Speaking in his signature slow-as-molasses, nasally rasp at the Budget Committee’s public hearing on the proposed budget, Max Ledoux told Carla Lootens on Tuesday night that he didn’t think she was a “nice person.” This rude remark came after Carla attempted to steer the meeting back toward budget matters following a lengthy and pointless comment from Max about the town’s 10-wheel plow truck, which broke down recently as well as got stuck in a ditch.
“We’re here to talk about the budget. You know I love you, Max, but …” said Carla, trying to be nice.
“Well, I don’t think that’s true,” Max then said.
“I’m being nice, Max,” replied Carla, to laughter from others in the room.
“You’re not a very nice person,” said Max.
“Hmm?” Said Carla, not hearing.
“I don’t think you’re a very nice person,” said Max, which is not a very nice thing to say.
“Max,” said Carla sternly, “we’re here to talk about the budget, please.”
Local government officials don’t want the public to know how taxpayer money is to be spent. It sounds familiar, but it’s not the Tuftonboro board of selectmen (Lloyd Wood, Bill Marcussen, Chip Albee) or the Budget Committee Chairman (Carla Lootens). This Keene Sentinal editorial from last month is about the Monadnock Regional School District.
Open, accessible, accountable and responsive: Monadnock officials owe district citizens some answers
Dec 12, 2017
Governing is difficult, tedious work, often not pleasant, but necessary. Those who give their time and energy to it are, generally, to be thanked. But there are those who revel in holding even a little power over their fellow citizens; in being on the inside, with information others lack; and in playing a disproportionate role in determining the course of our communities.
And sometimes, they get so caught up in that role that they forget why they’re really there, and that they serve at the will of the people.
“All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive.”
These words, from Article 8 of the N.H. Constitution’s Bill of Rights, are the underpinning of our state’s Right-to-Know Law. The purpose of the law is to hold public officials — both elected and appointed — accountable by allowing the public access to not only the results of government, but also the process. Thus, officials are bound, with few exceptions, to conduct official business in public, to answer questions posed by the public regarding their actions, and to make available any documents or records that would inform the public about the causes and effects of those actions.
It is the mechanism by which officials at every level of government — from the governor to state lawmakers to county commissioners to those elected or appointed to run our cities, towns and schools — must adhere to the principle that as the wording of the Constitutional passage above notes: All power resides in, and is derived from, the people.
The great danger of a government unfettered by such public scrutiny isn’t only that those in power might enrich themselves at the public’s expense or pass laws, rules and policies detrimental to the general citizenry (or specific subgroups) without opposition. Equally worrisome is that those in power might, if unchallenged, forget they serve at the public’s bidding and for the public’s benefit, not their own.
Which brings us to the Monadnock Regional School District’s latest flap — over Business Administrator Jane Fortson and the public’s right to information on her absence and, in particular, how the district’s finances are being handled during it.
Fortson, The Sentinel learned last week, was recently suspended, with pay. Inquiries to almost all of the district’s 13 board members and Superintendent Lisa Witte were rebuffed.
The Right-to-Know Law does give public bodies latitude in discussing certain personnel matters. Specifically, officials can refuse to reveal information that would potentially harm a person’s reputation, and they can refuse comment on disciplinary actions. Either might account for Witte and board members declining comment on why Fortson was suspended.
But those exemptions don’t extend to discussing the state of the district’s finances. So, when asked who is handling the business operations in Fortson’s absence — an absence that’s occurring in the midst of constructing the district’s 2018-19 budget that will hit every taxpayer’s wallet and affect every school child’s education — there is no excuse for not answering directly.
Yet board members have repeatedly done so, one even indicating she’s been told that to comment at all would leave her open to being removed from the board. And Witte has, after first declining comment, offered only a vague statement that acknowledges she’s ultimately responsible for the proper operation of all district functions “working with our competent and dedicated staff.” Well, we’d hope so. But that still doesn’t reveal who’s actually handling the $32.7 million in public money entrusted to the school administration.
One proper question for the board and superintendent surely is whether the suspension has to do with those public funds. Thus far, only school board member Neil Moriarty has been willing to comment on that, and only to say the suspension “has nothing to do with financial issues.”
More troubling still is the behavior of at least one board member, who gloatingly told a Sentinel reporter during last Tuesday’s meeting that she wouldn’t be able to find out anything, because the board had just voted to seal the minutes of its nonpublic session on the matter.
Such taunting, childish actions convey more than disdain for the reporter. They reveal a contempt for the public and its right to know how its money is being spent and how decisions regarding its children are being made.
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:
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
The board of trustees met May 11, 2017, for their regular monthly meeting. The main topic of discussion was Skip Hurt’s proposal to expand the current library rather than construct a completely new building.
0:00:00 Call to order / pledge
0:00:25 Public input (none)
0:00:50 Approval of April Minutes
0:02:10 Treasurer’s report
0:03:05 Librarian’s report
transferring from vhs to dvd: interviews from town’s bicentennial in 1995
Tuftonboro central school student art Friday
Plant sale in June during town-wide yard sale. Also $10/bag book sale.
0:10:50 NEW BUSINESS
0:10:55 Discussion of Skip Hurt’s proposal to renovate/expand current building
Paul: If there’s potential for savings we need to pursue this
0:13:30 Gordon: Christie and I spoke and we have concerns about interior layout. Don’t believe bathrooms are currently up to code. Sceptic system is 47 years old. central air.
0:17:00 Gordon: In my heart of hearts I don’t want to do something just to do something. I want to do it right. I would under no circumstances go ahead without voter approval.
0:18:25 Gordon: mistake to go forward without town approval firm town funding. untenable.
0:19:03 Mary Ann: Agree. Can’t go forward without town approval.
0:20:30 Mary Ann: Applaud Skip. Exciting for me when he came in. Don’t want to spend money here when we already spent money on the other side of the road. Concerned about health issues renovating building.
0:23:35 Paul: what I like about Skip’s plan is it breaks the connection between us and the police building.
0:24:50 Gordon spoke with Anthony from SMP to get some cost estimates for developing a scope of work
0:32:45 Gordon: we should have another joint meeting with selectmen
0:37:30 Gordon: what are we going to do if we don’t do anything on this and we get to Town Meeting and there are two library articles?
0:37:45 Paul: and what do you say when someone gets up and say “you wouldn’t even spend a nominal amount of money to save us $1 Million?”
0:40:45 Public input
0:41:00 Joan Theve
0:43:45 Bob Theve
0:45:50 Steve Brinser
0:46:25 Carla Lootens
0:49:45 Steve Brinser
0:56:00 Steve Brinser
0:57:20 More New Business: Adoption of Town Harassment Policy
0:58:15 OLD BUSINESS
0:58:20 Capital Campaign Committee Activity
0:59:25 NH Library Trustees Conference
1:00:10 NEXT MEETING: June 8
1:00:45 Motion to Adjourn
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:
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.