Selectmen’s Meeting for February 6, 2017

0:00 Pledge of Allegiance
0:35 start William Marsh
21:12 Chief Shagoury
25:30 SB12
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
— Beavers
– 53:05 Bill
— Brown Road / Lower Beech Pond (Sager still investigating)
— Culvert inventory
58:55 DRA approved warrant articles
61:50 correspondence
— 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

Candidates for Town Offices

Selectman for a 3 year term

  • Chip Albee 
  • Susan H. Weeks

(One office is open.)

Town Clerk for a 3 year term

  • *Heather K. Cubeddu

Tax Collector for Three Years

  • *Jacquelyn H. Rollins

Road Agent for Three Years

  • *Jim Bean

Budget Committee Members for a 3 year term

  • Gordon Hunt
  •  Guy Pike

(Two offices are open.)

Trustee of the Trust Funds for a 3 year term

  • *Peter Sluski

Cemetery Trustee for a 3 year term

  • (No one.)

Library Trustee for a 3 year term

*Paul Matlock

*Designates incumbent

Selectmen File Objection to Motion for Attorney’s Fees and Remedial Training

Richard Sager, attorney
Richard Sager
Photo credit: sagerhaskell.com

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).

Court Date Rescheduled in Selectmen’s Lawsuit Against Town Residents

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:

  1. Deny the Town’s Complaint
  2. Compel the selectmen to produce the electronic governmental records that we have requested, without charging us an illegal fee
  3. Order the selectmen to pay, personally, our attorney’s fees
  4. Order the selectmen to undergo, at their own cost and expense, remedial training on the Right to Know law

 

NH Fish & Game Confirms Lower Beech Pond Not Stocked with Fish in 2016

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.

For more information on Lower Beech Pond, read: Selectmen Vote on Brown Road Lower Beech Pond Issue.

Grunter Editorial Contains False Information

Tom Beeler published an editorial in the Granite State News today that contains several falsehoods and misrepresentations.

‘The Grunter’ • Est. 1859

FRANK CHILINSKI, Publisher THOMAS BEELER, Editor

Editorials, while unsigned, represent a consensus of the views of the editorial board of the Granite State News

Toxic Tuftonboro indeed!

This week we publish an Other Voices commentary on this page from Tuftonboro’s Barry Ennis. As he does fairly regularly in his letters, Ennis comes close to unacceptable disrespect in his criticisms, but we publish this letter to allow our readers to see how far the attack on trust in government has gone in Tuftonboro.

Please read his remarks and then continue here.

Mr. Ennis seems to have joined the small group of Tuftonboro residents who have committed themselves to find something – anything – they can use to foment distrust of the board of selectmen. They have sued the town, accusing the selectmen of violating the right-to-know law, RSA 91-A, as it applies to meetings. The result? The court found one technical error in posting a meeting and an error in judgment when the selectmen allowed a department head who was being reviewed in nonpublic session to bring up and discuss his budget, a subject that should only be discussed in a public meeting.

Carroll County Superior Court ruled that the Tuftonboro selectmen had violated the Right to Know law.

It was not brought to the judge’s attention that selectmen made that budget a topic at the next regular meeting.

That is irrelevant and has no bearing on whether the selectmen violated the Right to Know law. They did.

They have tried to portray the current selectmen as exercising control over cemetery maintenance and denying the cemetery trustees the right to manage it.

Because the selectmen overstepped their statutory authority and exerted control over the cemeteries illegally.

It turns out that years ago – long before the current board members lived in town, and likely even before the law relating to the duties of cemetery trustees was written – that all town grounds maintenance was done by one contractor as a matter of convenience.

That is irrelevant to whether or not it was illegal for them to make decisions about the cemeteries.

When the subject was raised, selectmen promptly turned the maintenance of cemeteries over to the trustees.

Actually, cemetery trust fund chairman Sue Weeks informed them they lacked the statutory authority to make payments for work done in the cemetery. They ignored her and went ahead and made payments they weren’t authorized to make.

They have made an issue of being denied the right to speak at meetings, when anyone can ask to be placed on the agenda to discuss anything.

Carolyn Sundquist has refused to put me on the agenda when she did not want to hear what I wanted to say about automatic employee raises.

They have asserted a right to ask questions and make comments at any time rather than at the end of the meeting.

This is a mischaracterization of what happened. The selectmen were engaging in unconstitutional viewpoint discrimination by allow Elissa Paquette to ask questions at any point during the meeting, but refusing to take questions from anyone else.

They have insisted that the board hold evening meetings and promised a petition warrant article requiring them to do so.

I asked the selectmen three times to please have at least one meeting per month in the evening so that more people could attend if they wanted to attend. The selectmen refused, stated they preferred having meetings during the day. I will be submitting a petition warrant article requiring them to have evening meetings, but only because they refused to hold at least one meeting — not all — in the evening.

They have requested thousands of e-mails, clearly trying to find some misbehavior they can pillory.

Tom Beeler has no idea what Bob McWhirter is looking for, because Tom Beeler has never asked Bob.

They belittle the fact that someone has to do their bidding, implying that town employees have nothing better to do.

I have no idea what this refers to.

They also dismiss the right to privacy of those sending e-mails and want their fellow taxpayers to pay for their fishing expedition as a matter of right.

Emails are government records. The readers of the Granite State News might be more aware of this fact if Beeler had published the letter I wrote to the editor on the subject, but he declined to print it. Furthermore, the law is extremely clear that the selectmen may not charge people a fee to inspect government records.

That issue has now been taken to Superior Court, where the town is seeking guidance on how it should handle these requests.

The selectmen have sued Bob McWhirter and me, using the power of local government to punish us for having the audacity to exercise our rights.

Now they are trying to make an issue about a property owner blocking access to a road.

Ennis does not go to selectmen’s meetings

Perhaps because he works and the meetings are during the day?

and there is reason to doubt he has even viewed the videos of those meetings available at the library.

What reason would that be? Has Beeler viewed Ennis’s library record to see what items he has checked out?

The issue he raises has been discussed (by our count) five times in open meetings, beginning with the July 25 meeting.

Beeler does not attend the selectmen’s meetings, so he may not be aware that what Sundquist said during public meetings is different from what she was communicating in private to the property owners.

The board as a whole – not Chairman Carolyn Sundquist alone – has taken seriously the issue of blocked access and has gradually escalated its response to the point where, as we report in this issue, they have asked Town Counsel Rick Sager to determine who controls the right-of-way at issue and what actions the town can take.

Perhaps they should have done that before Carolyn Sundquist advised the property owners to “go ahead with placing boulders in the access.”

This is not the secret conspiracy Ennis wants to accuse Sundquist of perpetrating. He should not take the misinformation someone is feeding him as truth.

Someone is being fed misinformation — the readers of the Granite State News.

The people involved in these actions have failed repeatedly to demonstrate lack of openness in town government or even a refusal to respond to questions and requests.

Does this look like “a refusal to respond to questions and requests”? How’s that for “openness in town government”?

To us, the selectmen are trying to do the job they were elected to do, conscientiously and openly.

The intention seems to be to sow distrust of Tuftonboro selectmen in general and Selectman Sundquist in particular.

Why this misguided effort? What is behind the open animosity (evident in Ennis’s letter) with which it is pursued?

The selectmen’s antipathy toward public oversight is what’s behind the distrust.

Clearly there are personal grudges involved – one member of the group has at least three – but getting even cannot be everyone’s motivation. What is it?

I have no idea who Beeler’s referring to.

To us this all started when the selectmen openly supported the library trustees’ third effort to get a new library built and used library reserve funds to have conceptual plans done to present to voters. Yet it’s hard to believe that successful opposition to a new library is driving this effort to make mountains out of molehills.

We think it is time for residents to say “Enough is enough!” and show their support for the selectmen and their town.

In fact, some residents are saying “Enough is enough!” And the Granite State News is doing its best to malign those residents.

Candidate Filing Period January 25 – February 3

TOWN OF TUFTONBORO PUBLIC NOTICE

Pursuant to RSA 669:19, all Candidates for Town Office must file a Declaration of Candidacy with the Town Clerk during the filing period, which will begin January 25, 2017 at 9:00 AM and end on February 3, 2017 at 5:00 PM.

Declaration of Candidacy will be received for the following Town Offices:

Selectman for Three Years Town Clerk for Three Years

Tax Collector for Three Years
Road Agent for Three Years Budget Committee for Three Years (2) Trustee of the Trust Funds for Three Years Cemetery Trustee for Three Years Library Trustee for Three Years

The Town Clerk’s Office is open to receive filings:

Mondays & Fridays – 9:00 AM to 4:00 PM Tuesdays – 6:00 PM to 8:00 PM Wednesdays – 9:00 AM to 6:00 PM

Last Saturday of the month (1/28/17) – 9:00 AM to 11:00 AM

The office will remain open on February 3rd until 5:00 PM.

Heather Cubeddu, Town Clerk Town of Tuftonboro

Tri-CAP’s Federal Lawsuit Against Former Auditor Over Financial Mismanagement

Tri-County Community Action Program, a 501(c)(3) non-profit organization asking the town of Tuftonboro to give it $5,000 in 2017, was in federal court Friday. The organization filed a lawsuit in December, 2015, against a former auditor. Tri-CAP has a budget of more than $20,000,000 and alleges that its auditor from 2008-2011, Ron L. Beaulieu & Co., of Portland, ME, failed to alert the board of directors of Tri-CAP that the organization’s finances were in shambles, in what other auditors have characterized as “inappropriate and perhaps illegal,” according to the New Hampshire Union Leader.

In particular, Tri-County CAP officials were taking money from a flush, fuel assistance account to prop up a dental medicine benefit for low-income clients that was running way over budget.

“The defendant during his years of audits found no deficiencies, and reported no concerns to TCCAP’s Board of Directors,” the suit said.

Once the state director of charitable trusts learned of the charity’s financial problems, he named a special trustee in January 2013 and dismissed Beaulieu as the auditor and retained Mason & Rich of Concord.

The new auditors found “substantial financial difficulties,” ordered the 2012 audit be modified and said in a report that the problems were “long-standing, multi-year problems and were so dire as to question whether TCCAP could continue to provide services as a going concern.”

Due to Tri-CAP’s financial mismanagement, the New Hampshire legislature stepped in and provided the organization with a $1,000,000 bailout and a $300,000 line of credit. Tri-CAP later settled with the state for $700,000.

You can view the Tri-County Community Action Program request package that was sent to the Tuftonboro selectmen.

Those who are interested in donating their own money to Tri-County Community Action Program can do say at their web site. Those who want to donate other people’s money to Tri-CAP don’t have to take any action. The selectmen will already be redistributing the town’s tax money to Tri-CAP and other 501(c)(3) organizations that the selectmen support.

Emails Are Governmental Records

Tom Beeler, the editor of the Granite State News, added an “editor’s note” to a letter he printed two weeks ago from Molly Powell (my wife). He wrote: “What is being requested is not ‘a record’ or ‘a document’ but every email sent or received by the town—an estimated 11,000—some of which contain very private information that no one gave permission for just anyone to see.”

RSA 91-A:1-a III defines “governmental records” as “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.” This includes “any written communication or other information, whether in paper, electronic, or other physical form.”

And RSA 91-A:1-a IV defines “information” as “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.”

That an email is a government record is not in question.

The City of Manchester, for instance, includes the following 91-A disclaimer in every email sent from the @manchesternh.gov domain: “The Right-To-Know Law (RSA 91-A) provides that most e-mail communications, to or from City employees and City volunteers regarding the business of the City of Manchester, are government records available to the public upon request. Therefore, this email communication may be subject to public disclosure.”

Indeed, the New Hampshire Secretary of State made a Right to Know request last month to the City of Manchester for all communications about a pilot program for electronic poll books. Essentially, the Secretary of State is requesting 18 months’ worth of emails. That is far more than Bob McWhirter has requested. The selectmen estimate that 11,000 emails would be responsive to Bob’s request, but this estimation has not been in any way substantiated. Bob refined his original request, however, drastically reducing the number of emails that would be responsive—11,000 was an estimate that is no longer relevant.

Tom thinks it matters whether the records contain “very private information that no one gave permission for just anyone to see.”

In Mans v. Lebanon School Board, the New Hampshire Supreme Court ruled that concern for “invasion of privacy” should not be so broadly interpreted as to defeat the purpose of the right-to-know statue. Furthermore, the Supreme Court has ruled repeatedly that “whether information is ‘confidential’ must be determined objectively, and not based on the subjective expectations of the party generating it.” (See Lamy v. N.H. Publ Util. Comm’n, among other cases.)

But Bob and I are not disputing whether certain parts of the emails we have requested will be redacted. The issue is that the selectmen are attempting to illegally charge us a fee to do the redaction. However, there is nothing in the statute that allows the government to charge a fee for the labor of responding to a Right to Know request. As Tuftonboro Selectman Carolyn Sundquist herself stated on October 17 in a Selectmen’s meeting and on November 1 in a Budget Committee meeting, we already pay the staff’s salary, and responding to Right to Know requests is part of their “normal work schedule.” That’s a direct quote from Carolyn, on November 1 (the video starts at 58:52, Carolyn’s comment is at 1:00:20):

Thank you to everyone who has very generously contributed to our legal defense fund. Through the kindness of fellow citizens, we have raised $2,215 so far to fight the selectmen’s lawsuit against us. The hearing is on January 27 at 9 AM at Carroll County Superior Court in Ossipee.

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”