Saying that they had met with Carolyn Sundquist “at this table” in a “series of meetings,” Dr. Ted Steinman and his wife, Carol, accompanied by their attorney, Jeremy Eggleton of the law firm Orr & Reno, described to the board of selectmen (left to right: Chip Albee, Bill Marcussen, Lloyd Wood) on Monday, April 24, how last year they had sought and “followed directly the town’s directions” when placing boulders along the edge of Brown Road on their property in order to block access to Lower Beech Pond from boat trailers and bob houses.
Carolyn Sundquist’s emails concerning Brown Road were obtained by Guy Pike through a Right to Know request last December. In one email to Road Agent Jim Bean dated August 25, 2016, Carolyn Sundquist wrote “I advised the Steinmans to go ahead with placing boulders in front of the access.”
The hearing in the lawsuit that the selectmen filed against Bob McWhirter and me has been rescheduled once more. The new hearing date is April 18 at 2PM. This time it was postponed by the judge, and only by one day.
The selectmen are dragging us into court in any attempt to avoid their responsibilities under RSA 91-A, the Right to Know law.
1:15 First appointment: Gerry Hammer / Jack Parsons
5:00 Intent to excavate permits: discussion of ordinances in light of new articles passed at Town Meeting
5:10 — Jack Parsons
7:00 — Chris Sawyer, PB chairman weighs in
12:30 Review of pending intent to excavate paperwork
14:00 — motion to approve with provisions that selectmen can rescind. 3-0
15:00 — Signing paperwork
15:50 Jack Parson Building department update (the only damage to town property from Storm Stella was a few shingles blew off town house roof)
16:35 Ben Ladd — Mirror Lake boat ramp grant that was passed by Town Meeting. Discussion of contractor bids.
21:45 Chip would like to set a policy for putting contracts out for bid in the future, but not for this project since it’s already in process.
23:50 motion approval of project. passed 3-0 and Lloyd signed the paperwork
25:30 Clay Gallagher Transfer Station update & household hazardous waste collection update (july 29 & august 5). Pamphlets at transfer station.
44:15 Transfer station workers would like to work half day on Easter. They would receive holiday pay + half day.
50:30 Chip raises issue of different rates for contractors at transfer station
51:25 Review of 3-27-17 meeting minutes
53:00 Continued business
53:10 — Board committee assignments
Chip: Budget, welfare, Parks & Recreation
Bill: Planning, Old Homes, Energy, CIP Joint loss, milfoil, Planning
Lloyd: emergency planning, conservation, TACC, watershed
57:12 Board meeting schedule. Bill doesn’t want more meetings. Chip says if there aren’t more meetings, then the meetings have to be better organized. Chip doesn’t like relying on attorney client privilege as a way to subvert open meeting requirement to respond to RTK. Lloyd is ok with meeting every Monday. That way the meetings will be shorter, too. Lloyd suggests meeting once a month at 7PM. Also at different locations around town. Next meeting Friday at NINE AM.
1:06:45 Brown Road
Chip “I don’t know how you got into; well, I do know how you got into this mess.” Says to direct Road Agent to remove the rocks.
Bill: rocks clearly within right of way.
Chip: problem I have with this is it was all done without a vote.
Chip: enormous amount of legal bills in this town, and this is one of the reasons why.
Lloyd asks for input from public
1:17:20 Sandy Knoll Road
1:23:30 Selectmen’s update
1:23:40 Chip looked at the tree on Union Wharf Road. Chip says it’s not on town property, but is in town right of way. Chip thinks it’s health and not a danger.
1:25:12 Bill went to workshop on town roads. If someone wants to build on a property on Sandy Knoll Road, they’ll still have to get a building permit, and the governing body doesn’t have to approve it. Noted with sadness the passing of Steve Honeycutt, town Sextant.
1:33:00 Lloyd met with Mark Howard and others to tour three areas of concern in town on state roads: Tuftonboro Corner, 109/109A, and Mirror Lake narrows.
1:42:50 Appointments to Agricultural Commission. Approved.
1:44:35 Motion to appeal all yield taxes. Perchanski. Bob Wood. Alan Blazek. 3-0
1:47:23 Intent to cut. Blazek. Perchanski. 3-0
1:48:42 Request for change in employment compensation. (RETROACTIVE to January 1, 2017.) Tabled.
1:51:30 Other business
1:52:00 Right to Know from Ed Comeau
1:58:15 Chip “I don’t know what Comeau’s after.”
1:59:30 in past Tuftonboro had a former employee who was still covered.
2:07:45 Chip says they need to set a price per copy policy at a market rate.
2:09:45 Chip need to respond to Comeau saying the board will working on the request.
2:10:40 public input
2:10:50 Elissa Paquette question about intent to excavate and the board wanting to have an addendum allowing the to revoke permit.
2:15:06 Charlotte Allen: NarCan training opportunities
2:16:32 Carla Lootens: Wanted to make sure town won’t give anything to Comeau unless the selectmen’s attorney, Richard Sager, has looked at it.
2:17:05 Gordon Hunt: Was happy selectmen were not giving in to Comeau just because he has an attorney.
2:17:35 Steven : follow up Brown Road. Why did property owners place rocks?
Max Ledoux: To clarify, Carolyn Sundquist told Steinmans it was ok.
Elissa Paquette jumped to Carolyn’s defense.
More info on Brown Road:
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.)
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:
And here is what the selectmen provided for 2017:
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.
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.
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:
- 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;
- 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.
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.