Pandemonium at Planning Board as Selectmen Sack Sawyer

Chris Sawyer is scheduled to meet with the selectmen today, likely to discuss why they removed her from the planning board earlier this month. Chris was the chairman of the planning board and had asked to be reappointed to another term on the board when her term expired at the end of June. The selectmen decided not to reappoint her, however. Chris won a Right to Know case against the selectmen in 2015, when Carroll County Superior Court ruled that the board had violated RSA 91-A multiple times, including the improper use of nonpublic meetings.

It’s unclear when the selectmen decided to remove her, but she received a two-line letter dated July 10 signed by the selectmen informing her that she was no longer on the planning board. Her name has been removed from the planning board’s page on the town web site.

Steve Brinser has resigned from the planning board in protest and I’m told that John Lapolla also resigned. (Both their names have also been removed from the web site.) In addition, John Cameron’s term expired at the end of June, leaving the board with only four regular members — three of whom were appointed in June.

While the letter was dated July 10, the selectmen did not discuss the matter in public session at their July 10 regular meeting.

However, they did sign a “thank you letter to a board member.”

Chairman Lloyd Wood did not identify the board member they were thanking. The 7/10 public meeting minutes, which are in draft form at the moment, state, “Selectman Marcussen moved to approve a thank you letter to a board member, seconded by Chairman Wood with all in favor.”

Chris said her letter was just two lines long, and this screen shot of Selectman Chip Albee signing the letter midway down the page makes it clear that if it wasn’t the letter to Chris, it certainly was a very short piece of correspondence.

In order to have a letter ready to sign on 7/10, they likely reached a decision at the meeting on July 3, even though there was no specific mention of Chris Sawyer during the public meeting that day.

There was this exchange during the July 3 public meeting, however:

Chip: “Do we have a nonpublic for appointments today?”
Lloyd: “Pardon?”
Chip: “Are we having a nonpublic for appointments today?”
Bill: “I think we need to.”
Lloyd: “If you want, yes. We can have a nonpublic any time we’re [in a] legal meeting.”

By saying “for appointments,” Chip may have been referring to appointing someone to a board. However, at the end of the public meeting, the selectmen said they were going into nonpublic for a “personnel issue.”

The word “personnel” does not appear in the nonpublic meeting section of 91-A. The public minutes for July 3 read, “Selectman Marcussen moved to enter non-public session per RSA 91-A: 3 II (a) to discuss a personnel issue.” As you can see in the video, despite what the minutes incorrectly show, Bill didn’t cite the specific paragraph, which is a violation of RSA 91-A:3-I(b): “Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session.”

91-A:3-II(a) states “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.”

Chris was not an employee, so if the selectmen relied on 91-A:3-II(a) to discuss her reappointment to the board, then they violated the law.

Regardless of whether they discussed Chris during the 91-A:3-II(a) session, they are likely in violation of RSA 91-A:3-III, which states, of nonpublic meetings, “minutes of such sessions shall record all actions in such a manner that the vote of each member is ascertained and recorded.”

The minutes for the 91-a:3-II(a) session read only, “the selectmen discussed various personnel issues.”

Furthermore, 91-A:3-II(a) does not allow the selectmen to discuss “various” personnel issues, only the specific issues as defined in the paragraph: “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her.”

It seems likely that the selectmen either discussed Chris’s reappointment during the 91-A:3-II(a) nonpublic meeting, which would have been illegal, or they discussed it in a non-meeting, which would be illegal.

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.