Legislation advances in response to secret city land deals

LACONIA — The City Council excluded the public from portions of its last two meetings so it could consider “the acquisition, sale or lease of a real or personal property.”

Over the last two years, councilors agreed in such non-public sessions to spend more than $1.4 million of the public’s money on church property, land near a pond and a lot close to a city facility.

Are they getting ready to obligate more of the public’s money in private?

In answer to emailed questions, City Manager Scott Myers quoted a portion of the state’s Right to Know Law stating non-public meetings are allowed to discuss property sales and leases if such discussions “would likely benefit a party or parties whose interests are adverse to those of the general community.”

This provision is intended to prevent a bidding war should the city’s interest in a piece of property become known, but open government advocates say the public deserves an opportunity to give input into how its money is spent.

Myers said the city is “not currently in negotiations regarding the purchase of land” and that the city has not bought any since spending more than $1 million last year on the Busiel Building and the former Holy Trinity School building, the latter to provide more downtown parking. Bond money for the deal was listed in the city’s budget only as “XYZ” so people would not know its true purpose. Councilors informed the public months after they green-lighted the deal.

The city has an agreement to sell the Busiel Building that they acquired in that closed-door deal with the Diocese of Manchester.

Other New Hampshire municipalities are more open about land purchases. The cities of Franklin and Concord decide on land purchases in public. Officials in Plymouth and Tilton say they do such purchases in public through the Town Meeting process.

Bills now advancing in the New Hampshire Legislature are intended to bring more transparency to local government operations.

State representatives arguing against some of this legislation say the actions of Laconia public officials are so unusual as to be a poor example of the need for a change. Proponents say changes are needed lest other cities follow Laconia’s example.

“I'm not saying it occurred only in Laconia,” said New Hampshire Right to Know President David Saad. “There may be other examples, but more importantly, once you have even one example, that is too many. Where there has been a lack of transparency, to me there is no excuse for it that I can come up with that is justified.

“You have this situation, where they just wanted to keep it hushed up and didn’t want people to know.”

A trio of bills have cleared the House Judiciary Committee and await further legislative action.

Rep. Gregg Hough, R-Laconia, is sponsoring House Bill 232, which would require city councils to hold a public session for general discussion about buying property or proceeding with an acquisition. Price discussions could be held in private.

House Bill 566, sponsored by Josh Yokela, R-Rockingham, states that if boards hold non-public sessions to discuss land purchases or leases, the minutes for this session should be unsealed for public disclosure after the sale has gone through or the lease has been signed.

Boards would have to keep a public list of sealed minutes and note when they are unsealed under House Bill 108, sponsored by Rep. Jordan Ulery, R-Hillsborough.

Saad said that under the present system, once minutes are sealed, they may never be unsealed, or it’s not obvious to the public when they have been unsealed.

“The circumstances which support the sealing of minutes at one point in time, will, as time passes, eventually no longer apply,” he said. “So how does a public body follow the letter of the law and determine when the circumstances no longer apply?

“In practice, many public bodies do not follow the letter of law. In most cases, actual sealing of minutes is done indefinitely because there is no easy way for public bodies to know which minutes have been sealed and for what reasons.”

He noted that even at the federal level, some information, once regarded as secret, eventually gets released.

Holding non-public sessions and sealing minutes varies from jurisdiction to jurisdiction.

The Laconia City Council typically seals its non-public minutes. Minutes from the last two sessions were sealed for six months.

At the March 10 meeting of the Gilford Board of Selectmen, a portion of the minutes for a non-public session was sealed and another portion — having to do with the town’s pay scale — was not sealed.

Minutes for non-public sessions are often not very revealing.

On Nov. 2, the Meredith Select Board went into a non-public session. Minutes for the session say, “A discussion was held on matters which discussed in public would adversely affect the reputation of others. No votes were taken.”

Saad said his group supports efforts to make minutes more detailed. Currently, they are basically required to include the names of those present, a brief description of the subject matter discussed and final decisions.

In Laconia, Councilor Bruce Cheney acknowledged instances where there should have been greater transparency involving land purchases.

In 2018, the city’s Conservation Commission approved in a non-public session the $250,000 purchase of land near Pickerel Pond. The City Council approved that action, also in a non-public session.

The public was first notified of the purchase by a Laconia Daily Sun story based on a public records request. Former Mayor Tom Tardif complained to the New Hampshire Attorney General’s office, and an attorney for the city later acknowledged in a letter to that office that the commission should have held a public hearing.

Two years after the secret decision to buy the land and well after the deal had gone through, a public hearing was held, which Planning Director Dean Trefethen said was like “closing the barn door after the horse had left.”

Cheney said the failure to notify the public even after the pond land was purchased shocked some councilors.

“I don’t think anyone intended to keep those purchases from the public, but we learned our lesson,” Cheney said. “I think you’ll see an effort on the part of the manager and mayor to make these discussions public at the appropriate time.

“But we have to be careful not to throw the baby out with the bathwater. There are times confidentiality is important, but as soon as a final decision is made, we should make that public.”

As for the purchase of the church parcels, Cheney said the city had to be sensitive to the desires of the seller.

“This was a case where we were trying to accommodate the church, the diocese and the priest,” he said. “Maybe we should have moved more quickly, but it was not some intentional thing.”

For his part, Myers, who negotiated the church deal, wasn’t specific on whether the next City Council land purchase would be done in public or behind closed doors.

“The City would review the specific circumstances of each situation and make a determination as to the best approach with the options available to us under State law.”

Media organizations across the country are now participating in Sunshine Week, a national initiative to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy.