Delegation asks court to throw out Gunstock case

LACONIA — The Belknap County Delegation is asking a judge to dismiss a legal action brought by the Gunstock Area Commission, maintaining there is no evidence that the delegation aims to remove any of the commissioners, and so judicial action is unnecessary.

But the commission argues the intention to remove three commissioners is clear based on recent statements and actions by two of the delegation members, including the chair.

The competing motions, filed in Belknap Superior Court, come just days before a hearing scheduled for Thursday when the Gunstock Commissioners are expected to ask a judge to stop the delegation from meeting to remove Commissioners Brian Gallagher, Gary Kiedaisch and Rusty McLear, arguing that the delegation is determined to do so without showing there are substantive grounds to justify their removal, and without fair treatment for the three commissioners during any proceedings.

In its motion to dismiss the commissioners’ case, the delegation states the claim by the three commissioners that they face impending removal is based strictly on “speculation or conjecture regarding future events” and because of that those cannot be used “as a basis for injunctive relief.”

The delegation maintains that since a Nov. 16 delegation hearing to consider the removal and possible replacement of Gallagher, Kiedaisch and McLear was canceled there is no reason for the court to get involved.

“This request is moot because the Nov. 16 hearing… was canceled and, thus, there is no meeting to enjoin,” the motion reads.

If another removal hearing were to take place, there is no evidence that its outcome is preordained, the delegation states.

“The (commission) intimates that the (delegation’s) suggestion that removal may be necessary somehow presages the outcome of the removal hearing,” the motion reads.

For their part, however, the commissioners say that the delegation has already made its intention clear, and that nothing that has occurred to show that that intention has changed.

The commissioners’ motion states that the delegation is seeking to remove three of the five members in retaliation for the Gunstock Commission effort to remove Commissioner Peter Ness, for alleged conflict of interest and insulting treatment of some Gunstock employees, charges Ness has denied. The commission referred the matter to the delegation which on Oct. 25 declined to remove Ness. At the delegation’s Nov. 16 meeting state Rep. Mike Sylvia, who chairs the delegation, said the effort to remove Ness may have amounted to an abuse of power by the commission.

The commissioners argue that if the delegation’s hearing into the Ness matter is any indication, the hearing into the potential removal of the commissioners would ignore recognized standards of due process.

“... Rep. (Norm) Silber presented Commissioner Ness’s case, and criticized the GAC’s grounds for requesting removal; they did not permit any GAC testimony of witnesses and then told the Delegation how they should decide the case,” the commissioners’ objection to the dismissal motion reads.

“This is illegal because ‘the constitutional guarantee of due process is violated when the hearing officer presents the case for one party, cross-examines the witnesses of the other party, and then decides the case.’”

The commission’s legal filing cites Sylvia’s demand on Oct. 25 that Kiedaisch resign is indicative of Sylvia’s bias in the matter.

The delegation’s motion states that it has the authority to remove and appoint members to the Gunstock Commission and there are no grounds to justify judicial interference in the matter.

“The GAC’s (case) invites the court to intrude on a removal procedure that is established by statute and provides no mechanism for judicial review,” according to the dismissal motion.

In addition the delegation maintains that the Gunstock Commission as a body does not have any legal standing to bring the case because any removal would be against individual members.

Besides requesting that the case be dismissed, the delegation is asking that due to COVID Thursday’s hearing be held via teleconference, and not in-person as the commission has requested.

The commission has told the court that the delegation’s insistence that a remote hearing is necessary in order to adhere to recommended COVID precautions is insincere because the delegation disregards those same precautions at its meetings.

But in the motion, the delegation argues that even if it does not observe those precautions itself it still is entitled to the safeguards elsewhere.

“Even if some members of the (delegation) have concluded that masks are unnecessary for their meetings, that does not mean that they are not entitled to take precautions from that point forward,” the motion reads.