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”

Fear of Milfoil Was a Factor in Blocking Public Access to Lower Beech Pond

Photo Credit: Chris Sawyer
Photo Credit: Chris Sawyer

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:

  1. 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;
  2. 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.

 

Selectmen Meet, Encumber Funds, Vote on Brown Road Lower Beech Pond Issue

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.

Public’s Right to Know Under Attack in New Hampshire

I’m getting sued by the Tuftonboro board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) because I made a document request through New Hampshire’s Right to Know law and the selectmen don’t want to comply with the law.

So they sued me!

Now I’ve had to hire an attorney to defend myself, along with my co-defendant, Bob McWhirter, who is also being sued because he made a lawful request to inspect records.

We’re asking for small contributions to help us defray the costs imposed on us by the selectmen’s abuse of power.

Please consider donating $5 at https://igg.me/at/zFnfBtqY90Q.

Judge Fauver Grants Motion to Continue

Carroll County Superior Court Judge Peter Fauver granted a motion to continue Friday, which Bob McWhirter and I requested through our attorney, delaying our court date to January 27, 2017. The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) will have to now wait to prosecute their abusive lawsuit against us.

212-2016-CV-201 Notice of Decision
212-2016-CV-201 Notice of Hearing

A Cold Sunday Morning Visit

When you have done nothing wrong and the government sends armed men to your door as part of an effort to stifle your rights, tyranny is not too strong a word.

The deputy’s name was Brian Argue, and he visited both my and Bob Mcwhirter’s homes to serve us with a lawsuit from the board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen). Despite his last name, Deputy Argue was very genial and truly professional. I have no argument with his conduct. Nevertheless, how would you like an officer of the law–no matter how polite–to show up on your door with a court order, just because you made a Right to Know request?

We made a lawful request to inspect governmental records (emails, in this case), and the selectmen responded by irresponsibly and abusively dragging us into court. All because the selectmen don’t want to abide by the Right to Know law.

Due to the selectmen’s lawsuit, we have had to hire an attorney: Jim Cowles of Walker & Varney, P.C., in Wolfeboro. We have received a tremendous amount of support from other residents in town, who have generously offered to help us defend ourselves — and defend the public’s Right to Know — in court. Some local residents are taking checks directly to our attorney (checks should be made out to “Walker & Varney, P.C.,” with “McWhirter/Ledoux” written on the check’s memo line). We have also set up a crowdfunding page at Indiegogo where people can contribute to the legal costs forced upon us by the selectmen.

The full cost of defending our right to inspect governmental records against the selectmen’s vindictive lawsuit could rise into the many thousands of dollars. And that’s not even counting our taxpayer money that is being spent on the selectmen’s attorney, Rick Sager, to persecute us.

If you are inclined, and if you are able, we would appreciate your support: https://www.generosity.com/fundraising/defend-public-s-right-to-know-in-new-hampshire/.