Taxpayers’ Bill for Selectmen’s Folly Climbs to $20,930.87

The selectmen lost their lawsuit against Bob McWhirter and me but they’re still paying their attorney, Richard Sager for it using taxpayer money. Sager’s invoice from September includes $1,884.75 for services related to the selectmen’s lawsuit. This brings the total that the selectmen have paid to Sager for the lawsuit to $18,649.62. The selectmen also paid $2,281.25 to Patrick Harvie to give “expert testimony” at the court hearing in June.

That brings the total amount of taxpayer money that the selectmen have spent trying to make it more difficult for the public to access public documents to $20,930.87.

The selectmen have spent such a large amount of money on their failed lawsuit that even Sager seems to think it’s too much. Starting in September, Sager reduced his rate and his paralegal’s rate — for the services related to the Right to Know case only — to 60% of his regular fee, which is $175 per hour. (That is the prevailing municipal rate for attorneys in this area.) [See update below.] Sager’s regular rate for his paralegal is $100 per hour. He reduced those rates to $105 and $60.

If Sager had charged his regular fees for the work related to the lawsuit in September then his invoice for those services would have been $3,141.25 not $1,884.75.

I appreciate that Sager reduced his rates (for work related to the lawsuit) in September. However, the bulk of the work his office performed in that month was redacting of emails. Even at his reduced rates, that’s an incredible waste of taxpayer money considering the selectmen could have had the town office staff, who we already pay, do that work at no extra cost. Instead they chose to have Sager do the redaction work.

If the selectmen are going to continue to waste taxpayer money, I suggest Sager revert to his normal rates. Why should he take less than his normal fee? I don’t blame him for charging for his services.

Update: The post originally states “That is the prevailing rate for attorneys in this area.” But I updated it to include be the municipal rate after Sager had this to say on Facebook in response to this post:

Oh, Max. More complaining. Much Ledoux about nothing. And not accurate once again. So here goes. (1) I reduced my rate by 40% for the purpose of redacting emails because the Town didn’t have the resources available to do it. My rate for municipalities is $175/hour. (2) You are incorrect (again) when you say $175/hour “is the prevailing rate for attorneys in this area.” Wrong. That’s a prevailing rate (or even a little low) for attorneys doing municipal work. Call around and you will see the prevailing hourly rate in this area for non-municipal work ranges around $275-$300/hour. Head south and it’s in the $350-450 range. (3) I didn’t just decide to charge a lower rate for email redaction in September 2017. I offered that to the selectmen in 2016 when you made your request for 13,000 emails. So, when are you going to inform me and the folks on this Forum about your decision whether you agree to sit down and meet? Just don’t ignore the invitation, man up! If you don’t want to participate, say so (and why would be interesting). If your answer is yes, let’s set it up.

Sager has never substantiated the “13,000” emails claim, although he throws it at me often as if it’s a lot of emails (it’s not). In court documents, the selectmen’s administrative secretary, Karen Koch, stated there were between 740 and 760 emails responsive to Bob McWhirter’s Right to Know request. My Right to Know request has so far produced a few hundred emails, at most. (However, the selectmen are refusing to provide me all of the emails that were the subject of the lawsuit.) Further, Karen stated in the documents that were filed with the court that the selectmen’s counsel (Sager) had informed her that the number of emails was not relevant.

Karen Koch Suggestions Were “Potentially Violative of 91-A”

In an interesting line item on his September invoice, the selectmen’s attorney Richard Sager billed Tuftonboro taxpayers $73.50 for “Email from/to Karen with details on the redaction process (and why her suggestions are more time consuming or potentially violative of 91-A).

It would be interesting to find out what Karen, the selectmen’s administrative secretary, suggested that Sager thought was “potentially violative of 91-A.” RSA 91-A is the Right to Know law, and the selectmen have spent much of the past year, as well as more than $20,000, attempting to make it harder for the public to gain access to public documents.

This is not the first “suggestion” Karen has made that can be considered “potentially violative of 91-A.”

In June of 2016, Karen Koch suggested in an email to Bob McWhirter, that she would not comply with the Right to Know law if she didn’t like the way requests were made. Karen wrote:

I will be glad to respond to legitimate Right to Know requests that are requested in a respectful manner. If requests are neither legitimate Right to Know requests or asked in an aggressive manner, I will refrain from responding. [Emphasis added.]

There is no “ask politely” requirement in RSA 91-A. If Karen ever did refuse to respond to a Right to Know request because, in her subjective opinion, it was “asked in an aggressive manner,” then that would be concerning — and “potentially violative of 91-A.”

What Carolyn Sundquist Knew

Click image to view email in PDF

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.

Richard Sager Calls Bob McWhirter a “Puppy Dog,” Tells Him “Get a Life”

Richard Sager, of Sager & Smith in Ossipee, represented the Tuftonboro board of selectmen in their failed lawsuit against Bob McWhirter and me. The selectmen sued us after we made Right to Know requests, because they thought that they should be able to charge us a fee even though the law states clearly that they cannot. Carroll County Superior Court Judge Amy Ignatius ruled on August 8 that the law, which states that “no fee shall be charged,” in fact means that “no fee shall be charged.” Despite this, as of today, the selectmen still have not provided us with any of the emails we requested. Bob made his Right to Know request almost a year ago, on October 17, 2016.

The selectmen have chosen to pay Sager $175 an hour to process the Right to Know requests, even though the town office staff could do it and we already pay their salaries.

Today, instead of providing us with the emails we have a constitutional right to see, Sager instead resorted to calling Bob names, and he also misrepresented the facts about the case. It’s not clear whether he will bill the town $175 an hour for his time composing this Facebook post:

The selectmen’s administrative secretary, Karen Koch, submitted written testimony to the court prior to the hearing that the number of emails responsive to Bob’s Right to Know request was between 740 and 760, not 13,000. My request for emails between Tuftonboro.org email addresses and the Granite State News covered 25 emails, not 13,000. I don’t know how many emails were responsive to my other request for Carolyn Sundquist’s emails between January 1, 2016, and February 29, 2016, because the selectmen never told me.

We did postpone the original hearing. The selectmen tried to push us into court right before Christmas. We had to hire an attorney and prepare a defense. We also both had plans for Christmas with family. Once we hired an attorney, the selectmen suddenly lost their zeal to see us in court. It was the selectmen who repeatedly postponed the hearing from January to June.

Richard Sager should apologize to Bob, and the selectmen should re-evaluate their relationship with him. Not only does he frequently act unprofessionally, but he has now lost several cases for the town in Superior Court.

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.

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.

Richard Sager’s Haul from Suing Residents for Exercising Rights: $16,336.12

The selectmen have paid Richard Sager, of Sager & Smith in Ossipee, NH, $16,336.12 in taxpayer money from the residents of Tuftonboro to sue Bob McWhirter and me for the supposed crime of exercising our right to know under RSA 91-A and the New Hampshire Constitution, a review of Sager’s invoices reveals. The $16,336.12 that the selectmen handed over to Sager does not include charges for an “expert” witness, Patrick Harvie, whom Sager brought in at $125 an hour to explain to the court that emails have metadata, a fact we never contested and that was irrelevant to the case.

In November, 2016, I made a Right to Know request to inspect some emails. The selectmen attempted to charge me $6.50 to inspect the emails, even though the law unequivocally states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” When I refused to pay the $6.50, the only amount they ever tried to charge either Bob or me, the selectmen (at that time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) sent a sheriff’s deputy to our doors on a Sunday morning to serve us each with a lawsuit: Town of Tuftonboro vs Bob WcWhirter & Maxim A.A.L Blowen-Ledoux. (I have a weird name, so sue me. Wait, no; don’t. That’s just an expression!)

$16,336.12 for $6.50.

Think that one through the next time Selectman Bill Marcussen says he has a fiduciary responsibility to the town.

Sources:
Sager invoices November 2016 to May 2017
Sager invoices June 2017
Sager RTK fees