Supreme Court dismisses complaint filed against Ashland selectmen

ASHLAND — The state Supreme Court has upheld a lower court’s decision to dismiss a three-year-old complaint against members of the Ashland Board of Selectmen, but differed on some points with the superior court’s findings. One of the Supreme Court justices also disagreed with the majority’s interpretation of the Right-To-Know law in connection with the case.

Former Selectman Tejasinha Sivalingam, now a candidate for United States Senate, had filed a complaint against Frances Newton, Leigh Sharps, and the Ashland Board of Selectmen, seeking to have the two women removed from the board for what he alleged was a violation of RSA 91-A. The town argued that it had followed the law and sought to have the case dismissed and get compensated for attorney’s fees incurred in its defense.

Sivalingam had resigned as selectman on Jan. 7, 2018, nine months into his first term in the position, following a contentious period in which he clashed with Newton, the chair, and Sharps over procedural matters and what he described as ongoing harassment, bullying, and other discriminatory treatment because of his religious beliefs and practices. Sivalingam is a practicing Hindu who wears his hair and beard long, with holy ash on his forehead and a rudraksha around his neck.

One incident that stuck with him occurred on Aug. 21, 2017, when Sharps jokingly suggested that the police chief test his Taser on Sivalingam. “I don’t think that’s appropriate,” he responded at the time.

On May 12, 2018, after leaving the board, Sivalingam filed a citizen’s complaint about Newton’s and Sharps’ “derision” toward him, asking them to make a public apology for their actions. According to his court filing, the selectmen first refused to accept or discuss his complaint, but on June 4, 2018, they entered a nonpublic session, citing the provision of RSA 91-A that excludes the public when the discussion “would likely affect adversely the reputation of any person, other than a member of the public body itself.” However, they did not notify Sivalingam that he would be the subject of the discussion.

As the subsequent release of those minutes revealed, they discussed Sivalingam’s complaint, with Newton saying that a strong disagreement does not warrant a public apology. Newton went on to say the selectmen would no longer address criticisms of the selectmen in public.

Although the selectmen sealed the minutes of that nonpublic session, when they returned to open session, the town administrator discussed Sivalingam’s letter of complaint and the town attorney’s opinion regarding the matter. Subsequently, on Aug. 6, 2018, they unsealed the June 4 nonpublic minutes.

In filing his lawsuit on Nov. 9, 2018, Sivalingam held that “between the information divulged and the sequence of events, the purpose of the non-public session and sealing the minutes evaporated, allowing Tejasinha’s reputation to be negatively impacted.” He said his relationships with colleagues and friends fell apart and he was further ostracized from the community.

Superior Court

In response to the lawsuit, attorneys for the defendants asserted that the selectmen had no legal obligation to notify Sivalingam of the nonpublic session in which they discussed the citizen complaint forms, noting that it was “to discuss the citizen inquiry process generally” and his complaint “was brought up as an example of how citizen inquiries were being used by the townspeople.”

The town further argued, “Defendants … deny that anything sensitive discussed in non-public session about the citizen inquiry process or Plaintiff was announced in public session. Defendants further deny that anything said in public session would constitute an invasion of privacy or would adversely affect the reputation of Plaintiff.”

They asked for dismissal of the case on the grounds that Sivalingam “failed to state a claim” as well as asking for a summary judgment that would dismiss the case against them. Superior Court Judge Lawrence MacLeod Jr. agreed that the selectmen acted properly and granted summary judgment in their favor, but denied their request regarding failure to state a claim, as well as their request for attorneys’ fees.

Sivalingam appealed the case to the state Supreme Court.

Supreme Court

In reviewing the lower court’s rulings, the Supreme Court first focused on the question of whether the selectmen divulged information that would adversely affect Sivalingam’s reputation.

“By reading the plaintiff’s Citizen Inquiry, the Board merely revealed that he took issue with the Selectwomen’s treatment of him and voiced his grievance to the Board. We conclude that disclosure of this information is insufficient, as a matter of law, to be harmful or unfavorable to a person’s reputation,” the justices wrote. “Furthermore, that the Board sought, received, and publicly disclosed the town counsel’s advice regarding the plaintiff’s Citizen Inquiry demonstrates that the Board took the plaintiff’s concerns seriously and sought to appropriately and adequately address them.”

The court found that the town failed to show the need for attorneys’ fees, saying that the grounds for such a finding would be if the party acted in bad faith and awarding fees would “do justice, vindicate rights, and discourage frivolous lawsuits.”

The decision noted that the selectwomen “allege that the plaintiff sought to remove them from office through the electoral process, singled them out for litigation without bringing suit against the other Board members who were involved with the June 4 disclosure, and engaged in ‘substantial discovery,’ including ‘lengthy interrogatories,’ ‘extensive’ document production requests, and ‘protracted depositions.’”

Noting that Judge MacLeod had found “[a]ll of the parties have litigated this case vigorously,” the court ruled, “[W]e cannot conclude that the trial court acted unreasonably by denying the Selectwomen attorney’s fees under the bad faith litigation theory.”

The court added, “We observe that the plaintiff did not sue the town administrator or any of the other three Board members who were present at the meetings with which the plaintiff takes issue and on which his action is based. Although bringing suit solely against the two Selectwomen suggests that animus may have motivated his litigation, our prior cases make clear that ‘[a] plaintiff’s motive in bringing an action … does not determine whether an action is frivolous’ and that simply ‘bear[ing] the opposition ill will’ provides an insufficient basis upon which to award fees against a party.”

Right To Know

The Supreme Court justices were divided on the issue of whether the board should have notified Sivalingam of the nonpublic session in which they discussed his complaint. Senior Associate Justice Gary Hicks and Justice James Bassett sided with the selectmen, arguing that the language of RSA 91-A:3, II(c) did not require notification.

The section of the statute the selectmen cited in entering nonpublic session on June 4 was to consider or act upon “[m]atters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting.”

The majority found that, although an earlier Supreme Court case, Johnson v. Nash, ruled that a public employee must be notified if a body intended to discuss his/her dismissal, promotion, or compensation, that decision involved a “specific and narrow ‘legislative concern for protecting the public employee from improper official conduct by compelling the government to make public the considerations on which its actions are based.’”

“We do not perceive a similar specific legislative concern underlying” RSA 91-A:3, II(c), they wrote. “Nor do we believe that this court (or the legislature, for that matter) ever intended to impliedly confer such an expansive right to notice upon an even broader category of citizens …. Should the legislature disagree with our interpretation of RSA 91-A:3, II(c), it is, of course, ‘free, subject to constitutional limitations, to amend the statute.’”

Justice Anna Barbara Hantz Marconi dissented from the majority ruling, noting that “The Right-to-Know Law’s purpose ‘is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.’”

The exceptions that allow nonpublic meetings, she wrote, are intended to restrict a public body’s ability to meet in nonpublic session and the specific exception cited states the body cannot meet in nonpublic session if the affected person asks for an open meeting.

“Under paragraph II(c), the preservation of a person’s reputational interest is the sole justification for a public body entering nonpublic session,” she said. “Where the affected person would rather the discussion remain open to the public, that justification evaporates and the public body is no longer entitled to meet outside of public view.”

Because Sivalingam’s complaint “suggests that he would have requested an open meeting had he known that the Board intended to enter nonpublic session … the Board’s discussion during the June 4 nonpublic session appears to have been unjustifiably concealed from public view. … Additionally, if the majority’s reading of RSA 91-A:3, II(c) is correct, the legislature’s addition of “unless such person requests an open meeting” is meaningless. The practical consequence of the majority’s decision is that an individual will likely never have the opportunity to request an open meeting,” absent some sort of notice.