Selectmen Meet, Encumber Funds, Vote on Brown Road Lower Beech Pond Issue

The selectmen (Carolyn Sundquist, Bill Marcussen, Lloyd Wood) had a special meeting this morning at 10AM to encumber funds that had been appropriated for 2016 but not spent. Encumbering allows the funds to be spent in 2017 instead. Selectmen Wood voted “no” on the measure to encumber funds for new garage doors at the high department garage on Sodom Road. Other than that, the selectmen were unanimous in their other votes, including to encumber funds for storm windows at the Town House.

The selectmen also voted to authorize their attorney, Rick Sager, to investigate public access to Lower Beech Pond from Brown Road. In an August 25, 2016, email to Road Agent Jim Bean, which local resident Guy Pike acquired through a Right to Know request, Carolyn Sundquist wrote “I advised the Steinmans to go ahead with placing boulders in front of the access.” The Steinmans are Theodore and Carol Steinman, of Brown Road. After Sundquist advised the Steinmens to “go ahead with placing boulders,” they paid their contractor $3,500 to place boulders at the public access to Lower Beech Pond, which is a state pond stocked with fish by the New Hampshire Fish and Game department. Sundquist apparently did not consult with Sager before advising the Steinmans.

The Steinmans explained in a letter to Sundquist dated November 15, 2016, also pursuant to Pike’s Right to Know request, “In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a three foot wide opening at the head of the pond to allow small boats, canoes, kayaks, to be carried in. We complied with the direction of Jack Parsons to keep the rocks three feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.”

Unfortunately for the Steinmans, it appears that the rocks are within the town’s right of way. The question now is, should the Steinmans, who diligently sought the town’s advice before taking action, be held financially responsible for moving the rocks? According to an article on the concept of Municipal Estoppel at the New Hampshire Municipal Association’s web site, no. If the Steinmans can prove that they sought the advice of an “elected official or a municipal employee with actual authority to represent the municipality on the matter” who “makes a statement to a person which proves to be false” then “the municipality will be ‘estopped’ or ‘prevented’ from taking action to reach some other result with the person.”

In this case two elected officials, Selectmen Carolyn Sundquist and Road Agent Jim Bean, as well as a town employee, Jack Parsons, told the Steinmans it was OK to place the rocks where they are currently located, in the town’s right of way. Since the Steinmans relied, in good faith, on advice that turned out to be false, that means that the town will be “estopped” from requiring the Steinmans to move the rocks.

Carolyn Sundquist gave bad advice. Now the town has to pay Rick Sager $175 an hour in taxpayer money to tell her that it was bad advice. Then we might have to spend public money to move the rocks that are only where they are now due to Sundquist’s mistake.

The selectmen forgot to say the pledge of allegiance before this morning’s meeting (they are required by vote of Town Meeting to start each meeting with the pledge), so Guy Pike led a recitation of the pledge, joined by other members of the public, after the selectmen adjourned their meeting.

Public’s Right to Know Under Attack in New Hampshire

I’m getting sued by the Tuftonboro board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) because I made a document request through New Hampshire’s Right to Know law and the selectmen don’t want to comply with the law.

So they sued me!

Now I’ve had to hire an attorney to defend myself, along with my co-defendant, Bob McWhirter, who is also being sued because he made a lawful request to inspect records.

We’re asking for small contributions to help us defray the costs imposed on us by the selectmen’s abuse of power.

Please consider donating $5 at https://igg.me/at/zFnfBtqY90Q.

Judge Fauver Grants Motion to Continue

Carroll County Superior Court Judge Peter Fauver granted a motion to continue Friday, which Bob McWhirter and I requested through our attorney, delaying our court date to January 27, 2017. The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) will have to now wait to prosecute their abusive lawsuit against us.

212-2016-CV-201 Notice of Decision
212-2016-CV-201 Notice of Hearing

A Cold Sunday Morning Visit

When you have done nothing wrong and the government sends armed men to your door as part of an effort to stifle your rights, tyranny is not too strong a word.

The deputy’s name was Brian Argue, and he visited both my and Bob Mcwhirter’s homes to serve us with a lawsuit from the board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen). Despite his last name, Deputy Argue was very genial and truly professional. I have no argument with his conduct. Nevertheless, how would you like an officer of the law–no matter how polite–to show up on your door with a court order, just because you made a Right to Know request?

We made a lawful request to inspect governmental records (emails, in this case), and the selectmen responded by irresponsibly and abusively dragging us into court. All because the selectmen don’t want to abide by the Right to Know law.

Due to the selectmen’s lawsuit, we have had to hire an attorney: Jim Cowles of Walker & Varney, P.C., in Wolfeboro. We have received a tremendous amount of support from other residents in town, who have generously offered to help us defend ourselves — and defend the public’s Right to Know — in court. Some local residents are taking checks directly to our attorney (checks should be made out to “Walker & Varney, P.C.,” with “McWhirter/Ledoux” written on the check’s memo line). We have also set up a crowdfunding page at Indiegogo where people can contribute to the legal costs forced upon us by the selectmen.

The full cost of defending our right to inspect governmental records against the selectmen’s vindictive lawsuit could rise into the many thousands of dollars. And that’s not even counting our taxpayer money that is being spent on the selectmen’s attorney, Rick Sager, to persecute us.

If you are inclined, and if you are able, we would appreciate your support: https://www.generosity.com/fundraising/defend-public-s-right-to-know-in-new-hampshire/.

Union Leader Editorial on Right to Know Law: Update It

The Union Leader published an editorial this week calling for the legislature to update the Right to Know law for the digital age, while referencing the selectmen’s abusive lawsuit against Bob and me:

Tuftonboro selectmen are the latest municipal officials asking for citizens to reimburse taxpayers for the time and expense of preparing public records for inspection. State law clearly provides that citizens can inspect public documents free of charge, but can be charged for actual copying costs.

Resident Robert McWhirter wants access to 11,000 town emails. Selectmen say it will cost up to $12,800 to prepare the documents, redacting any confidential information. They are asking Carroll County Superior Court for permission to charge $.25 per page, potentially thousands of dollars.

The law needs to be rewritten for the digital age. State and local governments need to create and archive electronic records, including official email accounts, knowing that the public will read them.

– Read the full editorial at: http://www.unionleader.com/editorial/Update-the-law-Right-To-Know-in-the-information-age-12152016#sthash.OTqBsem5.dpuf

The only thing I would quibble with is the assertion by the selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) that it will cost up to $12,800 to comply  with the law. Please keep in mind that our taxes already pay the salaries of the town office staff. Replying to Right to Know requests is part of the “normal work schedule,” according to none other than Carolyn Sundquist. There is no added cost.

Carolyn Sundquist Instructed Administrative Assistant to Forward “Propaganda” to Elissa Paquette

A few days before Town Meeting was to be held this past March 9, 2016, Administrative Assistant Diane Falcey emailed Elissa Paquette of the Granite State News and CC’d Selectman Carolyn Sundquist, writing, “Elissa: I sent you the attached at the request of Selectman Sundquist.” (Emphasis added.)

The attached PDF was titled, “Tuftonboro Propaganda.pdf” and contained scanned images of ads urging residents to vote against the proposed 2016 town operating budget. Also on the scanned page is handwriting that reads, “Selectmen [–] circulating around town by B. McWhirter[.] C. Sarles.” Christie Sarles is the town librarian.

It’s not known whose handwriting this is

However, in an email to me this morning Christie wrote that the handwriting is not hers and she was not the one who titled the PDF “propaganda.” She did verify that the salary figures shown, at least for the library positions, “accurately reflect the decision to implement the Option 1 Pay Grade/Step Assignment proposal for the 2016 budget year.”

The ad showed that as librarian, Christie was to receive a $7,134.40 raise, and the assistant librarian, Dennis Guilmette, an $8,208.20 raise. These figures, as Christie confirmed, are accurate. You can see for yourself in the 2016 town personnel administration spreadsheet. (The fourth column from the left, titled “Year,” represents the amount of increase from 2015 to 2016.)

Stay tuned.

 

Community Christmas Service Well-Attended

The First Christian Church of Tuftonboro (across from the General Store on 109A) held its annual community Christmas service on Sunday evening. Around 75 people attended the service, which was led by Rev. Kent Schneider, who is the interim pastor of the First Congregational Church in Farmington, NH.

The congregants sang Christmas carols with the aid of Cecelia Ewing on keyboard, Patti Nisbet on flute, Betty Schneider on persuasion, and Jane Wilson on clarinet and recorder. Mike Lymburmer sang tenor. Natalie Hebden also played guitar and mandolin, as well as sang.

Rev. Schneider’s sermon was on patience. “What are you waiting for?” He asked. He said we live in a time when people expect instant gratification. But Mary, Joseph, and even Mary’s sister Elizabeth, were waiting, he said, and they were rewarded for their patience.

After the service, Tuftonboro residents stayed to mingle and talk with friends and neighbors.

The First Christian Church of Tuftonboro is 147 years old.

Union Leader Reports on Selectmen’s Retaliatory Lawsuit Against Tuftonboro Residents

The New Hampshire Union Leader:

Tuftonboro town selectmen are asking a judge if they can charge a fee to process a Right-to-Know request, after a two residents demanded access to town emails, one seeking access to an estimated 11,000 emails.

In a complaint filed last week in Carroll County Superior Court, selectmen said the emails have to be reviewed to make sure they contain no confidential information — telephone numbers, private email addresses, even unseen metadata — that they must withhold under the state Right-to-Know law.

A hearing date has been set for Dec. 21.

Selectmen estimated it could cost between $6,400 and $12,800 to comply with the larger request, made by Melvin Village resident Robert McWhirter. They want to charge a 25-cent fee for each page subject to review.

For the past several years, state and local officials have complained about the cost to comply with records requests. State law allows local and state government to charge fees to cover only the actual cost of copying a record, not the cost of retrieving it or blacking out confidential information.

– See more at: http://www.unionleader.com/local-government/Tuftonboro-selectmen-want-to-charge-a-fee-to-fill-Right-to-Know-requests-12132016#sthash.UUeLMPmI.dpuf

Looks like Richard Sager, the selectmen’s attorney, didn’t need to ask the Court to clarify the law. All he needed to do was ask the Union Leader!

 

Selectmen Retaliate for Right to Know Requests — File Legal Action Against Tuftonboro Residents

In an effort to squelch the public’s right to know, the Tuftonboro selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) have had their attorney, Rick Sager, file a legal complaint in Carroll County Superior Court against me and against Bob McWhirter, for exercising our right to inspect governmental records. Both of us were visited on Sunday morning by a Carroll County Sheriff’s deputy who served us with the court documents. We must now appear before the court on December 21, 2016.

To briefly summarize: I have made a request, through New Hampshire’s Right to Know law (RSA 91-A), to inspect emails between the town and the local newspaper, the Granite State News.

Karen Koch, the administrative secretary, has informed me that there are 18 emails, consisting of 25 pages in all, that meet my request but that these pages contain what the town deems to be sensitive or confidential information. The selectmen say that they must make redactions to these emails before I may be allowed to inspect them. Why would it be legally or ethically permissible for the selectmen to exchange sensitive information with the newspaper that they then claim they cannot share with a member of the public? (I have asked, but the selectmen have provided no answer.)

The law unequivocally states in RSA 91-A:4 III states:

Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place.

An email that cannot be inspected because it contains confidential or sensitive information cannot be said to be “accessible” to the public. By redacting portions of an email, then, the selectmen would simply be making the email accessible, as required by law.

RSA 91-A:4 IV is just as straightforward on the question of fees charged to the public:

No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

I have requested to inspect the records (emails). The law does not allow the selectmen to charge me for inspecting the records.
The selectmen claim that because they are going to redact parts of the emails, they can charge me $.25 per page. That is not allowed by law.

Rather than follow the law, the selectmen are spending taxpayer money to pay their attorney to retaliate against private citizens, in an effort to keep the public from exercising its right to know. Almost exactly a year ago, the Carroll County Superior Court ruled that the selectmen violated the right-to-know law. Why aren’t the selectmen working to increase transparency and accountability? Why don’t they welcome public input and oversight? Sadly, they appear to be doing their best to keep public records out of reach of the public.

Selectmen Seek to Illegally Charge Resident Thousands of Dollars to Inspect Governmental Records

In clear violation of the Right to Know law (RSA 91-A), the selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) are attempting to charge a Tuftonboro resident more than $2,750 to inspect governmental records.

I have made a Right to Know request for emails between the selectmen and the Granite State News. The administrative secretary, Karen Koch, has told me that there are 18 emails, or 25 pages, that meet my request. The selectmen are attempting to charge me $.25 per page, or $6.50, to inspect these records (emails), in clear violation of the law.

In an email to me on December 5, Richard Sager, the selectmen’s attorney, stated that the selectmen were seeking to charge me $6.50 for the 18 emails in order to set a precedent so that the selectmen can later charge Bob McWhirter for a separate, unrelated request that he also made through the Right to Know Law.

Sager wrote:

If this issue were only about a total charge of $6.50 for the requested Salmon Press/Elissa Paquette emails, I would pay for it myself just to be able to move onto something else. However, with the current pending request for approximately 11,000 emails, the Town and I are very guarded against setting any sort of precedent.

At $.25 per email, that would cost Bob McWhirter more than $2,750 (11,000 emails would be more than 11,000 pages, since many emails are multiple pages).

The law unequivocally states in RSA 91-A:4 IV:

No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

The selectmen are claiming that because they must redact “sensitive” information from the emails, they must print out each email and use a heavy marker to obscure portions of the emails; then they claim they must take the additional step of photocopying the pages to ensure that the redaction is not see-through. This, they claim, represents a change in “format,” and therefore they can charge the public for inspecting these records.

The selectmen are mistaken. There is no provision in the law that allows a governmental body or agency to charge a fee for changing the format of a governmental record. Furthermore, even if there was such a provision, what the selectmen are doing by redacting sensitive information is merely making the governmental records available for inspection.

RSA 91-A:4 III states:

Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the governmental records pertaining to such public body or agency shall be kept in an office of the political subdivision in which such public body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.

And RSA 91-A:4 III-A states:

Governmental records created or maintained in electronic form shall be kept and maintained for the same retention or archival periods as their paper counterparts. Governmental records in electronic form kept and maintained beyond the applicable retention or archival period shall remain accessible and available in accordance with RSA 91-A:4, III. Methods that may be used to keep and maintain governmental records in electronic form may include, but are not limited to, copying to microfilm or paper or to durable electronic media using standard or common file formats.

While RSA 91-A:4 V states:

…any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1.

An email that cannot be disclosed unless a member of the public pays a fee, in some cases amounting to thousands or even tens of thousands of dollars, is not accessible to the public for inspection. Governmental bodies and agencies must maintain governmental records in a manner that is accessible to the public. A governmental body or agency may not charge a fee for the inspection of a governmental record.

The law is not on the side of the selectmen. They should cease their unlawful obstruction of the public’s right to know.