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

Per Employee Health Costs Revealed

Tuftonboro taxpayers spend an average of $20,156.43 per employee on health benefits, according to a spread sheet provided to me by an anonymous source.

The selectmen have been refusing to disclose this public information for over a year. The selectmen first claimed that disclosing the health costs would be a violation of the federal HIPAA law. However, the New Hampshire Municipal Association, a group generally hostile to government transparency, advised the selectmen that in fact it was not a violation of HIPAA. The selectmen nevertheless continue to obstruct the public’s right to know, not to mention to impede the budget committee’s ability to draft a budget.

The selectmen even sent the budget committee a budget for Personnel Administration that contained false information. In this PDF of the Personnel Administration budget, the column labeled “Total Comp” (i.e. Total Compensation) does not include the health costs, and is therefore inaccurate. It is not the “total compensation” for each employee. It is fraudulent.

What we spend on public employees is public information and the selectmen have no right to withhold that information from us.

Bemis Report (Steinman vs Tuftonboro)

For those following the Steinman vs Tuftonboro lawsuit, please see the attached documents.

Report 9-7-17 Bemis FINAL (002)

Addendum to 9-7-17 Report – Bemis

Attachment 1 – 1966 Plan

Attachment 2 – PB 116-2

Attachment 3 – Plan

Attachment 4 – PB 172-67

Attachment 5 – DES Waterbodies

Attachment 6 – Topo Map

Attachment 7 – Topo Map

Attachment 8 – Teale Affidavit

Attachment 9 – Plan 489-136

Attachment 10 – Water Control Plan

Attachment 11 – 1842 Layout

17020WD-20SCALE 8-29-17

 

Agreement on Temporary Injunction in Steinman Vs. Tuftonboro

Last week a preliminary hearing in Steinman vs Tuftonboro was cancelled at the 11th hour when the parties came to an agreement for a Stipulation on Preliminary Injunctive Relief. Rick Sager, the selectmen’s attorney, was kind enough to forward the agreement to me yesterday evening.

The Steinmans and the selectman have temporarily agreed to the location of the center line of Brown Road and the location of the Right of Way, without waiving any legal rights, “for the duration of this action or until amended by Court order.”

As long as they don’t encroach on the towns Right of Way, as temporarily agreed to, “the Steinmans may maintain the stonewall in its present location… on a temporary basis during the pendency [sic] of this action.”

Before the final hearing, the Steinmans may “extend the said stonewall along the temporarily stipulated right of way boundary line so as not to encroach the Town’s ROW to the water’s edge in compliance with all Town and State regulations.” However, they acknowledge if they do so the court may later require them to move the rocks.

The town agree to “take reasonable  steps to ensure the stones” (in their present location) are “secured against any third party removing” them.

The two parties acknowledge the Stipulation “does not create, extinguish, or limit any right for any member of the public to use any right of waay which may or may not exist in this location, but reserve the right to “proceed against any person whose actions are in disregard to the several rights of the parties hereto” through civil or criminal charges.

One of the points of agreement in the Stipulation is that the Town will “Notice this Order publicly in Town Records.” So it’s in the Town’s interest to get this information out, and I’m happy to do my small part. Still, Rick didn’t have to send it to me, so I thank him.