What Carolyn Sundquist Knew

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Carolyn Sundquist knew that Tuftonboro selectmen could not legally charge an hourly fee for responding to Right to Know requests and that the town could charge only for “copy/paper fees.” She knew this long before she, as chair of the selectmen’s board, initiated a lawsuit against Bob McWhirter and me in an attempt to charge us for inspecting government records. The lawsuit would eventually cost the taxpayers about $20,000 (and counting — I’ll update you next week).

In a February 2016 email the selectmen’s administrative secretary, Karen Koch, wrote to Carolyn: “In terms of town’s [sic] charging an hourly rate for any research to be done, it is illegal to do so.” Karen wrote that this was based on a conversation she had had with Margaret Burns of the New Hampshire Municipal Association, and that “the only things that towns can legally charge for are copy/paper fees.”

Indicating that she had read Karen’s email and understood its content, Carolyn replied on February 27, 2016: “Thanks for checking with NHMA regarding minutes and charging for research. Would you please redo the sheet that list [sic] the charges for copies in a compatible format for inclusion in the copy policy we just approved. Note the changes regarding emailed copies and whatever else would need explanation.”

Carolyn’s own words show that she clearly understood no fees could be charged for “emailed copies,” but she (along with the other two selectmen, Lloyd Wood and Bill Marcussen) attempted to charge Bob McWhirter and me 25 cents per page to inspect emails. When we refused to pay that illegal fee (given the number of emails, it would’ve amounted to thousands of dollars), the selectmen sent sheriff’s deputies to our houses on a Sunday morning to serve us with a lawsuit.

As a result, we were forced to hire an attorney, a great expense, and to defend ourselves not only in Carroll County Superior Court but also in the court of public opinion. Just last week, the selectmen’s attorney, Richard Sager, publicly slandered Bob McWhirter in a Facebook post on the Tuftonboro Free Speech Forum Facebook group, which any resident of Tuftonboro can join: “Bob tags along behind Max like a little puppy dog, impugning my character by suggesting I would ever consider hiding ‘SECRET’ information. Get a life.” Sager then blamed Bob and me for the $20,000 that the selectmen paid Sager for the lawsuit and asserted that producing the emails was a “considerable expense to the town.” This is false, and Sager knows it’s false. Judge Amy Ignatius ruled on August 8 that there was no cost to the town for producing the emails.

 

The above-mentioned email, which the selectmen finally turned over to me last week, strongly suggests that Carolyn (and maybe Lloyd and Bill as well) acted in bad faith when suing us: They were attempting to collect a fee that Carolyn knew to be illegal.

Carolyn, Bill, and Lloyd are responsible for wasting around $20,000 in taxpayer money. Bob and I exercised our constitutional and statutory Right to Know, and we defended ourselves when the selectmen launched an abusive lawsuit against us.

Selectmen’s Noxious Lawsuit, Part of National Trend

“These lawsuits are an absurd practice and noxious to open government.” That’s how the Associated Press quotes University of Kansas journalism professor Jonathan Peters, speaking about a troubling trend in recent years of government bodies suing citizens who seek disclosure of public documents through open-records laws. You can read the whole article at AP (“Governments turn tables by suing public records requesters”).

I know all about these types of absurd lawsuits. Last year the Tuftonboro board of selectmen (at the time: Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) sued me and Bob McWhirter when we requested to inspect government records. They spent around $20,000 (and counting) in a vain attempt to charge us $.25 per page to inspect the records, even though New Hampshire’s Right to Know law states that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” The selectmen’s attorney, Richard Sager, argued in court that the law doesn’t make sense because, if read literally, it meant that the selectmen couldn’t charge us a fee. And they wanted to charge us a fee.

They lost their lawsuit when Carroll County Superior Court Judge Amy Ignatius ruled that they couldn’t charge us a fee. But as the AP quotes Mike Deshotels in its article, “You can lose even when you win.” Deshotels was sued by the Louisiana Department of Education when he requested school enrollment data. The DOE lost in court, like the Tuftonboro selectmen, but Deshotels incurred legal costs, like Bob and me, defending himself from an attack on his right to know what his government was doing.

These types of abusive lawsuits are happening all over the country, according to the AP. But in Michigan, the state House of Representatives unanimously (108–0) passed a bill this spring that would prohibit government bodies from suing citizens who are requesting documents. The bill needs to be passed by the Michigan Senate before becoming law.

Carolyn, Lloyd, Bill, and Chip spent $20,000 of your money in an effort to make it more difficult to get access to public records. Would they have done that if it was their own $20,000? It’s easy to spend other people’s money.

New Hampshire should make it illegal for government bodies to sue citizens who are requesting documents.

What Are They Hiding?

What could you do with $20,000? This past December, the Tuftonboro board of selectmen (at the time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) decided to spend what would end up being almost $20,000 of Tuftonboro taxpayers’ money on attorney fees paid to Richard Sager to pursue a lawsuit against Bob McWhirter and me for the “crime” of having made Right to Know requests to inspect government records. Our right to know what government officials are doing on our behalf is guaranteed by the New Hampshire constitution, and codified by RSA 91-A (the Right to Know law). I have that right to know, Bob has that right to know, and you have that right to know.

Rather than comply with the law, the selectmen chose to file a lawsuit against us — an action that is hard to interpret as anything other than an attempt to intimidate us and inflict personal financial harm. We are very grateful to the many fellow Tuftonboro residents who contributed to our defense fund, and also to our skillful attorney, Jim Cowles of Walker & Varney. The selectmen, bizarrely, filed a motion with the court to force us to reveal the “name, telephone number, address, and email address” of each of our benefactors. The court rejected this motion. Why would the selectmen want such personal information? I can think of no good reason.

The selectmen say that they were always willing to give us the government records — the emails. They just wanted to charge us a fee for them, even though the law states very clearly that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” Sager argued in court — unconvincingly — that this sentence in the law doesn’t make sense, because if read literally, it means the selectmen could not charge us a fee. Judge Ignatius agreed that the law, if read literally, means that “no fee shall be charged,” and she ruled on August 8 that the selectmen cannot, in fact, charge us a fee.

The reason this is important is that emails, being electronic, can contain a large number of pages. The selectmen wanted to charge us 25 cents per page, which would quickly turn into thousands of dollars. Records that you can inspect only after spending thousands of dollars are essentially records that you — and most people — will never be able to inspect.

Bob and I requested to inspect Carolyn Sundquist’s official emails because we and others in town suspected that she was making decisions about town business on her own (in violation of RSA 41:8), or with the other two selectmen but outside of public meetings (in violation of RSA 91-A). Our suspicious were confirmed when Guy Pike obtained 40 pages of emails concerning the Brown Road boulder fiasco. Those emails revealed that Carolyn had, apparently without the knowledge of the other selectmen, given Ted and Carol Steinman permission to block access to Lower Beech Pond, which is a state-own public body of water. The Steinmans followed Carolyn’s instructions and spent money placing boulders in the town’s right-of-way along the road. The current board then had to authorize the road agent to remove those boulders, which cost the taxpayers around $800. The Steinmans are now suing the town, disputing the boundaries of the right-of-way and alleging that the road agent trespassed. Perhaps they will win, or perhaps the town will win, but either way, it will probably cost taxpayers at least another $20,000 in fees to Richard Sager. All of this is due to Carolyn’s unilateral actions.

It makes you wonder what is in those emails Bob and I requested. Why were Carolyn and Bill and Lloyd willing to spend so much taxpayer money to make it nearly impossible to read them?

We still don’t know what’s in the emails. Even though Judge Ignatius ruled that the selectmen could not charge a fee for the electronic copies of the emails, and after eight months of legal entanglement, and almost an entire year after Bob first made his Right to Know request, the selectmen (now Lloyd Wood, Bill Marcussen, and Chip Albee) have, incredibly, still failed to turn over any of the emails that are in question.

Bob made his Right to Know request on October 17, 2016. The selectmen must comply with the New Hampshire constitution, with the Right to Know law (RSA 91-A), and with Judge Ignatius’s order. They must immediately — 11 months late — give us access to Carolyn Sundquist’s official emails.

Selectmen Lose Right to Know Suit, at Cost to Taxpayers of Almost $20,000

The selectmen have lost their lawsuit against Bob McWhirter and me. Carroll County Superior Court Judge Amy Ignatius issued her decision on August 8, finding that the selectmen cannot charge us a fee to inspect governmental records, whether they be electronic or paper. This is not an earth-shattering decision. I don’t mean to disrespect Judge Ignatius’s judicial ability, but the law states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records whether they be paper, electronic, or other format.” I honestly have no idea why the selectmen thought that meant they could charge us a fee to inspect governmental records.

But they gave it the old college try, anyway, and spent almost $20,000 of taxpayer money in the process.

The board at the time was Carolyn Sundquist, Bill Marcussen, and Lloyd Wood. Carolyn Sundquist has since left the board.

The selectmen have 30 days to appeal the decision.

David Taylor of Right to Know New Hampshire, summarizes the decision here:

The Town of Tuftonboro, N.H. lost its effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.

Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.

Selectmen’s Meeting August 7, 2017

0:00:00 Call to order / Pledge
0:00:45 PUBLIC
Chris Sawyer: Federal Corner Road
Max Ledoux: RTK 91-A
0:04:40 REVIEW AND APPROVE MINUTES
0:06:50 SIGNATURE FILE
0:10:10 Chief Adam Thompson (Fire Department)
Ambulance payment processor agreement
0:28:20 Adam refers to accusations that he misled people at Town Meeting
0:42:54 Town Meeting 1994 authorized FD to go outside town lines to assist other towns or states. RSA 167
0:44:12 Adam doesn’t want to bill other towns for the airboat.
0:47:40 Chip: If you send the ambulance and do the work, then do the transport so we can get the billing
0:52:50 RETURN TO SIGNATURE FILE
0:53:00 Electricity contract
0:55:20 SELECTMEN’S UPDATES (none)
0:55:40 CORRESPONDENCE
0:56:15 Which line in budget to expend money for GIllum Excavation to clean Dore property
0:57:00 Trustees of the Trust Funds letter: Library Capital Reserve Fund is specifically for a new building so can not be used for anything to do with the current building
1:01:45 Lloyd: No action we can take other than pass on the memo to the Library Trustees
1:02:10 Chip: Well, I think we need to rescind our previous vote to pay the bill.
Chip makes a motion
Bill: But we made commitment to pay the bill. It turns out we can use the capital reserve funds, but we can’t just say “oh, never mind.”
1:05:30 Lloyd lists options
1:07:00 motion passes to reverse previous vote to authorize payment.
Selectmen will invite Library Trustees
1:09:00 Chip to clarify about minutes: you can add things, only correct
1:09:20 Resignation letters from planning board members
1:10:50 subdividing old cemetery
1:14:15 PUBLIC COMMENT
Max Ledoux, asking for Kathy Sutherland: Why are you paying to clean the Dore property?
1:14:55 Adjournment

Patrick Harvie, Expert Witness, Bills Town $2,281.25

Patrick Harvie of Standish, Maine, doing business as HCCI in Derry, NH, has received $2,281.25 from Tuftonboro taxpayers in exchange for his “expert” testimony last month about “metadata” at the hearing for the selectmen’s lawsuit against Bob McWhirter and me (Tuftonboro vs McWhirter/Ledoux). The selectmen sued us because we made Right to Know requests for public documents.

The legal fees that taxpayers of Tuftonboro have paid to the selectmen’s attorney, Rick Sager of Ossipee, for this case currently total $16,336.12. Harvie’s payment, made on July 11, brings the total amount of taxpayer money expended by the selectmen in their lawsuit to at least 18,617.37.

The selectmen tried to charge Bob and me a fee to inspect governmental records, even though the Right to Know law (91-A) states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”

The amount the selectmen tried to charge me to inspect documents was $6.50. They have spent nearly 3,000* times more than that so far on this lawsuit.

When prompted by Sager in court, Harvie boasted under oath that he knows “just about everything about how the internet works.” Even so, Judge Amy Ignatius rebuked him for using a monitor that she could not see. “Can I ask, since I can’t see any of it — I know there’s something up on the screen, but it’s not readable from here. …For my sake, and the sake of the record, if you want to point something out, a phrase like, ‘as you can see,’ doesn’t do much for me because I can’t see anything. So you need to really explain what it is.”

Harvie’s testimony was further made irrelevant when Jim Cowles, representing Bob and me, objected to his testimony on the grounds that neither Bob nor I had requested any metadata and did not contest that metadata exists. Judge Ignatius agreed that the testimony about whether metadata exists was unnecessary and asked that Sager move on. Seeming flustered, Sager then said, “Yes. K. So, uh, I guess your presentation is over.”

*The total they have spent is $18,617.37. What they wanted to charge me was $6.50. 2,864.21 * $6.50 = $18,617.37.

Selectmen’s Meeting with PD Chief Shagoury August 4, 2017

BOS meeting with Police Chief Andy Shagoury
0:00:00 Call to order / Pledge
0:01:00 performance reviews
0:01:40 new cruiser
0:02:25 Union Wharf parking ordinances
Town Meeting 1989 no overnight parking
selectmen 2003 two hour maximum
0:05:00 19 mile bay parking
0:10:00
0:15:25 Union Wharf Dock: conflicting signs
0:23:45 Community policing
0:28:00 (or thereabout) Drug take back days
0:37:25 Carrying firearms on school grounds — constitutional right. Police wouldn’t remove someone unless they were disorderly.
0:39:00 Firearms training
0:44:50 Bill: Police are people too
0:45:30 Police in schools
0:51:30 Lloyd: people say “Andy does a great job on NPR”
Lloyd: We need you to make a 90 degree turn to community policing. You need to do this for us.
0:57:30 Coverage when Andy’s out of town for Chiefs of Police Association business
1:02:00 NEW POLICE STATION
1:09:00 Lloyd: what message are you hearing from the selectmen over the last hour?
Andy: Communications.
Lloyd: Public relations?
Andy: Sure.
1:16:25 Lloyd: My expectation is there will be a substantial effort on your part

OTHER BUSINESS (Not with Andy)
1:16:45 Old Woods Road cleanup (The Dore property)
motion to approve bill for $1,200 to Gillum Excavation for clean up
1:18:10 motion to adjourn.

Union Leader: “Four Planning Board Members Quit in Tuftonboro”

Using tuftonboro.net as a source, the Union Leader reported Thursday:

TUFTONBORO — Four members of the Planning Board have resigned in the wake of the selectmen’s decision not to reappoint their chairman.

Following a 1-2 vote on July 24, veteran land use board member Fenton Varney announced his resignation and fellow members John Lapolla, Steve Brinser and Tony Triolo subsequently notified the town that they too were stepping down.

The issue came to a head after Chris Sawyer, who has served on the land use board since 2008 and most recently as chairman, received a letter from selectmen on July 11 thanking her for her service to the town as her term had expired.

She subsequently sent a written request to the board asking to be appointed to the Planning Board detailing her years of service, the benefits of continuity and her accomplishments, including streamlining the application process, making it more user-friendly and most recently spearheading the update of the town’s master plan.

During the July 24 meeting, a recording of which is posted on Youtube, both Varney and Triolo praised Sawyer’s leadership and work ethic on the board and urged selectmen to reappoint her. According to Triolo, Sawyer has always had the best interest of the town at heart.

The video of the meeting on YouTube was recorded by me and is available here: