Selectmen Lose Right to Know Suit, at Cost to Taxpayers of Almost $20,000

The selectmen have lost their lawsuit against Bob McWhirter and me. Carroll County Superior Court Judge Amy Ignatius issued her decision on August 8, finding that the selectmen cannot charge us a fee to inspect governmental records, whether they be electronic or paper. This is not an earth-shattering decision. I don’t mean to disrespect Judge Ignatius’s judicial ability, but the law states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records whether they be paper, electronic, or other format.” I honestly have no idea why the selectmen thought that meant they could charge us a fee to inspect governmental records.

But they gave it the old college try, anyway, and spent almost $20,000 of taxpayer money in the process.

The board at the time was Carolyn Sundquist, Bill Marcussen, and Lloyd Wood. Carolyn Sundquist has since left the board.

The selectmen have 30 days to appeal the decision.

David Taylor of Right to Know New Hampshire, summarizes the decision here:

The Town of Tuftonboro, N.H. lost its effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.

Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.

Selectmen’s Meeting August 7, 2017

0:00:00 Call to order / Pledge
0:00:45 PUBLIC
Chris Sawyer: Federal Corner Road
Max Ledoux: RTK 91-A
0:04:40 REVIEW AND APPROVE MINUTES
0:06:50 SIGNATURE FILE
0:10:10 Chief Adam Thompson (Fire Department)
Ambulance payment processor agreement
0:28:20 Adam refers to accusations that he misled people at Town Meeting
0:42:54 Town Meeting 1994 authorized FD to go outside town lines to assist other towns or states. RSA 167
0:44:12 Adam doesn’t want to bill other towns for the airboat.
0:47:40 Chip: If you send the ambulance and do the work, then do the transport so we can get the billing
0:52:50 RETURN TO SIGNATURE FILE
0:53:00 Electricity contract
0:55:20 SELECTMEN’S UPDATES (none)
0:55:40 CORRESPONDENCE
0:56:15 Which line in budget to expend money for GIllum Excavation to clean Dore property
0:57:00 Trustees of the Trust Funds letter: Library Capital Reserve Fund is specifically for a new building so can not be used for anything to do with the current building
1:01:45 Lloyd: No action we can take other than pass on the memo to the Library Trustees
1:02:10 Chip: Well, I think we need to rescind our previous vote to pay the bill.
Chip makes a motion
Bill: But we made commitment to pay the bill. It turns out we can use the capital reserve funds, but we can’t just say “oh, never mind.”
1:05:30 Lloyd lists options
1:07:00 motion passes to reverse previous vote to authorize payment.
Selectmen will invite Library Trustees
1:09:00 Chip to clarify about minutes: you can add things, only correct
1:09:20 Resignation letters from planning board members
1:10:50 subdividing old cemetery
1:14:15 PUBLIC COMMENT
Max Ledoux, asking for Kathy Sutherland: Why are you paying to clean the Dore property?
1:14:55 Adjournment

Patrick Harvie, Expert Witness, Bills Town $2,281.25

Patrick Harvie of Standish, Maine, doing business as HCCI in Derry, NH, has received $2,281.25 from Tuftonboro taxpayers in exchange for his “expert” testimony last month about “metadata” at the hearing for the selectmen’s lawsuit against Bob McWhirter and me (Tuftonboro vs McWhirter/Ledoux). The selectmen sued us because we made Right to Know requests for public documents.

The legal fees that taxpayers of Tuftonboro have paid to the selectmen’s attorney, Rick Sager of Ossipee, for this case currently total $16,336.12. Harvie’s payment, made on July 11, brings the total amount of taxpayer money expended by the selectmen in their lawsuit to at least 18,617.37.

The selectmen tried to charge Bob and me a fee to inspect governmental records, even though the Right to Know law (91-A) states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”

The amount the selectmen tried to charge me to inspect documents was $6.50. They have spent nearly 3,000* times more than that so far on this lawsuit.

When prompted by Sager in court, Harvie boasted under oath that he knows “just about everything about how the internet works.” Even so, Judge Amy Ignatius rebuked him for using a monitor that she could not see. “Can I ask, since I can’t see any of it — I know there’s something up on the screen, but it’s not readable from here. …For my sake, and the sake of the record, if you want to point something out, a phrase like, ‘as you can see,’ doesn’t do much for me because I can’t see anything. So you need to really explain what it is.”

Harvie’s testimony was further made irrelevant when Jim Cowles, representing Bob and me, objected to his testimony on the grounds that neither Bob nor I had requested any metadata and did not contest that metadata exists. Judge Ignatius agreed that the testimony about whether metadata exists was unnecessary and asked that Sager move on. Seeming flustered, Sager then said, “Yes. K. So, uh, I guess your presentation is over.”

*The total they have spent is $18,617.37. What they wanted to charge me was $6.50. 2,864.21 * $6.50 = $18,617.37.

Selectmen’s Meeting with PD Chief Shagoury August 4, 2017

BOS meeting with Police Chief Andy Shagoury
0:00:00 Call to order / Pledge
0:01:00 performance reviews
0:01:40 new cruiser
0:02:25 Union Wharf parking ordinances
Town Meeting 1989 no overnight parking
selectmen 2003 two hour maximum
0:05:00 19 mile bay parking
0:10:00
0:15:25 Union Wharf Dock: conflicting signs
0:23:45 Community policing
0:28:00 (or thereabout) Drug take back days
0:37:25 Carrying firearms on school grounds — constitutional right. Police wouldn’t remove someone unless they were disorderly.
0:39:00 Firearms training
0:44:50 Bill: Police are people too
0:45:30 Police in schools
0:51:30 Lloyd: people say “Andy does a great job on NPR”
Lloyd: We need you to make a 90 degree turn to community policing. You need to do this for us.
0:57:30 Coverage when Andy’s out of town for Chiefs of Police Association business
1:02:00 NEW POLICE STATION
1:09:00 Lloyd: what message are you hearing from the selectmen over the last hour?
Andy: Communications.
Lloyd: Public relations?
Andy: Sure.
1:16:25 Lloyd: My expectation is there will be a substantial effort on your part

OTHER BUSINESS (Not with Andy)
1:16:45 Old Woods Road cleanup (The Dore property)
motion to approve bill for $1,200 to Gillum Excavation for clean up
1:18:10 motion to adjourn.

Union Leader: “Four Planning Board Members Quit in Tuftonboro”

Using tuftonboro.net as a source, the Union Leader reported Thursday:

TUFTONBORO — Four members of the Planning Board have resigned in the wake of the selectmen’s decision not to reappoint their chairman.

Following a 1-2 vote on July 24, veteran land use board member Fenton Varney announced his resignation and fellow members John Lapolla, Steve Brinser and Tony Triolo subsequently notified the town that they too were stepping down.

The issue came to a head after Chris Sawyer, who has served on the land use board since 2008 and most recently as chairman, received a letter from selectmen on July 11 thanking her for her service to the town as her term had expired.

She subsequently sent a written request to the board asking to be appointed to the Planning Board detailing her years of service, the benefits of continuity and her accomplishments, including streamlining the application process, making it more user-friendly and most recently spearheading the update of the town’s master plan.

During the July 24 meeting, a recording of which is posted on Youtube, both Varney and Triolo praised Sawyer’s leadership and work ethic on the board and urged selectmen to reappoint her. According to Triolo, Sawyer has always had the best interest of the town at heart.

The video of the meeting on YouTube was recorded by me and is available here:

Bill Marcussen and Lloyd Wood Vote Chris Sawyer Off Planning Board

0:36:05 CHRIS SAWYER
Requests reappointment to board
0:38:32 Fenton Varney speaks
0:41:25 Tony Triolo speaks
0:42:30 Lee Ann Hendrickson speaks
0:43:10 Tony & Fenton again
0:44:30 Steve Brinser: Why’d this happen?
0:45:42 Chip: “Tension great enough that previous vote happened.”
0:46:20 Guy Pike: Did you at any point in past year attempt to deal with this tension?
0:46:49 Sue Weeks: When did you make the decision?
0:48:00 Fenton: I never filled out a paper to be reappointed
0:48:28 Lee Ann: in the past I have prepared a memo on behalf of members who express a desire to be reappointed.
Lee Ann: Did you send a letter to John Cameron?
0:51:20 Lloyd: “in the lack of a motion let’s move on.”
0:52:35 Chip: we have to have a vote
0:54:39 Bill: Planning Board mishandled Master Plan survey mailing by sending it from General Store post office instead of using town office postage meter from Melvin Village
0:57:57 Chip: motion to reappoint Chris to Planning Board
0:59:10 Chip: Aye. Bill & Lloyd: Nay
1:00:00 Fenton resigns
1:00:25 Guy: “COWARDS!”

Later, during public comment, Guy Pike called for Bill and Lloyd to resign:

 

The video of the full meeting, with timestamps, is available.

Richard Sager’s Haul from Suing Residents for Exercising Rights: $16,336.12

The selectmen have paid Richard Sager, of Sager & Smith in Ossipee, NH, $16,336.12 in taxpayer money from the residents of Tuftonboro to sue Bob McWhirter and me for the supposed crime of exercising our right to know under RSA 91-A and the New Hampshire Constitution, a review of Sager’s invoices reveals. The $16,336.12 that the selectmen handed over to Sager does not include charges for an “expert” witness, Patrick Harvie, whom Sager brought in at $125 an hour to explain to the court that emails have metadata, a fact we never contested and that was irrelevant to the case.

In November, 2016, I made a Right to Know request to inspect some emails. The selectmen attempted to charge me $6.50 to inspect the emails, even though the law unequivocally states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” When I refused to pay the $6.50, the only amount they ever tried to charge either Bob or me, the selectmen (at that time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) sent a sheriff’s deputy to our doors on a Sunday morning to serve us each with a lawsuit: Town of Tuftonboro vs Bob WcWhirter & Maxim A.A.L Blowen-Ledoux. (I have a weird name, so sue me. Wait, no; don’t. That’s just an expression!)

$16,336.12 for $6.50.

Think that one through the next time Selectman Bill Marcussen says he has a fiduciary responsibility to the town.

Sources:
Sager invoices November 2016 to May 2017
Sager invoices June 2017
Sager RTK fees

Selectmen’s Meeting July 24, 2017

0:00:0 CALL TO ORDER / PLEDGE
0:00:45 PUBLIC COMMENT
Max Ledoux: You’re breaking 91-A in regards to nonpublic meetings
0:14:10 PUBLIC HEARING: Thompson-Moulton Cemetery “unabandonment”
0:14:50 Sue Weeks: legally there are two cemeteries
0:20:49 Scott Thompson: no problem with Moulton Cemetery being abandoned legally. We’d be happy to also maintain it.
Cross talk
0:25:00 suggestion to continue meeting
0:30:40 Lloyd: It’s a cemetery!
0:34:35 Bill: motion to “unabandon” both cemeteries.
0:35:25 motion passes
0:35:40 APPOINTMENTS
0:36:05 CHRIS SAWYER
Requests reappointment to board
0:38:32 Fenton Varney speaks
0:41:25 Tony Triolo speaks
0:42:30 Lee Ann Hendrickson speaks
0:43:10 Tony & Fenton again
0:44:30 Steve Brinser: Why’d this happen?
0:45:42 Chip: “Tension great enough that previous vote happened.”
0:46:20 Guy Pike
0:46:49 Sue Weeks: When did you make the decision?
0:48:00 Fenton: I never filled out a paper to be reappointed
0:48:28 Lee Ann: in the past I have prepared a memo on behalf of members who express a desire to be reappointed.
Lee Ann: Did you send a letter to John Cameron?
0:51:20 Lloyd: “in the lack of a motion let’s move on.”
0:52:35 Chip we have to have a vote
0:54:39 Bill: Planning Board mishandled Master Plan survey mailing by sending it from General Store post office instead of using town office postage meter from Melvin Village
0:57:57 Chip: motion to reappoint Chris to Planning Board
0:59:10 Chip: Aye, Bill & Lloyd: Nay
1:00:00 Fenton resigns
1:00:25 Guy: “COWARDS!”
1:01:46 DEPARTMENT UPDATES
Chief Thompson (FIRE&RESCUE)
1:13:30 Chief Shagoury (Police)
1:19:00 felony burglary suspect under influence of drugs, had to be taken to hospital then arrested.
1:23:10 Chip: Why are you getting protective gear for fentanyl? Is there a need reflected in crime statistics?
Andy: A lot of the statistics aren’t necessary marked as drugs but the underlying cause is drugs
1:30:49 REVIEW AND APPROVAL OF MINUTES
1:31:05 July 10 Public
1:32:25 July 14 Public
1:33:32 July 10 nonpublic (no changes)
1:33:58 SIGNATURE FILE
1:36:45 Chip next year we should get the discounted oil price for everyone in town
1:36:40 $7,896.75 to SMP for plans for the proposed library renovation
1:40:30 Appoint John Cameron to Planning Board
1:41:05 SELECTMEN’S UPDATES
Bill: Old Homes Days
1:41:58 Chip: Welfare, ambulance
1:42:30 Lloyd:
1:48:05 Chip: Health Insurance provider wants a meeting
1:49:20 Talk about Road Agent
1:50:20 property cleanup
1:52:00 utility poles in poor repair
1:54:45 CORRESPONDENCE
1:57:00 PUBLIC COMMENT
Elissa Paquette
1:57:45 Sue Weeks: Ambulance
2:06:00 Max: Mutual agreements
2:07:40 Elissa: Have other towns sent Tuftonboro bills for mutual aid?
2:08:20 Liane: Planning Board — As staff for PB how do I proceed. If we have no quorum what happens?
2:09:55 Guy: I apologize for outbreak. Bill and Lloyd should resign.
Joe Kowalski: Spectrum
Max: 91-A violations

Bill Marcussen: We Removed Chris Sawyer from Planning Board Because Postage Stamps

Claiming that Chris Sawyer had “bucked the system,” selectman Bill Marcussen cited the planning board’s use of postage stamps to send out the Master Plan survey as a reason she should be removed from her position. No, seriously. She’s out because the planning board used stamps… to mail letters. (According to Bill.)