Gunstock commissioners ask judge to halt Tuesday’s removal hearing

GILFORD — The issue of whether the Belknap County Delegation will be able to proceed with plans to remove three members of the Gunstock Area Commissioner next week is now in the hands of a judge.

The commission filed a motion in Belknap Superior Court requesting a judge to issue a temporary restraining order which would prohibit the delegation from holding a hearing scheduled for Tuesday to consider removing Gunstock Commission Chairman Brian Gallagher, and fellow Commissioners Gary Kiedaisch and Rusty McLear.

In their motion, the three commissioners are asking the judge to issue the temporary order without waiting for a response from the delegation, arguing that if they are removed on Tuesday as anticipated that action will cause imminent and substantial harm to the operation of the county-owned recreation facility.

The commissioners’ motion was filed with the court on Thursday. There had been no decision on the restraining order request as of 3 p.m. Friday.

Delegation Chairman Michael Sylvia called for the meeting on Tuesday at 6:30 p.m. at the Belknap County Complex to consider the removal of Gallagher, Kiedaisch, and McLear. According to a memo dated last Saturday and circulated to the other 17 delegation members, no public testimony regarding the issue will be permitted, although those who want to make comments may do so by emailing or calling a delegate no later than Monday.

In the filing, the commissioners said that if they are removed on Tuesday, they will immediately be replaced by new commissioners who, they fear, will then dismiss the lawsuit.

The commission voted 3-2 to take legal action at a special meeting on Wednesday. Gallagher, Kiedaisch and McLear voted in favor, while Commissioners Peter Ness and Jade Wood voted against.

In their filing, the three commissioners argue that they have done nothing to justify being summarily removed during their terms of office, and argue that they can be removed only for just cause.

They state in the motion for a restraining order and an accompanying petition that Sylvia and fellow delegation member state Rep. Norm Silber want to oust them in retaliation for their attempt last month to remove Commissioner Ness.

The commissioners asked the delegation to remove Ness for exhibiting a pattern of conflict of interest for repeatedly attempting to sell a ski instruction software program in which he has a vested interest, in addition to acting with hostility to Gunstock employees on numerous occasions — both of which are instances of “serious misconduct,” the petition states.

The delegation voted against removing Ness during a meeting on Oct. 25 during which no public comment or testimony was allowed. Silber argued Ness had not acted illegally or improperly since his efforts to sell his software to Gunstock had all failed.

The three commissioners on the other hand argue that Ness’s actions were in clear violation of New Hampshire law, according to court filings.

Gallagher, Kiedaisch, and McLear allege that given the peremptory way – meaning, making a final decision without debate – that the Oct. 25 delegation meeting on the Ness affair was handled, this coming Tuesday’s delegation meeting will not give the commissioners a fair opportunity to present their case and defend themselves.

“As was the case of the delegation’s Ness removal ‘hearing,’ the outcome of the delegation Nov. 16 hearing on removal of Kiedaisch, Gallagher, and McLear is a foregone conclusion that will cause imminent and irreparable harm to the GAC and these commissioners," the motion reads. The three commissioners “… seek a ruling that the delegation must hold a fair and impartial hearing — without participation by members that have prejudged the issues — when it seeks to remove a GAC commissioner for cause.” 

Under New Hampshire court procedures a judge can grant a temporary restraining order in a case such as this and then schedule a hearing within 10 days by which time the delegation would have had time to respond to the three commissioners’ arguments.