Carla Lootens Cooks Up Looney Fake Facts

To: Budget Committee
CC: Board of Selectmen
Subject: Illegal withholding of public information

Dear Carla and the Budget Committee,

As a legal and factual matter, Carla is wrong that it is a violation of any statute to disclose the dollar amount spent per employee on health and dental benefits. That is public information that the New Hampshire Supreme Court has ruled must be disclosed.

Carla is overlooking the plain language of RSA 91-A:5-IV, the Attorney General’s Memorandum on the Right to Know Law, and New Hampshire Supreme Court precedent.

At your January 2, 2018, meeting Carla stated that she felt it was wrong to disclose per-employee health costs. She cited an email she received last year from Stephen Buckley of the New Hampshire Municipal Association (NHMA). In that email, Buckley referenced RSA 91-A:5, which lists exemptions to the Right to Know law. However, Carla did not read that section (RSA 91-A:5-IV) during the meeting, when she falsely claimed that publishing the health costs was a violation of the statute. That paragraph reads, in part:

EXEMPTIONS… Records pertaining to internal personnel practices; confidential, commercial, or financial information… and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy… [Emphasis added.]

The word “medical” here is an adjective modifying the word “files.” The law clearly refers not to per-employee medical costs but to medical files, i.e., medical records. Indeed, the New Hampshire Attorney General’s Memorandum on New Hampshire’s Right to Know Law makes this explicit on page 20: “Some, but not all, of these privileged and excluded records are included among the exemptions specified in RSA 91-A:5, e.g., medical treatment records” (emphasis added).

Only an agenda-driven, tortured reading of the statute could lead Carla to think the dollar amount spent on each employee is a confidential medical treatment record.

Buckley’s email, as read aloud by Carla on February 15, 2017, in fact does not specifically claim that the per-employee health cost itself is confidential. Buckley merely states in his email that under RSA 91-A:5-IV, some governmental records are exempt from disclosure.

As an attorney for the NHMA, Buckley is undoubtedly aware of the New Hampshire Supreme Court’s ruling in Prof’l Firefighters of N.H. v. Local Gov. Center (LGC). In that case, the Supreme Court ruled that the LGC was required to provide specific salary information, “including salary and benefit information for LGC employees” under 91-A. The NHMA is a subsidiary of LGC.

The Supreme Court wrote:

LGC argues that the trial court erred in ordering it to disclose records that identify the names and individual salaries of its private employees… LGC contends that these specific records are exempt from public disclosure under RSA 91-A:5, IV as “confidential, commercial, or financial information” whose disclosure would “constitute an invasion of privacy.” … We reject LGC’s argument… We need not specifically address whether the records are “confidential, commercial, or financial information,” because we follow Mans [v. Lebanon School Board] and conclude that disclosure of the records would not constitute an invasion of privacy.

Carla stated during the January 2 meeting that “my gut tells me that it’s wrong, whether or not it’s accurate, to put people’s names out there.”
However, in Lambert v. Belknap County Convention, the Supreme Court ruled “[w]hether information is exempt from disclosure because it is private is judged by an objective standard and not a party’s subjective expectations.”
Carla’s gut feeling is not relevant to the question of whether disclosure is legal.

The New Hampshire Constitution states that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” This right is codified in RSA 91-A, the Right-to-Know Law, which was enacted “to ensure . . . the greatest possible public access to the actions, discussions and records of all public bodies.” As the preamble to 91-A recognizes, “[o]penness in the conduct of public business is essential to a democratic society.” Thus, 91-A provides that “[e]very citizen . . . has the right to inspect all governmental records in the possession, custody, or control of [all] public bodies or agencies.”

The Supreme Court explained why transparency is important, writing in Prof’l Firefighters of N.H. that “public scrutiny can expose corruption, incompetence, inefficiency, prejudice and favoritism.”

Carla has worked hard for over a year to prevent public scrutiny of the per-employee cost for health and dental benefits. By her own admission, she first tried to conceal the information through HIPAA. When that did not work, she concocted a tendentious reading of 91-A:5-IV in order to withhold the information. This has harmed the public. The Supreme Court wrote, also in Prof’l Firefighters of N.H., “the Right-to-Know Law favor[s] public scrutiny in order to enable resident voters to properly exercise their final appropriating authority.”

Carla has not served the town well on the budget committee, but has instead sought to prevent resident voters from “properly exercising their final appropriating authority.”

At the next meeting, Carla should either:

  1. Publicly state for the record that she was wrong and that the per-employee cost for health benefits is not exempt from 91-A, that it is public information, and that my publishing of that information was not illegal as she falsely alleged, or
  2. Resign.

Kind Regards,
Max

References
The New Hampshire Constitution
https://www.nh.gov/constitution/constitution.html

The Right to Know Law (91-A)
http://www.gencourt.state.nh.us/rsa/html/vi/91-a/91-a-mrg.htm

Attorney General’s Memorandum on the Right to Know Law
https://www.doj.nh.gov/civil/documents/right-to-know.pdf

Prof’l Firefighters of N.H. v. Local Gov. Center, 159 N.H. 699, 992 A.2d 582 (2010)
http://www.orol.org/rtk/rtknh/2009-215-2010-01-29.html

Lambert v. Belknap County Convention, 157 N.H. 375, 949 A.2d 709 (2008)
http://www.orol.org/rtk/rtknh/2007-566-2008-06-13.html

Mans v. Lebanon Sch. Bd., 112 N.H. 160, 290 A.2d 866 (1972)
http://www.orol.org/rtk/rtknh/6325-1972-04-28.html

Carla reading email from Stephen Buckley

January 2, 2018, Budget Committee Meeting

Budget Perjury

Several members of the Tuftonboro Budget Committee are preparing to sign form MS 737, which states: “Under penalty of perjury, I declare that I have examined the information contained in this form and to the best of my belief it is true, correct, and complete.”

But the board of selectmen have not provided the budget committee with basic information about how the budget is calculated: They will not say how much we spend per employee on health benefits. How can any member of the committee declare that the information in the budget is “true, correct, and complete” without knowing whether the information is in fact true, correct, and complete? To do so would be perjury, a class B felony.

The amount proposed for public-employee benefits is $594,274, or 16.2% of the total proposed 2017 budget.

The selectmen claim that public-employee privacy rights prevent them from disclosing how much the town spends per employee on health benefits.

But this information has been made available in previous years. In addition, the Carroll County business office recently turned over approximately 3,000 records in a Right to Know request for all employment records for anyone employed by the county during a specific period, including information about each employee’s eligibility for dental or health insurance. The County also turned over records of insurance claims that had been filed by individual employees during the same period.

As taxpayers, we have the right to know how much we’re spending per employee on health benefits. At the February 15th public hearing on the budget, I stated my concern that the selectmen were exposing the town to future litigation by refusing to disclose basic budget information and flouting Right to Know laws. Selectmen chairman Carolyn Sundquist replied, “What’s one more case?”

Not all budget members are preparing to commit perjury. Steve Brinser, the vice chairman of the committee, will not be signing. “With respect to almost $600,000, that’s in the budget,” said Brinser, referring to the total amount Tuftonboro spends on employee benefits, “which I can’t tie down—that causes me to have a problem. I can’t sign off to attesting that it’s accurate.”

The committee should not commit perjury but instead should insist that the selectmen provide true, correct, and complete information.

Proposed Operating Budget: $1 Million Increase in Five Years

The proposed 2017 operating budget would appropriate more than $1,000,000 more than the town spent in 2012.

Steve Brinser, the budget committee’s vice chairman, noted that the 2017 operating budget would also increase spending 12% over what was actually expended in 2016 at a time when the Social Security Administration says the rate of inflation is 0.3%.

Carolyn Sundquist: “What’s One More Case?”

Selectmen chairman Carolyn Sundquist last night dismissed concerns that refusing to disclose how much the town spends per employee on health benefits would open the town to future litigation through New Hampshire’s Right to Know statute (RSA 91-A). Seeming to invite a lawsuit, Sundquist said, “What’s one more case?”

The Tuftonboro selectmen are refusing to provide the budget committee with information critical to finalizing the town’s budget. The selectmen claim that public employee privacy rights prevent them from disclosing how much the town spends per employee on health benefits. The selectmen apparently base this decision to violate the Right to Know law on a single email that Carla Lootens, the chairman of the budget committee, received from someone at the New Hampshire Municipal Association. Lootens described this last night as “advice from counsel.” However, it’s not clear that an email from someone at NHMA really constitutes “advice from counsel.”

Recently the Carroll County business office turned over approximately 3,000 records in a Right to Know request that specifically asked for all employment records for anyone employed by the county during a specific time period including each employee’s eligibility for dental or health insurance. The County also turned over records of insurance claims that had been filed by employees during the same time period.

By refusing to provide the budget committee with basic information about how the budget is determined, the selectmen are not only violating the public’s Right to Know but also severely damaging the budget committee’s ability to do the job that they were independently elected to perform.

As budget committee vice chairman Steve Brinser noted, each budget committee member is supposed to sign off on the budget, with the statement “Under penalty of perjury, I declare that I have examined the information contained in this form and to the best of my belief it is true, correct and complete.”

“With respect to almost $600,000, that’s in the budget,” said Brinser, referring to the total amount spent on employee benefits, “which I can’t tie down, causes me to have a problem with that. I can’t sign off to attesting that it’s accurate.”

John Libby, also a member of the budget committee, voiced similar doubts about signing off on the budget when so many of the numbers within it, particularly tax revenues, are estimates. “How do we sign off on this, if this is an estimate, and these are all going to change?” He asked.

Update: In response to a comment from Rick, below, here is the 2016 personnel administration spreadsheet that shows how much we spent on each employee for health benefits:

4155 Personnel Administration for 2016

And here is what the selectmen provided for 2017:

4155 Personnel Administration for 2017

Per Employee Health Benefits Costs

The selectmen (Carolyn Sundquist, Bill Marcussen, Lloyd Wood) have refused this year to disclose how much will be spent per employee in 2017 for health benefits. The town’s health insurance provider is Interlocal Trust.

The budget committee voted 4-3 on December 6, 2016, for the personnel administration budget without knowing whether the budget line item of $315,622 for health benefits was accurate or not. Carla Lootens, Helen Hartshorn, Bob Theve, and Carolyn Sundquist voted in favor, while Steve Brinser, Tyler Philips, and John Libby voted against.

Continue reading “Per Employee Health Benefits Costs”