.
The first lawsuit is decided. The decision resoundingly found the Board violated Right to Know laws, and they did not appeal.
The second case is now awaiting a decision of Judge Brian Tucker of the Strafford County Superior Court. It took about a month and a half for the first case to be decided, and the size and complexity of the issues are comparable for the second case. But, it is really anyone's guess when it will be decided.
We have to wait to see what the Court will decide. Based on the facts in the case and the judge's questions at the end of the trial, I am optimistic that the Court will agree with my case and rule that the Board violated Right-to-Know. At the very least the secret ballot and communications outside a meeting seem to be clear violations. I really have no idea about what remedies they will award. Given that this is the second significant case of Right-to-Know violations by this Board, I hope the Court will at least enjoin the Board from future violations.
Beyond these cases, I desperately hope the Board will take Right to Know seriously and make sure all their future work is done in public, to the full extent and spirit of the law.
The court papers for the first lawsuit are available here.
An index of all emails produced for the first lawsuit is available here.
The court papers for the second lawsuit are available here.
YouTube videos of recent highlights.