Author Max LedouxPosted on
Congratulations to Chip Albee for being elected to another (non-contiguous) term as selectman!
According Town Moderator Dan Barnard, 379 votes were cast yesterday. The turn-out was considerably depressed by the blizzard. For comparison’s sake, in last year’s competitive budget committee election there were 832 ballots cast. And at last November’s federal election, Tuftonboro had 2,047 registered voters, and saw an astonishing 83% turnout with 1,705 votes.
Given the weather conditions yesterday, all the town officials, public employees, and volunteers who worked the polls yesterday (and kept the roads clear) deserve a well-earned thanks.
Update: Dan Barnard has rightfully taken me to task over the number of votes versus ballots in last year’s election. Since the budget committee election was for two positions, the 832 votes translate to 416 ballots. Dan also pointed out that in last year’s uncontested selectmen’s race Bill Marcussen received 386 votes and there were 46 write-ins, for 432 votes total. Therefore, yesterday’s 379 votes in the selectmen’s race, given the storm, are really quite remarkable! (But still very low when compared to the number of registered voters, unfortunately.)
The selectmen just announced that they will have an emergency meeting in less than two hours:
On Monday, March 13, 2017, at 1:00 pm, the Board of Selectmen will meet with Daniel Barnard, Town Moderator, to discuss options relative to tomorrow’s scheduled election. The meeting will be held at the Town Office.
RSA 91-A:2-II states:
Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including a nonpublic session, shall be posted in 2 appropriate places one of which may be the public body’s Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings. An emergency shall mean a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the public body, who shall post a notice of the time and place of such meeting as soon as practicable, and shall employ whatever further means are reasonably available to inform the public that a meeting is to be held. The minutes of the meeting shall clearly spell out the need for the emergency meeting.
There is a winter storm warning in effect for Tuftonboro from Tuesday morning to Wednesday morning, issued by the National Weather Service station in Grey, Maine:
…WINTER STORM WARNING REMAINS IN EFFECT FROM 7 AM TUESDAY TO 5 AM EDT WEDNESDAY…
* HAZARD TYPES…Heavy snow.
* Accumulations…Snow accumulation of 14 to 18 inches.
* TIMING…Snow will begin Tuesday morning. The heaviest snow
and most significant impacts are expected Tuesday afternoon
into Tuesday night. Snow will taper off early Wednesday.
* Temperatures…Around 20.
* Winds…North 15 to 25 mph with gusts up to 40 mph.
* Visibilities…one quarter mile or less at times.
* IMPACTS…Heavy snow Tuesday and Tuesday night combined with gusty winds and blowing snow…will create near-blizzard
conditions at times and lead to dangerous travel conditions.
The selectmen — Carolyn Sundquist, Bill Marcussen, and Lloyd Wood — filed a motion to continue earlier this week with Carroll County Superior Court to delay the hearing in Tuftonboro vs. McWhirter & Ledoux until after Carolyn Sundquist leaves office as chairman of the board of selectmen.
The selectmen sued Bob McWhirter and me in December and tried to force us into court just four days before Christmas. However, we hired an attorney and filed a motion to continue so that we would have time to respond. The court granted our motion and rescheduled the hearing to January 27. The selectmen then filed their own motion to continue, which we assented to, a few days before the 27th, and the hearing was rescheduled again to February 22.
Now they have filed another motion to continue, and today the Court granted the motion. The hearing has not as of this moment been rescheduled.
However, the hearing is almost certain to be after Sundquist leaves office after Town Meeting on March 15. The Court granted the selectmen “reasonable time” to respond to our counterclaim, which we filed on February 7. According to court rules, then, the selectmen have 30 days to respond, which would be March 9.
The selectmen also filed an Objection to our counterclaim, but the Court has granted our motion to add the counterclaim, in which we are seeking reasonable attorney’s fees from the selectmen. We also asked for a court order requiring the selectmen to undergo remedial Right to Know training at their own expense.
All this because the selectmen refuse to follow the clear language of RSA 91-A:4-IV, which states: “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
I asked to inspect some emails. The selectmen attempted to illegally charge me $6.50 to inspect those emails. I refused to pay. They sued me.
It’s reasonable to assume that the selectmen are spending more than $6.50 to sue me. (Richard Sager’s regular attorney fee is $175 per hour.)
We’ve had to file a counterclaim with Carroll County Superior Court because the selectmen were absurdly claiming in their Objection to our Answer that because they were suing us that the court shouldn’t view the lawsuit as a Right to Know case. (Never mind that their own stated reason for suing town residents is that they’re asking the court to “clarify” the Right to Know law.)
So for procedural reasons we have had to officially counter-sue the selectmen. Practically speaking, the only difference is that we had to pay a filing fee. That’s it. But it will allow the Court to narrow its focus to the issue at hand: whether the selectmen can charge a fee for the inspection of governmental records even though the law clearly states that they can not. In our counterclaim we’re also requesting that the Court hold the selectmen personally financially responsible for paying our attorney’s fees and also for paying for their own remedial Right to Know training.
Here’s our “Assented to Motion for Leave to File Counterclaim.”
0:00 Pledge of Allegiance
0:35 start William Marsh
21:12 Chief Shagoury
19:30 drug and alcohol policy
— Table and send to department head
31:30 Review minutes
36:12 signature file
45:55 finalize estimated revenue
47:52 Selectmen’s update
– 48:03 Carolyn
– 49:51 Lloyd
— Lang’s Pond Road project
– 53:05 Bill
— Brown Road / Lower Beech Pond (Sager still investigating)
— Culvert inventory
58:55 DRA approved warrant articles
— Lot Subdivision
— Red list bridges from state
— DMV closed while installing computer system
— US Census (2020)
— Wetlands permit
— Estimate for new computer server — $2350; can wait 2018.
1:10:30 public comment
— 1:10:38 Elissa Paquette: clarify tax numbers.
— 1:11:29 Sue Weeks: Drug Policy, performance review Friday 2/10
— 1:12:18 Max Ledoux: Inform board HB 178 has been amended, petition warrant article for selectmen’s meeting times
— 1:15:02 Joe Kowalski: Hazardous waste reimbursement
Richard Sager, attorney for the Tuftonboro Board of Selectmen, has filed an Objection in Carroll County Superior Court in the matter of Town of Tuftonboro v. Maxim A.A.L. Blowen-Ledoux & Robert McWhirter.
Through Sager, the selectmen are averring that they should not have to pay our “reasonable attorney’s fees,” should they lose, because their suit is not a Right to Know lawsuit, and “thus, there is no ‘lawsuit … necessary in order to make the information available’ to the defendants.”
The selectmen also claim in their Objection that it “isn’t clear if or when a complaint would be filed by either of these defendants.” They make this claim now even though just two months ago they justified their lawsuit against us by claiming in their original Complaint that “it is also apparent that the Town would be sued by one or both of defendants if the Town continued to refuse to provide redacted emails for no charge.”
The selectmen — Carolyn Sundquist, Lloyd Wood, and Bill Marcussen — sued Bob and me late last year in a preemptive attempt thwart our Constitutional and statutory Rights to inspect governmental records.
Now they claim, of us, “if they were planning to take a proactive approach, they should have done so before the Town filed this action.” Of course, the reason that we have not sued them is that they sued us.
Furthermore, no legal action would have been necessary had they simply complied with RSA 91-A:4(IV): “Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. … No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
Instead, they took the unprecedented step of suing us. They sought to force us into Court just four days before Christmas. However, we filed a Motion to Continue, which was granted by Judge Fauver, and the hearing was rescheduled to January 27.
On January 23, four days before the hearing, we filed an Answer to the selectmen’s Complaint. We could have dropped the Answer in Sager’s lap in court. Instead, we were courteous and provided it to him in advance. He then filed his own Motion to Continue, which we assented to through our attorney. The hearing is now scheduled for February 22, at 1PM.
After filing his Motion to Continue, however, Sager then took to Facebook to claim that our Answer was late because it was “required to be filed on December 21.” This is simply false.
However, when I asked Sager to correct his obviously wrong claim, he instead doubled down, writing “the document entitled ‘Summons – Hearing Scheduled’ served on both Mr. Ledoux and Mr. McWhirter states, in pertinent part, ‘The Court ORDERS that ON OR BEFORE: … December 21, 2016 …Maxim Blowen-Ledoux, A.A L.; Robert McWhirter shall file an Appearance and Answer or other response with this Court. A copy of the Appearance and Answer or other response must be sent to the party listed below and any other party who has filed an Appearance in this matter.’ It’s part of the public record. I am not making this up.”
Sager might not be making that up, but he is ignoring the clear meaning of “Appearance and Answer or other response.”
Our attorney filed an Appearance and a Motion to Continue on December 15, 2016. The Motion to Continue, which Sager assented to, was our “other response.” In the Motion to Continue, our attorney wrote “Defendants plan to address the Town’s Complaint in a responsive pleading, or memorandum of law, and more time is needed to conduct research and prepare the same.”
It strains credulity to think that the court would grant a Motion to Continue, and reschedule the hearing, but require the Answer to be filed by the original court date. What would be the point of postponing the trial, in that event?
Who knows. Sager wrote, “The deadline for filing an Answer has always been December 21. It was never modified by the court. I didn’t push the issue out of courtesy to your attorney, knowing he needed time to get up to speed.” He then added that he was “regretting that decision now”
Sager even alludes to his theory in the introduction to the Objection: “Rather than object to both the Answer and the Motion as being non-compliant with superior court rules in various aspects, the Town seeks instead to respond to the imbedded Motion on its merits.” (Emphasis added.) However, since he has no actual proof that our Answer was late or in violation of superior court rules, he offers none.
Later in the Objection, Sager misinterprets Paragraph 72 in our Answer. He seems to be under the impression that we were claiming the Superior Court found in Sawyer v. Sundquist that the selectmen “knew or should have known” that they were breaking the law.
That is not what we wrote, and a clear reading of Paragraph 72 makes that obvious. In fact, our attorney cited the ATV Watch case at the end of the paragraph, not Sawyer. The point we were making, apparently lost on Sager, is that since the Superior Court ruled the selectmen had violated RSA 91-A multiple times in Sawyer, the selectmen “should have known” that they were violating the law when they attempted to illegally charge me a fee to inspect a governmental record.
Sawyer was less than a year before the selectmen attempted to charge me, and two of the current selectmen — Carolyn Sundquist and Lloyd Wood, were on the board when Sawyer was decided against them.
Given Sager’s muddied view of RSA 91-A and superior court rules, it’s no wonder that the selectmen, with his advice, embarked on such an egregious abuse of power as to sue citizens in an attempt to avoid their obligation under the state constitution and law.
It is my opinion as a tax payer in Tuftonboro that our town is not served well by Sager’s legal advice and that we would do well as a town to fire him. Of course, the selectmen are the ones who decide who to hire as their attorney (even though his $175 an hour fee is paid with tax payer money).
Judge Ignatius of Carroll County Superior Court has granted a Motion to Continue filed by Rick Sager. The hearing in Town of Tuftonboro v. Maxim A.A.L. Blowen-Ledoux and Robert McWhirter has been rescheduled to February 22, 2017, at 1PM. It will be a two-hour hearing.
The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) are suing me and fellow Tuftonboro resident Bob McWhirter. Both Bob and I have separately asked to inspect governmental records. The reason for the lawsuit is that the selectmen don’t want to follow the Right to Know law (RSA 91-A). The law states unequivocally, “no fee shall be charged for the inspection or delivery, without copying, of governmental records.”
The selectmen want to charge us fees to inspect the governmental records. In Bob’s case the fees might run to more than $2,750! So they’ve asked the Superior Court to legislate from the bench to allow them to charge an illegal fee to all citizens seeking to inspect government records.
Sager filed the Motion after Bob and I filed our official response to the selectmen’s lawsuit.
Our response is almost 5,000 words and contains numerous counter-allegations against the selectmen, including this:
45. By way of further example, Defendant Blowen-Ledoux’s November 3, 2016, RSA 91-A request included emails to or from former selectmen Daniel Duffy. However, on November 7, 2016, the Selectmen’s Administrative [Secretary] informed Defendant Blowen-Ledoux that Duffy’s official “@tuftonboro.org” email account had been deleted when his term of office expired in March, 2016. Therefore, none of the emails he had sent or received while in office can be produced.
46. If the intentional deletion of all email to and from a Selectmen that only recently completed their term in office is not a direct violation of RSA 91-A, then it certainly violates the spirit of the law. See eg., James M. Knight v. School Administrative Unit #16, et al., Docket No. 00-E-307 (Rockingham Superior Court) (2001) (Abramson, J.) (respondents held in contempt after intentionally deleting requested files, and misleading the Court into believing that the files still existed at the time of trial, and were ordered to pay attorney’s fees, costs and to bear the costs of production for the remaining records.)
We also request that the Court:
- Deny the Town’s Complaint
- Compel the selectmen to produce the electronic governmental records that we have requested, without charging us an illegal fee
- Order the selectmen to pay, personally, our attorney’s fees
- Order the selectmen to undergo, at their own cost and expense, remedial training on the Right to Know law
Mark Evitts, president of the Hidden Valley Property Owners Association, and David Smith, a board member of the same association, worked closely with Tuftonboro Board of Selectmen Chair Carolyn Sundquist over the summer and fall to place a “stone wall,” as Evitts characterized it, along Brown Road to block vehicles with boat trailers from accessing Lower Beech Pond.
Emails from Evitts and Smith, which are public records as defined by RSA 91-A (the Right to Know law), as well as correspondence between the selectmen and Ted and Carol Steinman, were obtained through a Right to Know request made by Tuftonboro resident Guy Pike last month.
Smith wrote to Sundquist on August 3 that, “The longer this takes the longer the threat of milfoil infestation continues.”
Evitts made the concern more explicit on September 5 when he wrote to Sundquist:
As you probably know by now, we have installed a stone wall along the Steinman’s property at the head of Lower Beech Pond. The goals of the project were two fold:
- To keep boat trailers and large boats from backing down into the pond and to thereby reduce the threat of exotic weed introduction into the pond;
- To keep trucks and cars off the road shoulder/pond bank to limit further compression of the soil and to stop/limit erosion/road water runoff.
I’d appreciate it if you would focus on the second goal when discussing this at your public meetings. I may be overreacting, but I fear a disgruntled person might purposely introduce milfoil into Lower Beech Pond. Thus, if we don’t emphasize this goal in public no one will get any bad ideas.
Sundquist told Smith in an email on August 3, “At this point the water access could be blocked by boulders but the side of the road should not be blocked.”
However, on August 25, Sundquest emailed Road Agent Jim Bean, “I advised the Steinmans to go ahead with placing boulders in front of the access.”
It’s not clear whether Sundquist advised the Steinmans in person, over the phone, or by email. Pike said his Right to Know request was for “any and all communications” to or from town elected officials or employees on the subject of access to Lower Beech Pond. The selectmen did include in their response to Pike a two-page email that has been completely redacted other than Sundquist’s email signature. The selectmen did not give Pike any explanation why the two pages were redacted, so it’s impossible currently to determine if the redacted email might be from Sundquist to the Steinmans advising them to “go ahead with placing boulders in front of the access.”
According to the attorney general’s memorandum on the Right to Know law:
The public body must have a basis for invoking the exemption and may not simply mark a document “confidential” in an attempt to circumvent disclosure.
In addition, the attorney general further states:
The governmental entity should retain a copy of both the redacted and un-redacted record. The governmental entity producing the record should also include an explanation of why certain information has been redacted or removed from the record. For example, if a record contains both public information and confidential medical information that has been redacted, the person requesting the record should be informed that the record has been redacted to prevent disclosure of confidential medical information. It is helpful to cite the applicable section of the Right-to-Know law or the other legal authority which exempts the information from disclosure. The person seeking the governmental record can then easily independently assess the appropriateness of the redaction.
After Sundquist advised the Steinmans to “go ahead with placing boulders in front of the access,” they did just that, as Evitts wrote in his September 5 email.
However, the “stone wall,” as Evitts described it, is within the town’s right of way, according to a letter the selectmen sent to Ted and Carol Steinman on October 17.
The Selectmen have reviewed the issue of the very large rocks placed in the Town’s right-of-way on Brown Road. The placement of the rocks was not authorized by the Board of Selectmen. In your discussion with Board Chair Carolyn Sundquist and Code Officer Jack Parsons, it seems there was a misunderstanding of what was allowed at the time. Chairman Sundquist advised that you would only be able to close off the access to Lower Beech Pond with a couple of large rocks. She also mentioned the possibility of a No Parking sign, but never authorized blocking off the right-of-way. Chairman Sundquist apologizes that she may not have been specific enough in what was allowed.
The selectmen then requested that the Steinmans “move the boulders from the right-of-way to your property line as soon as possible.”
The Steinmans replied in a letter to Sundquist on November 15:
In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a 3-foot wide opening at the head of the pong to allow small boats, canoes, kayaks to be carried in. We complied with the direction of Jack Parsons to keep the rocks 3-feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro’s Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.
We have tried to be good citizens and we have worked with the town in good faith to develop a plan to address the erosion problem. A group of us banded together this summer to personally fund the rock warrior, which we view as a first step in this Erosion Control Project. We spent approximately $3,500 on the project, so I’m sure you can understand our dismay when we received your request to remove the rocks. Again, our objective is simply to protect the lake and by extension the surrounding property values while enabling all to access the pond through our property.
The selectmen (Carolyn Sundquist, Bill Marcussen, Lloyd Wood) had a special meeting this morning at 10AM to encumber funds that had been appropriated for 2016 but not spent. Encumbering allows the funds to be spent in 2017 instead. Selectmen Wood voted “no” on the measure to encumber funds for new garage doors at the high department garage on Sodom Road. Other than that, the selectmen were unanimous in their other votes, including to encumber funds for storm windows at the Town House.
The selectmen also voted to authorize their attorney, Rick Sager, to investigate public access to Lower Beech Pond from Brown Road. In an August 25, 2016, email to Road Agent Jim Bean, which local resident Guy Pike acquired through a Right to Know request, Carolyn Sundquist wrote “I advised the Steinmans to go ahead with placing boulders in front of the access.” The Steinmans are Theodore and Carol Steinman, of Brown Road. After Sundquist advised the Steinmens to “go ahead with placing boulders,” they paid their contractor $3,500 to place boulders at the public access to Lower Beech Pond, which is a state pond stocked with fish by the New Hampshire Fish and Game department. Sundquist apparently did not consult with Sager before advising the Steinmans.
The Steinmans explained in a letter to Sundquist dated November 15, 2016, also pursuant to Pike’s Right to Know request, “In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a three foot wide opening at the head of the pond to allow small boats, canoes, kayaks, to be carried in. We complied with the direction of Jack Parsons to keep the rocks three feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.”
Unfortunately for the Steinmans, it appears that the rocks are within the town’s right of way. The question now is, should the Steinmans, who diligently sought the town’s advice before taking action, be held financially responsible for moving the rocks? According to an article on the concept of Municipal Estoppel at the New Hampshire Municipal Association’s web site, no. If the Steinmans can prove that they sought the advice of an “elected official or a municipal employee with actual authority to represent the municipality on the matter” who “makes a statement to a person which proves to be false” then “the municipality will be ‘estopped’ or ‘prevented’ from taking action to reach some other result with the person.”
In this case two elected officials, Selectmen Carolyn Sundquist and Road Agent Jim Bean, as well as a town employee, Jack Parsons, told the Steinmans it was OK to place the rocks where they are currently located, in the town’s right of way. Since the Steinmans relied, in good faith, on advice that turned out to be false, that means that the town will be “estopped” from requiring the Steinmans to move the rocks.
Carolyn Sundquist gave bad advice. Now the town has to pay Rick Sager $175 an hour in taxpayer money to tell her that it was bad advice. Then we might have to spend public money to move the rocks that are only where they are now due to Sundquist’s mistake.
The selectmen forgot to say the pledge of allegiance before this morning’s meeting (they are required by vote of Town Meeting to start each meeting with the pledge), so Guy Pike led a recitation of the pledge, joined by other members of the public, after the selectmen adjourned their meeting.