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 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 Have No Answer for Questions About Property Auction

The selectmen are conducting an auction on October 15, 2016, to sell town-owned properties. The auction is being conducted by Rick Sager, their attorney. Sager will be receiving a commission on the sales. It’s possible that, as the selectmen’s attorney, Sager might advise the selectmen, either in the past or the future, on which properties to seize for non-payment of property taxes.

The selectmen are refusing to come clean about when and how they determined the final list of properties to be sold at the auction. The meeting minutes do not show any recorded vote, according to town resident Sue Weeks, who raised concerns at last week’s selectmen’s meeting that two of the properties are on roads that aren’t currently maintained. Her concern is that if the properties are sold and developed, the town will be required to maintain the roads, and in the long run the cost will far outweigh any benefit that the town will get from either the sale at auction or the property taxes.

Selectmen Again Refuse to Have Meetings in Evenings, Instead Vote Unanimously to Restrict Public Comment

At Monday’s board of selectmen meeting, which was held at 4 PM when most Tuftonboro residents are at work and unable to attend, Chairman Carolyn Sundquist distractedly sorted her paperwork during the public comment portion of the meeting instead of listening to the concerns of town resident Betsy Frago. During other parts of the public comment portion Sundquist impatiently rapped her fingers on the table.

During public input the selectmen again flatly refused to consider a request to have at least one meeting a month at 6:30 PM.

Chairman Carolyn Sundquist also unilaterally refused a request to allow the public to ask relevant (on topic) questions during meetings. The selectmen had been allowing questions during meetings from Elissa  Paquette, the reporter from the Granite State News who always writes favorable articles about the selectmen. After a letter I wrote expressing my opinion that it was a form of unconstitutional viewpoint discrimination to allow one  person and no others to ask questions, Sundquist on September 13 unilaterally announced that the board would no longer take questions from Paquette or anyone else. During this week’s meeting Sundquist confirmed that there was no discussion of the matter by the board, and that she alone made the decision, saying “I eliminated questions.”

When questioned if the chair has the authority to make decisions about who can talk at meetings without being granted the authority to do so by a majority vote of the board, Sundquist hastily made a motion “to not allow public input during our meeting, and only at the end.”

Selectmen Lloyd P. Wood immediately seconded the motion, saying “I’m very pleased with that motion.”

Sundquist said, “apparently everything we do needs some kind of motion. Even though as chairman I do run the meeting, and if I hear from counsel that you can not allow one person to speak and not another, then I eliminate–and make it fair for everybody.”

Wood agreed, “Yes, the case law on that is very clear on that. It’s unfortunate, but unfortunately we have to operate that way.”

“Exactly,” said Sundquist.

Selectmen Bill Marcussen remained completely mute throughout the entire discussion, but joined Sundquist and Wood on voting Aye to pass the motion to not allow any questions from anyone during the meeting, but to allow a public input section at the end of the meeting, after votes have taken place when the public input is meaningless.

After the selectmen voted, I asked Sundquist to confirm that the attorney had told her it was illegal to allow one person to speak and not another. She replied, “he didn’t say that it was illegal… he said you really shouldn’t allow one person.”

Wood repeated that “the case law is clear.”

Notes from the video:

The reason the selectmen voted not to allow questions from anyone until after the meeting: http://tuftonboro.net/max/town-government/letter-selectmen-questions-meetings/

New Hampshire Municipal Association, Selecting the Rules for Boards of Selectmen: https://www.nhmunicipal.org/TownAndCity/Article/323

New Hampshire Revised Statues Annotated (RSA) 41:8, CHOICE AND DUTIES OF TOWN OFFICERS ; Selectmen: http://www.gencourt.state.nh.us/rsa/html/III/41/41-8.htm

Court awards $40,000 in damages in Alton free speech case : http://www.unionleader.com/article/20160504/NEWS21/160509656

New Hampshire Retirement System lowers assumed rate of return to 7.25%: http://www.pionline.com/article/20160525/ONLINE/160529932/new-hampshire-retirement-system-lowers-assumed-rate-of-return-to-725

Pension board hits state with $420 million tab: http://www.chicagobusiness.com/article/20160826/NEWS02/160829890/pension-board-hits-state-with-420-million-tab

Selectmen Pay Rick Sager $210 to Tell Them to Follow the Law

rick sager invoice cemetery authorityThe Tuftonboro selectmen broke state law on April 25th by illegally authorizing a payment to Cory Hunter for maintenance work done in the town cemeteries. By law, only the cemetery trustees have the power to authorize such payments. The selectmen were told by Sue Weeks, who is the chairman of the cemetery trustees, at the April 25 selectmen’s meeting that the cemetery trustees were responsible for maintaining the cemeteries, not the selectmen. The selectmen ignored her and voted to pay Cory Hunter, thus breaking the law.

At the May 9th selectmen’s meeting during public comment I cited the specific state laws that govern the cemeteries, which clearly state that only the cemetery trustees have the authority to maintain the cemeteries.

Rather than simply read the statutes themselves and abide by them, the selectmen chose to seek legal counsel from their attorney, Rick Sager. According to the meeting minutes of a hastily scheduled, non-regular meeting on May 13, Sager sent them a memo advising them too “divorce” themselves from the cemetery operations. In other words, Sager clearly told them to follow the law. The selectmen have refused to make Sager’s memo available to the public, citing client-attorney privilege. They have also refused to allow the cemetery trustees to view the memo, even though Sager’s legal opinion obviously concerns the cemetery trustees in their official capacity as elected town officials.

For his advice to follow the law, Sager charged the tax payers of Tuftonboro at least $210.

His invoice lists .80 hours for “Email to/from Karen [Koch, administrative secretary] re: cemetery trustees, including legal research” for which he charged $140. In addition he charged $17.50 for 0.10 hours for “Email to/from Karen re 91-A issue (cemetery trustees).” As well as $52.50 for 0.30 hours for “E-mail to/from Karen re: how best to deal with legal opinions.” Presumably those last two were in regards to whether the selectmen would be required to share the legal memo with the cemetery trustees.

There is an additional charge of $122.50 on 5/18/16 for 0.70 hours for “E-mail to/from Karen re: 91-A issues.” It’s unclear if this was directly related to the selectmen breaking the law on April 25th. 91-A is the “Right to Know” law. However, I had asked Karen Koch in an email on May 17th to view Sager’s memo.

The taxpayers of Tuftonboro had to pay Rick Sager because the selectmen broke the law. $210 is not large in the grand scheme of things. However, it was entirely unnecessary.

The selectmen should have listened to Sue Weeks on April 25th. Not only did she tell them that the cemetery trustees, not the selectmen, were responsible for the maintenance of the cemeteries, she also told them that the cemetery trustees were meeting the follow week to review Hunter’s invoice. She also informed the selectmen that contrary to Carolyn Sundquist’s claim, there was no written contract between the town and Hunter. Furthermore, she told them that Hunter had down the spring clean up work without first talking to the cemetery trustees. Indeed, the last the trustees had heard from Hunter, last fall, he was not sure if he was going to continue doing the work, and wanted to think about it over the winter. Weeks then said that Hunter submitted an invoice April 8th, after the cemetery trustees’ April 5th meeting. Thus, the cemetery trustees had not even had a chance to review his invoice yet. In fact, the trustees hadn’t found out about it until at least a week later. Knowing that the cemetery trustees were meeting to review the invoice, the selectmen nevertheless chose to step in and pay the invoice to Hunter. By doing so, they broke the law. Rick Sager’s advice that the selectmen “divorce” themselves from the cemeteries proves the point.

At the May 24th budget committee meeting, while discussing whether to allow public comment, Carolyn Sundquist (she is the selectmen’s representative to the budget committee) said, “Could I just ask — what would the public say that would change our minds?” She also reminded the budget committee members that “the public does not have a right to speak.”

If the selectmen had listened to the public, in the person of Sue Weeks, on April 25th, then they might not have broken the law, and they would have saved the tax payer at least $210.

Selectmen Meet with Rick Sager about Auctioning of Town Property

Rick Sager is the town of Tuftonboro’s attorney. The board of selectmen (Chair Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) met with him on June 6, 2016, to discuss whether to also use his services as an auctioneer to sell properties that the town owns due tax deeding (i.e. the previous owners failed to pay property taxes). During public comment afterward, Bob McWhirter asked if the selectmen thought it might be a conflict of interest for Rick Sager to both be the attorney for the town as well as the auctioneer who then sells the properties. Carolyn Sundquist said that no, it is not a conflict of interest.

[Post updated: See Bob McWhirter’s comment below.]

Despite Advice from Attorney, Selectmen Continue to Violate State Law?

On Friday, May 13, in a hastily scheduled meeting not on the regular calendar, the selectmen reviewed “advice from Attorney Rick Sager that the Selectmen divorce themselves from the Cemetery Trustees in regards to clerical type responsibilities.” Yet during the same meeting, “it was agreed by the Board of Selectmen to ask Mr. Hunter to mow the cemetery at the Town House in time for Memorial Day before completely removing himself from cemetery maintenance.”

Stay tuned for more information on the advice from Rick Sager. I will be requesting a copy of it.