ALTON — A superior court judge has found that town selectmen on occasion have discussed matters in nonpublic session in violation of the state’s public meeting and records law, and has ordered them to cease the practice.
Judge James D. O’Neill III found that three times the Board of Selectmen discussed matters and made decisions on matters that were not included in the specified reasons the board cited for meeting behind closed doors.
“The court … assert(s) that the selectmen failed to confine discussions in non-public sessions to the RSA 91-A:3 exemptions which are relied upon as the foundation for the non-public sessions,” O’Neill wrote in the ruling handed down Friday.
RSA 91-A:3 is the statute number for the state’s Right-to-Know Law.
Specifically, the judge found that the board erred when it discussed the board’s policy dealing with the public’s participation at selectmen’s meetings in one closed-door session which was called in order to discuss pending litigation, and another non-public meeting held ostensibly to protect the reputation of a public employee. A third instance the judge found was improper was when the board discussed Town Hall safety concerns at a non-public session that was called to protect someone’s reputation and/or because making the discussion known would render any decision reached ineffective.
“I’m pleased with the ruling. It proves what I’ve been saying that they’ve been violating the Right-to-Know Law all along,” said Jeffrey Clay, the longtime local government critic who brought the suit. “The court saw through their lies,” he added.
The town attorney said the selectmen will abide by the judge’s ruling. But he pointed out that the judge found the selectmen had erred in only three non-public sessions held over a three-year period that Clay alleged were rife with such violations.
“It’s not good because there should not have been three (violations). But three isn’t bad,” attorney Jim Sessler said Monday.
The selectmen had inadvertently allowed their discussions to drift away from the topic for which the non-public meeting was being held, he explained.
He acknowledged the selectmen were being cautious about discussing matters that related tangentially to Clay, who has sued town bodies on a number of occasions.
“They are a little more careful because we are in court,” Sessler said. “They are cautious anytime someone sues.”
New Hampshire’s Right-to-Know Law specifies the limited reasons that a public body can hold a non-public meeting. Those circumstances are usually to protect the privacy of individuals, public safety, or the negotiating power of the government. The law further requires that before a body can enter into a non-public session, they must pass a motion by roll-call vote that specifies the reason for the non-public meeting.
O’Neill handed down his ruling after privately reviewing the unredacted minutes of non-public meetings from January 2016 and October 2018.
He also reviewed the minutes of 11 non-public meetings held by the Alton Water Works Commission which Clay accused of failing to have kept any minutes. Upon review, O’Neill found the commission had failed to file the minutes of its Feb. 13, 2018, meeting within five business days as required by the Right-to-Know Law.
The judge did not accept the selectmen’s explanation that they discussed the public participation policy in non-public session because Clay had taken the town to court, alleging they have enforced the policy in a way that violated his free-speech rights.
“It is not (presupposed) that the Public Participation Police becomes an issue that is proper for a non-public session because changes or amendments to it may be motivated by litigation,” O’Neill wrote.
Sessler said the judge’s ruling means the selectmen, like other public bodies, need “to err on the side of being liberal” providing as much transparency as possible to the business they conduct.
O’Neill denied Clay’s request that the Board of Selectmen be fined for the violations, stating the Right-to-Know Law does not make any provision for fines. But he did order the selectmen confine their discussions in non-public meetings to the specified purpose of the non-public session. He further ordered that in the meeting minutes, they block out information only for reasons clearly supported by the law.
O’Neill also awarded Clay attorney’s fees. But that matter is moot since Clay has been acting as his own attorney, and so there are no attorney’s fees that need to be reimbursed.
The judge criticized the selectmen and the water commissioners for ignoring Clay’s insistence that they have not been following the Right-to-Know Law.
“The court finds the selectmen and the commissioners should have known about their violations because the plaintiff is a vocal member of the community and on multiple occasions informed the selectmen that they were violating RSA 91-A during public meetings,” the judge wrote.