Court Date Rescheduled in Selectmen’s Lawsuit Against Town Residents

Judge Ignatius of Carroll County Superior Court has granted a Motion to Continue filed by Rick Sager. The hearing in Town of Tuftonboro v. Maxim A.A.L. Blowen-Ledoux and Robert McWhirter has been rescheduled to February 22, 2017, at 1PM. It will be a two-hour hearing.

The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) are suing me and fellow Tuftonboro resident Bob McWhirter. Both Bob and I have separately asked to inspect governmental records. The reason for the lawsuit is that the selectmen don’t want to follow the Right to Know law (RSA 91-A). The law states unequivocally, “no fee shall be charged for the inspection or delivery, without copying, of governmental records.”

The selectmen want to charge us fees to inspect the governmental records.  In Bob’s case the fees might run to more than $2,750! So they’ve asked the Superior Court to legislate from the bench to allow them to charge an illegal fee to all citizens seeking to inspect government records.

Sager filed the Motion after Bob and I filed our official response to the selectmen’s lawsuit.

Our response is almost 5,000 words and contains numerous counter-allegations against the selectmen, including this:

45. By way of further example, Defendant Blowen-Ledoux’s November 3, 2016, RSA 91-A request included emails to or from former selectmen Daniel Duffy. However, on November 7, 2016, the Selectmen’s Administrative [Secretary] informed Defendant Blowen-Ledoux that Duffy’s official “@tuftonboro.org” email account had been deleted when his term of office expired in March, 2016. Therefore, none of the emails he had sent or received while in office can be produced.

46. If the intentional deletion of all email to and from a Selectmen that only recently completed their term in office is not a direct violation of RSA 91-A, then it certainly violates the spirit of the law. See eg., James M. Knight v. School Administrative Unit #16, et al., Docket No. 00-E-307 (Rockingham Superior Court) (2001) (Abramson, J.) (respondents held in contempt after intentionally deleting requested files, and misleading the Court into believing that the files still existed at the time of trial, and were ordered to pay attorney’s fees, costs and to bear the costs of production for the remaining records.)

We also request that the Court:

  1. Deny the Town’s Complaint
  2. Compel the selectmen to produce the electronic governmental records that we have requested, without charging us an illegal fee
  3. Order the selectmen to pay, personally, our attorney’s fees
  4. Order the selectmen to undergo, at their own cost and expense, remedial training on the Right to Know law

 

NH Fish & Game Confirms Lower Beech Pond Not Stocked with Fish in 2016

In an email recently, Glenn Normandeau, Executive Director of the NH Fish & Game Department, confirmed what many Tuftonboro residents are already aware of: The department did not stock Lower Beech Pond with fish in 2016.

For more information on Lower Beech Pond, read: Selectmen Vote on Brown Road Lower Beech Pond Issue.

Grunter Editorial Contains False Information

Tom Beeler published an editorial in the Granite State News today that contains several falsehoods and misrepresentations.

‘The Grunter’ • Est. 1859

FRANK CHILINSKI, Publisher THOMAS BEELER, Editor

Editorials, while unsigned, represent a consensus of the views of the editorial board of the Granite State News

Toxic Tuftonboro indeed!

This week we publish an Other Voices commentary on this page from Tuftonboro’s Barry Ennis. As he does fairly regularly in his letters, Ennis comes close to unacceptable disrespect in his criticisms, but we publish this letter to allow our readers to see how far the attack on trust in government has gone in Tuftonboro.

Please read his remarks and then continue here.

Mr. Ennis seems to have joined the small group of Tuftonboro residents who have committed themselves to find something – anything – they can use to foment distrust of the board of selectmen. They have sued the town, accusing the selectmen of violating the right-to-know law, RSA 91-A, as it applies to meetings. The result? The court found one technical error in posting a meeting and an error in judgment when the selectmen allowed a department head who was being reviewed in nonpublic session to bring up and discuss his budget, a subject that should only be discussed in a public meeting.

Carroll County Superior Court ruled that the Tuftonboro selectmen had violated the Right to Know law.

It was not brought to the judge’s attention that selectmen made that budget a topic at the next regular meeting.

That is irrelevant and has no bearing on whether the selectmen violated the Right to Know law. They did.

They have tried to portray the current selectmen as exercising control over cemetery maintenance and denying the cemetery trustees the right to manage it.

Because the selectmen overstepped their statutory authority and exerted control over the cemeteries illegally.

It turns out that years ago – long before the current board members lived in town, and likely even before the law relating to the duties of cemetery trustees was written – that all town grounds maintenance was done by one contractor as a matter of convenience.

That is irrelevant to whether or not it was illegal for them to make decisions about the cemeteries.

When the subject was raised, selectmen promptly turned the maintenance of cemeteries over to the trustees.

Actually, cemetery trust fund chairman Sue Weeks informed them they lacked the statutory authority to make payments for work done in the cemetery. They ignored her and went ahead and made payments they weren’t authorized to make.

They have made an issue of being denied the right to speak at meetings, when anyone can ask to be placed on the agenda to discuss anything.

Carolyn Sundquist has refused to put me on the agenda when she did not want to hear what I wanted to say about automatic employee raises.

They have asserted a right to ask questions and make comments at any time rather than at the end of the meeting.

This is a mischaracterization of what happened. The selectmen were engaging in unconstitutional viewpoint discrimination by allow Elissa Paquette to ask questions at any point during the meeting, but refusing to take questions from anyone else.

They have insisted that the board hold evening meetings and promised a petition warrant article requiring them to do so.

I asked the selectmen three times to please have at least one meeting per month in the evening so that more people could attend if they wanted to attend. The selectmen refused, stated they preferred having meetings during the day. I will be submitting a petition warrant article requiring them to have evening meetings, but only because they refused to hold at least one meeting — not all — in the evening.

They have requested thousands of e-mails, clearly trying to find some misbehavior they can pillory.

Tom Beeler has no idea what Bob McWhirter is looking for, because Tom Beeler has never asked Bob.

They belittle the fact that someone has to do their bidding, implying that town employees have nothing better to do.

I have no idea what this refers to.

They also dismiss the right to privacy of those sending e-mails and want their fellow taxpayers to pay for their fishing expedition as a matter of right.

Emails are government records. The readers of the Granite State News might be more aware of this fact if Beeler had published the letter I wrote to the editor on the subject, but he declined to print it. Furthermore, the law is extremely clear that the selectmen may not charge people a fee to inspect government records.

That issue has now been taken to Superior Court, where the town is seeking guidance on how it should handle these requests.

The selectmen have sued Bob McWhirter and me, using the power of local government to punish us for having the audacity to exercise our rights.

Now they are trying to make an issue about a property owner blocking access to a road.

Ennis does not go to selectmen’s meetings

Perhaps because he works and the meetings are during the day?

and there is reason to doubt he has even viewed the videos of those meetings available at the library.

What reason would that be? Has Beeler viewed Ennis’s library record to see what items he has checked out?

The issue he raises has been discussed (by our count) five times in open meetings, beginning with the July 25 meeting.

Beeler does not attend the selectmen’s meetings, so he may not be aware that what Sundquist said during public meetings is different from what she was communicating in private to the property owners.

The board as a whole – not Chairman Carolyn Sundquist alone – has taken seriously the issue of blocked access and has gradually escalated its response to the point where, as we report in this issue, they have asked Town Counsel Rick Sager to determine who controls the right-of-way at issue and what actions the town can take.

Perhaps they should have done that before Carolyn Sundquist advised the property owners to “go ahead with placing boulders in the access.”

This is not the secret conspiracy Ennis wants to accuse Sundquist of perpetrating. He should not take the misinformation someone is feeding him as truth.

Someone is being fed misinformation — the readers of the Granite State News.

The people involved in these actions have failed repeatedly to demonstrate lack of openness in town government or even a refusal to respond to questions and requests.

Does this look like “a refusal to respond to questions and requests”? How’s that for “openness in town government”?

To us, the selectmen are trying to do the job they were elected to do, conscientiously and openly.

The intention seems to be to sow distrust of Tuftonboro selectmen in general and Selectman Sundquist in particular.

Why this misguided effort? What is behind the open animosity (evident in Ennis’s letter) with which it is pursued?

The selectmen’s antipathy toward public oversight is what’s behind the distrust.

Clearly there are personal grudges involved – one member of the group has at least three – but getting even cannot be everyone’s motivation. What is it?

I have no idea who Beeler’s referring to.

To us this all started when the selectmen openly supported the library trustees’ third effort to get a new library built and used library reserve funds to have conceptual plans done to present to voters. Yet it’s hard to believe that successful opposition to a new library is driving this effort to make mountains out of molehills.

We think it is time for residents to say “Enough is enough!” and show their support for the selectmen and their town.

In fact, some residents are saying “Enough is enough!” And the Granite State News is doing its best to malign those residents.

Candidate Filing Period January 25 – February 3

TOWN OF TUFTONBORO PUBLIC NOTICE

Pursuant to RSA 669:19, all Candidates for Town Office must file a Declaration of Candidacy with the Town Clerk during the filing period, which will begin January 25, 2017 at 9:00 AM and end on February 3, 2017 at 5:00 PM.

Declaration of Candidacy will be received for the following Town Offices:

Selectman for Three Years Town Clerk for Three Years

Tax Collector for Three Years
Road Agent for Three Years Budget Committee for Three Years (2) Trustee of the Trust Funds for Three Years Cemetery Trustee for Three Years Library Trustee for Three Years

The Town Clerk’s Office is open to receive filings:

Mondays & Fridays – 9:00 AM to 4:00 PM Tuesdays – 6:00 PM to 8:00 PM Wednesdays – 9:00 AM to 6:00 PM

Last Saturday of the month (1/28/17) – 9:00 AM to 11:00 AM

The office will remain open on February 3rd until 5:00 PM.

Heather Cubeddu, Town Clerk Town of Tuftonboro

Tri-CAP’s Federal Lawsuit Against Former Auditor Over Financial Mismanagement

Tri-County Community Action Program, a 501(c)(3) non-profit organization asking the town of Tuftonboro to give it $5,000 in 2017, was in federal court Friday. The organization filed a lawsuit in December, 2015, against a former auditor. Tri-CAP has a budget of more than $20,000,000 and alleges that its auditor from 2008-2011, Ron L. Beaulieu & Co., of Portland, ME, failed to alert the board of directors of Tri-CAP that the organization’s finances were in shambles, in what other auditors have characterized as “inappropriate and perhaps illegal,” according to the New Hampshire Union Leader.

In particular, Tri-County CAP officials were taking money from a flush, fuel assistance account to prop up a dental medicine benefit for low-income clients that was running way over budget.

“The defendant during his years of audits found no deficiencies, and reported no concerns to TCCAP’s Board of Directors,” the suit said.

Once the state director of charitable trusts learned of the charity’s financial problems, he named a special trustee in January 2013 and dismissed Beaulieu as the auditor and retained Mason & Rich of Concord.

The new auditors found “substantial financial difficulties,” ordered the 2012 audit be modified and said in a report that the problems were “long-standing, multi-year problems and were so dire as to question whether TCCAP could continue to provide services as a going concern.”

Due to Tri-CAP’s financial mismanagement, the New Hampshire legislature stepped in and provided the organization with a $1,000,000 bailout and a $300,000 line of credit. Tri-CAP later settled with the state for $700,000.

You can view the Tri-County Community Action Program request package that was sent to the Tuftonboro selectmen.

Those who are interested in donating their own money to Tri-County Community Action Program can do say at their web site. Those who want to donate other people’s money to Tri-CAP don’t have to take any action. The selectmen will already be redistributing the town’s tax money to Tri-CAP and other 501(c)(3) organizations that the selectmen support.

Emails Are Governmental Records

Tom Beeler, the editor of the Granite State News, added an “editor’s note” to a letter he printed two weeks ago from Molly Powell (my wife). He wrote: “What is being requested is not ‘a record’ or ‘a document’ but every email sent or received by the town—an estimated 11,000—some of which contain very private information that no one gave permission for just anyone to see.”

RSA 91-A:1-a III defines “governmental records” as “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.” This includes “any written communication or other information, whether in paper, electronic, or other physical form.”

And RSA 91-A:1-a IV defines “information” as “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.”

That an email is a government record is not in question.

The City of Manchester, for instance, includes the following 91-A disclaimer in every email sent from the @manchesternh.gov domain: “The Right-To-Know Law (RSA 91-A) provides that most e-mail communications, to or from City employees and City volunteers regarding the business of the City of Manchester, are government records available to the public upon request. Therefore, this email communication may be subject to public disclosure.”

Indeed, the New Hampshire Secretary of State made a Right to Know request last month to the City of Manchester for all communications about a pilot program for electronic poll books. Essentially, the Secretary of State is requesting 18 months’ worth of emails. That is far more than Bob McWhirter has requested. The selectmen estimate that 11,000 emails would be responsive to Bob’s request, but this estimation has not been in any way substantiated. Bob refined his original request, however, drastically reducing the number of emails that would be responsive—11,000 was an estimate that is no longer relevant.

Tom thinks it matters whether the records contain “very private information that no one gave permission for just anyone to see.”

In Mans v. Lebanon School Board, the New Hampshire Supreme Court ruled that concern for “invasion of privacy” should not be so broadly interpreted as to defeat the purpose of the right-to-know statue. Furthermore, the Supreme Court has ruled repeatedly that “whether information is ‘confidential’ must be determined objectively, and not based on the subjective expectations of the party generating it.” (See Lamy v. N.H. Publ Util. Comm’n, among other cases.)

But Bob and I are not disputing whether certain parts of the emails we have requested will be redacted. The issue is that the selectmen are attempting to illegally charge us a fee to do the redaction. However, there is nothing in the statute that allows the government to charge a fee for the labor of responding to a Right to Know request. As Tuftonboro Selectman Carolyn Sundquist herself stated on October 17 in a Selectmen’s meeting and on November 1 in a Budget Committee meeting, we already pay the staff’s salary, and responding to Right to Know requests is part of their “normal work schedule.” That’s a direct quote from Carolyn, on November 1 (the video starts at 58:52, Carolyn’s comment is at 1:00:20):

Thank you to everyone who has very generously contributed to our legal defense fund. Through the kindness of fellow citizens, we have raised $2,215 so far to fight the selectmen’s lawsuit against us. The hearing is on January 27 at 9 AM at Carroll County Superior Court in Ossipee.

Per Employee Health Benefits Costs

The selectmen (Carolyn Sundquist, Bill Marcussen, Lloyd Wood) have refused this year to disclose how much will be spent per employee in 2017 for health benefits. The town’s health insurance provider is Interlocal Trust.

The budget committee voted 4-3 on December 6, 2016, for the personnel administration budget without knowing whether the budget line item of $315,622 for health benefits was accurate or not. Carla Lootens, Helen Hartshorn, Bob Theve, and Carolyn Sundquist voted in favor, while Steve Brinser, Tyler Philips, and John Libby voted against.

Continue reading “Per Employee Health Benefits Costs”

Fear of Milfoil Was a Factor in Blocking Public Access to Lower Beech Pond

Photo Credit: Chris Sawyer
Photo Credit: Chris Sawyer

Mark Evitts, president of the Hidden Valley Property Owners Association, and David Smith, a board member of the same association, worked closely with Tuftonboro Board of Selectmen Chair Carolyn Sundquist over the summer and fall to place a “stone wall,” as Evitts characterized it, along Brown Road to block vehicles with boat trailers from accessing Lower Beech Pond.

Emails from Evitts and Smith, which are public records as defined by RSA 91-A (the Right to Know law), as well as correspondence between the selectmen and Ted and Carol Steinman, were obtained through a Right to Know request made by Tuftonboro resident Guy Pike last month.

Smith wrote to Sundquist on August 3 that, “The longer this takes the longer the threat of milfoil infestation continues.”

Evitts made the concern more explicit on September 5 when he wrote to Sundquist:

As you probably know by now, we have installed a stone wall along the Steinman’s property at the head of Lower Beech Pond. The goals of the project were two fold:

  1. To keep boat trailers and large boats from backing down into the pond and to thereby reduce the threat of exotic weed introduction into the pond;
  2. To keep trucks and cars off the road shoulder/pond bank to limit further compression of the soil and to stop/limit erosion/road water runoff.

I’d appreciate it if you would focus on the second goal when discussing this at your public meetings. I may be overreacting, but I fear a disgruntled person might purposely introduce milfoil into Lower Beech Pond. Thus, if we don’t emphasize this goal in public no one will get any bad ideas.

Sundquist told Smith in an email on August 3, “At this point the water access could be blocked by boulders but the side of the road should not be blocked.”

However, on August 25, Sundquest emailed Road Agent Jim Bean, “I advised the Steinmans to go ahead with placing boulders in front of the access.”

It’s not clear whether Sundquist advised the Steinmans in person, over the phone, or by email. Pike said his Right to Know request was for “any and all communications” to or from town elected officials or employees on the subject of access to Lower Beech Pond. The selectmen did include in their response to Pike a two-page email that has been completely redacted other than Sundquist’s email signature. The selectmen did not give Pike any explanation why the two pages were redacted, so it’s impossible currently to determine if the redacted email might be from Sundquist to the Steinmans advising them to “go ahead with placing boulders in front of the access.”

According to the attorney general’s memorandum on the Right to Know law:

The public body must have a basis for invoking the exemption and may not simply mark a document “confidential” in an attempt to circumvent disclosure.

In addition, the attorney general further states:

The governmental entity should retain a copy of both the redacted and un-redacted record. The governmental entity producing the record should also include an explanation of why certain information has been redacted or removed from the record. For example, if a record contains both public information and confidential medical information that has been redacted, the person requesting the record should be informed that the record has been redacted to prevent disclosure of confidential medical information. It is helpful to cite the applicable section of the Right-to-Know law or the other legal authority which exempts the information from disclosure. The person seeking the governmental record can then easily independently assess the appropriateness of the redaction.

After Sundquist advised the Steinmans to “go ahead with placing boulders in front of the access,” they did just that, as Evitts wrote in his September 5 email.

However, the “stone wall,” as Evitts described it, is within the town’s right of way, according to a letter the selectmen sent to Ted and Carol Steinman on October 17.

The Selectmen have reviewed the issue of the very large rocks placed in the Town’s right-of-way on Brown Road. The placement of the rocks was not authorized by the Board of Selectmen. In your discussion with Board Chair Carolyn Sundquist and Code Officer Jack Parsons, it seems there was a misunderstanding of what was allowed at the time. Chairman Sundquist advised that you would only be able to close off the access to Lower Beech Pond with a couple of large rocks. She also mentioned the possibility of a No Parking sign, but never authorized blocking off the right-of-way. Chairman Sundquist apologizes that she may not have been specific enough in what was allowed.

The selectmen then requested that the Steinmans “move the boulders from the right-of-way to your property line as soon as possible.”

The Steinmans replied in a letter to Sundquist on November 15:

In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a 3-foot wide opening at the head of the pong to allow small boats, canoes, kayaks to be carried in. We complied with the direction of Jack Parsons to keep the rocks 3-feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro’s Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.

We have tried to be good citizens and we have worked with the town in good faith to develop a plan to address the erosion problem. A group of us banded together this summer to personally fund the rock warrior, which we view as a first step in this Erosion Control Project. We spent approximately $3,500 on the project, so I’m sure you can understand our dismay when we received your request to remove the rocks. Again, our objective is simply to protect the lake and by extension the surrounding property values while enabling all to access the pond through our property.