Amendment to Right to Know Law Clears Conference Committee

A conference committee on HB606 has issued a report with an amendment to HB606. This bill clarifies that no fees may be charged to inspect or deliver records when no copies are made.  The amendment…

Source: HB606 Amended by Conference Committee

This is of interest to Tuftonboro residents because the selectmen are currently planning on revising the electronic copy policy in order to comply with the recent New Hampshire Supreme Court decision in Green v. SAU 55. Selectman Carolyn Sundqvist stated at a recent board meeting that though the policy has not yet been updated that the town would be comply with the decision.

The Supreme Court in Green does not directly address whether municipalities may charge for electronic copies, only states that if a record exists in electronic form then the municipality must make the record available electronically. The Court did note, however, that RSA 91A, the “Right to Know” law, allows municipalities to charge only the actual cost of making a copy of a record and that the cost of making an electronic copy is almost nothing. Quoting another court, the New Hampshire Supreme Court wrote, “The cost of copying and transporting electronically stored information is virtually nil.”

The New Hampshire legislature appears to be recognizing this reality by moving closer to expressly forbidding municipalities from charging for electronic copies of public records.

Tuftonboro has already adopted this in practice, and the official policy will soon follow. I have obtained several public records electronically without charge since the New Hampshire Supreme Court’s decision in Greene.

The Selectmen “Cede” Authority They Did Not Possess

The May 19 edition of the Granite State News carries a front page headline: “Tuftonboro Selectmen Cede Authority for all Cemetery Operations to Trustees.”

The Selectmen never had authority, under the law, for the operation of town cemeteries, and therefore can not be said to have ceded that power. Indeed, Selectmen Bill Marcussen is quoted as saying, during the impromptu May 13 meeting, “The cemetery trustees have clear authority.” This is clear under a plain reading of the law. I don’t claim to be a legal expert, however, and have always stated that I could have been wrong about the law. The selectmen have now essentially acknowledged, however, that they agree with my interpretation of the law.

And yet, the selectmen appear to have asked Cory Hunter to do more work at the Town House Cemetery.

The Granite State News reports, “Selectman Lloyd Wood asked that Hunter be contacted to take care of the cemeteries at least through Memorial Day in honor of the holiday, and he has agreed.” Contacted by who? The May 13 meeting’s minutes (currently in draft form, subject to revision) state, “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.” If Selectmen asked that the cemetery trustees contact Mr. Hunter, then that is fine. If “it was agreed by the Board of Selectmen to ask Mr. Hunter to mow the cemetery at the Town House,” then that is not fine, by the selectmen’s own admission.

No one is against, certainly I am not, maintaining the cemeteries, especially in advance of Memorial Day. That is not the issue. The issue has always been whether the selectmen had the authority to direct the maintenance of the cemeteries. That is no longer in question. The town’s attorney, Rick Sager, has advised the selectmen to follow the law. Selectmen Marcussen has stated that the cemetery trustees have the authority. Selectmen Carolyn Sundquist has acknowledged that no contract exists between the town and Mr. Hunter.

N.B.: The Granite State News printed my letter (“Why It’s Important“), but accidentally cut off the final paragraph and didn’t give me attribution. Amusingly the letter directly below mine is from Barry Ennis, criticizing the paper for a layout error in last week’s addition.

Selectmen Cite Attorney-Client Confidentiality

Citing attorney-client confidentiality, the Tuftonboro selectmen today refused to make available any communication they have received from attorney Rick Sager in their impromptu May 13 meeting in regards to the maintenance of town cemeteries. According to the meeting draft minutes, Sager advised them to “divorce themselves from the Cemetery Trustees in regards to clerical type responsibilities.”

Although the meeting was “properly posted,” according to the selectmen’s administrative secretary, Karen Koch, the meeting agenda was not sent out via email, as is the customary (though not required) practice. As a result, the only person present at the meeting other than Koch and the selectmen was Elissa Paquette of the Granite State News. Joe Kowalski, an independent contractor who ordinarily video tapes the selectmen’s meetings, was also not informed of the meeting and therefore was not present and there is no video record of the meeting. To be clear: the selectmen are not required to notify Kowalski, and there is no requirement that the meetings be recorded.

It appears the selectmen met the letter of the law in quietly posting a notice to the town web site on Wednesday, May 11. However, they broke with their ordinary habit of sending out a notice by email. (You can subscribe to receive email notifications for both agendas and minutes.) It is not surprising that as a result the residents who normally attend the selectmen meetings were not there.

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.

Tuftonboro Selectmen May Have Unintentionally Broken New Hampshire Law

At the May 9 meeting of the Tuftonboro Board of Selectmen, I expressed my concern that they may have unintentionally broken the law by voting on April 25 to pay the bill for maintenance work done on town cemeteries.

There is a separate (and to me less concerning) issue of whether there is a contract between the town and the landscaper who did the work. The Granite State News has reported inaccurately for the past two weeks that there is an “ongoing” contract and a contract that was “signed in 2010.” But the document from 2010 has no signatures on it and therefore was never at any point a contract. Further, this unsigned document has an expiration date of April 15, 2011. Selectmen Carolyn Sundquist acknowledged that there is no contract at the May 9 meeting (I also gave a copy of the document to reporter Elissa Paquette). I don’t know the landscaper and am not making any judgment whatsoever about him. This is not about him or the good work he has done for the town.

This is about the selectmen’s apparent decision to overstep their bounds. The landscaper submitted an invoice on April 8, after the cemetery trustees’ April meeting. The next trustee meeting was scheduled for May 3, the first time they’d be able to review the invoice. Sue Weeks told the selectmen at their April 25 meeting that the cemetery trustees were going to review the invoice on May 3. It is not unreasonable for contractors to wait less than 30 days to be paid on an invoice. (Many invoices I’ve seen ask for payment within 60 days.) The trustees had not left the bill unpaid; they had simply not had a chance to review it yet.

Selectmen Sundquist stated on May 9 that no trustee had stepped forward to say “that is our responsibility.” This is not accurate: Sue Weeks said on April 25, “The trustees are responsible for the cemetery maintenance.”

The selectmen knew that the cemetery maintenance was the responsibility of the cemetery trustees, knew that the trustees were meeting the following week, and knew that the trustees intended to review the landscaper’s invoice and pay him.

By state law, the selectmen are not authorized to make payments for the maintenance of town cemeteries—unless I am misreading the law. But I am not a legal expert, so I have asked the selectmen to review the statutes and state for the record whether the selectmen have the authority to override other boards.

This may seem picayune, but it’s important. Selectman Lloyd Wood has stated in recent meetings that the town enjoys a good reputation with the state. But would the state continue to hold us in high esteem if the selectmen were to break the law? It seems that the selectmen not only took power from the cemetery trustees, who are elected by us to maintain the cemeteries; they also took power from the Town Meeting. Only Town Meeting can vote to make the selectmen trustees of the cemetery trust funds. I’m concerned the selectmen have inadvertently opened up the town for liability in a lawsuit. Even if it were not a violation of state law for the selectmen to usurp the power of another board, it would be setting a bad precedent. If the current board of selectmen can override the cemetery trustees, a future board of selectmen could override, say, the library trustees.

We have separation of powers at the federal, state, and local levels for a reason. We put systems of checks and balances into place so that we don’t have to rely on the good intentions of our fellow human beings, who are, like all of us, imperfect. James Madison wrote in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

I don’t think the selectmen intended to break the law, but I fear that they did.

Tuftonboro Town Reports

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Separation of Powers at the Local Level

On April 25, the Tuftonboro selectmen voted to pay Cory Hunter $810 for work he had done on the town cemeteries, even though Chairman of the Trustees of the Cemetery Trust Funds Sue Weeks stated that the trustees were scheduled to meet the following week, May 3, to address the issue. Carolyn Sundquist, chairman of the selectmen, has stated on multiple occasions that the town has a contract with Mr. Hunter, and the Granite State News reported last week that Mr. Hunter’s contract is “ongoing.”

Last Friday I submitted a Right to Know request to the selectmen to review any contract between the town and Mr. Hunter that existed between 2010 and now.

There was no contract in the documents that were provided to me by the selectmen.

There was a document that is not signed by anyone from the town, or even by Mr. Hunter. Even if it had been signed by both parties, this document has an expiration date of April 15, 2011.

Corey Hunter paperwork

I assume that when Selectman Sundquist stated on April 25 that there was a contract, she was simply mistaken. In the May 2nd meeting, when she stated that she had the contract in front of her and that it was current, I assume she just hadn’t read it yet.
But that’s not my main concern.

From what I understand, and of course I may be wrong, the selectmen do not have the authority to make payments for the maintenance of the cemeteries.

I believe all the selectmen were acting in good faith. Furthermore, I have never met Mr. Hunter, and I emphatically am not making any judgement about him as an individual or a businessman.

Nevertheless, I’m worried that when the selectmen voted to pay Mr. Hunter for the work on the cemetery, they unintentionally broke the law.

The selectmen have broad authority to “manage the prudential affairs of the town,” per RSA 41:8. However, the New Hampshire Supreme Court has ruled that “the phrase is not intended to confer unfettered power” and that “towns only have such powers as are expressly granted to them by the legislature.” Both those quotations are from Girard v. Allentown (1981).

RSA 41:11-A:I states: “The selectmen shall have authority to manage all real property owned by the town and to regulate its use, unless such management and regulation is delegated to other public officers by vote of the town, or is governed by other statutes.”

289:2 states unequivocally: “The operation and maintenance of all cemeteries owned and operated by the municipality shall be in the charge of the cemetery trustees.” Further, 289:7:I-C states that the trustees shall “expend all moneys raised and appropriated by the municipality for cemetery purposes.”

Only Town Meeting can “delegate the duties and responsibilities of the cemetery trustees to the board of selectmen,” according to RSA 289:6.

$810 is not an exorbitant amount of money for the town, and, again, I do believe the selectmen were acting in good faith. But we have different boards for a reason. If one board can overrule another board, what’s the point of having multiple boards? The separation of powers at the local level into different boards is a deliberate act by the legislature given that separation of power is explicitly required by Article 37 of the New Hampshire Bill of Rights.

At their May 9th meeting, I asked the selectmen to please examine the documents and the RSAs, and at the next meeting, to please state for the record whether there is a current contract with Mr. Hunter and whether the selectmen have the authority to act as trustees for the cemeteries. Selectman Sundquist acknowledged that there is no contract, but averred that there is an ongoing agreement between the town and Mr. Hunter. That does not address the issue of whether the selectmen have the authority to overrule another board. I await the selectmen’s response. Because Selectman Bill Marcussen will be out of town for the next scheduled meeting of the board of selectmen, I have asked to be placed on the agenda for their June 6th meeting