MOULTONBOROUGH — With removal proceedings against two members of the Planning Board scheduled on Monday, the selectmen last week sought but failed to overcome charges that they violated the Right-to-Know law by deciding to begin the process while consulting with town counsel behind closed doors.
A motion intended to legitimize the actions taken at the controversial meeting failed by a vote of three-to-two with selectmen Chris Shipp, Jon Tolman and Ed Charest in the majority and chairman Joel Mudgett and Russ Wakefield in the minority.
Town Administrator Carter Terenzini, who has insisted that claims that the selectboard breached the law are without merit, said yesterday that the vote would have no impact on the hearings, which will be held as scheduled. "There have been a number of questions about whether the process has complied with RSA 91-A (the Right-to-Know law)," he said. "The purpose of the motion was to remove that issue from the table to concentrate on the real issues." He denied that the motion represented an admission that the selectboard's prior actions we're improper. "That's not what we're saying at all," he declared.
On July 18, a week after the Planning Board approved construction of an observation tower on Red Hill, the selectmen held a non-meeting with Town Counsel Peter Minkow to consider information they had received about the conduct of Josh Bartlett and Judy Ryerson in granting the approval. The selectboard agreed to begin removal proceedings and to instruct Town Administrator Carter Terenzini and Minkow to offer the two members the opportunity to resign rather than undergo a public hearing. After both Bartlett and Ryerson refused to resign, the selectmen outlined the charges against them, which bore primarily on their conduct in approving construction of the observation tower, in letters sent to each and subsequently scheduled public hearings to determine if there is cause to remove them.
Both the selectmen and Terenzini have steadfastly refused to disclose what transpired during the consultation with Minkow, which they have variously claimed was a "non-public meeting" or is protected by "attorney-client privilege." Among others Paul Puntunieri, a member of the Planning Board, has countered that the selectboard contravened the Right-to-Know by conducting deliberations and making decisions during the consultation.
According to the Memorandum of the New Hampshire Attorney General on the application of the Right-to-Know law, consultation with legal counsel does not qualify as either a meeting or a non-public meeting, but instead is a "non-meeting." The memorandum continues "consultation with legal counsel should be limited to discussion of legal issues. Deliberation about the matter on which advice is sought may not occur during consultation with legal counsel. The public body must reconvene and, unless a statutory exemption allowing deliberation in non-public session exists, conduct deliberation in public session."
Of the nine matters that may be considered in non-public session, only those that are likely to adversely affect the reputation of any person, other than a member of selectboard itself, applies. However, if the person in question requests an open meeting, if must be granted.
When the selectmen met last week, Terenzini informed them that Minkow recommended that they "ratify" the letters sent to Bartlett and Ryerson as well as the notice of the public hearings. "Why we're doing this at this juncture," asked Shipp, "I don't understand." He was echoed by Charest, who said "I'm not following the reason either."
"There's no new action," Terenzini replied. "You're ratifying what you've already done." He added that "you don't have to do anything" and assured the selectmen that the hearing would proceed if they chose to do nothing.
Tolman wondered "is it that he (Minkow) is uncomfortable with the procedure we've followed to this point?"
Peter Jensen, vice-chair of the Planning Board, which last month recommended against proceedings against two of its members, told the selectmen "I would encourage you not to do this unless you know what you're doing."
Terenzini intervened, saying "there continues to persist a question as to whether or not the board can consult with counsel and give counsel instructions in that meeting. He (Minkow) requests to have you ratify what you have done in an open and public session to remove and put to rest that question."
"Obviously he's telling you you broke the right-to-know law," interrupted Puntunieri, "and now you're going to fix it."
Terenzini reminded the selectmen that similar charges were brought in the past only to be dismissed by the Carroll County Superior Court. "I leave it to you," he said, again telling the selectmen they were not bound to act. "I think he (Minkow) remains comfortable with the advice he's given you."
With that the selectboard voted to reject Minkow's advice.
The public hearings are scheduled to begin on Monday at 1 p.m. in the Town Hall.