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.)
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%.
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:
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.
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
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.”
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.”
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.”
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).
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.
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
In an email recently, Glenn Normandeau, Executive Director of the NH Fish & Game Department, confirmed what many Tuftonboro residents are already aware of: The department did not stock Lower Beech Pond with fish in 2016.