"Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.
Alexander Hamilton

Thursday, April 30, 2015

Eye on illegal meetings: City attorney gives Right to Know tips. “There are tremendous implications that would come for somebody hitting 'reply all,'”

I was forwarded this article by a reader in response to last Thursday's ( April 23rd) BoS 7pm meeting ( video here on the Town website) and my concerns about using email to communicate and discuss business over which the BoS have control.

Seacoast Online

PORTSMOUTH — The City Council on Tuesday night got an education on the state's Right to Know law, most notably how it may have unknowingly clashed with the measure while recently communicating through e-mail.
The work session, which lasted slightly more than an hour, was held to allow council members to further understand the law, which states: “Openness in the conduct of public business is essential to a democratic society.”
City Attorney Robert Sullivan led the council through the work session Tuesday night, paying close attention to the language of the law, as well as the possible ramifications should anyone working for the city or elected by voters violate it.
“Any person who feels aggrieved that the city government may have violated the Right to Know law, either by having an illegal meeting, not keeping minutes or not producing public records, has the right to bring that action to the Superior Court,” Sullivan said.
If that person or party prevails in court, Sullivan said they then become entitled to have their legal fees paid for by the city. Sullivan said the court could also invalidate any action the City Council made while in violation of the Right to Know law.
In addition, Sullivan said any city employee or elected official who may have violated the law could be subject to a civil penalty between $250 and $2,000, and be obligated to pay for legal fees.
“This could actually be pretty serious stuff and cost somebody a lot of money,” he said. “This is one of the reasons we should all be thinking about these things all the time.”
While the meeting was meant to be informational, a bulk of the discussion at Tuesday night's work session centered on a recent e-mail sent by City Manager John Bohenko to the nine-person council and whether councilors who responded to the e-mail could have unknowingly caused the discussion to be subject to Right to Know.
As one of the councilors who responded to the e-mail, Esther Kennedy said she was simply trying to ask a question and was in no way trying to clash with the law.
Kennedy said she asked the question of Bohenko, but decided to reply to all of the other councilors on the list.
Bohenko also addressed the subject, saying he only attempts to communicate with councilors through e-mail as a way of making them aware of issues taking place throughout the city.
“I, as city manager, need to communicate with the mayor and councilors,” Bohenko said. “I'm not looking to get them to make any decisions.”
Bohenko said ultimately the lesson to be learned by councilors is not to reply to the e-mail and include all of the other councilors.
“Don't 'reply all' and I think we'll be OK,” Bohenko said.
Sullivan concurred.
“There are tremendous implications that would come for somebody hitting 'reply all,'” Sullivan said.
Tuesday night's work session also led to some surprise revelations on how the law applies to councilors taking part in neighborhood meetings or commenting on stories online.
Councilor Jack Thorsen asked at the end of the work session how the law applies to councilors who make comments online in a public forum such as on a news Web site or on social media.
“Is that now a meeting?” he asked.
Sullivan responded with, “Frankly it sounds like a meeting to me.”
Thorsen also questioned whether councilors who either participate in a news story or attend neighborhood meetings could be in violation of the law should a majority of them partake.
Sullivan said it would ultimately depend upon the topic of such a story or a meeting and whether that discussion involved councilors making some sort of a decision.
“It would not be a stretch to find that you were having an illegal meeting,” Sullivan responded.


Joe Cormier/jcormier2@myfairpoint.net said...

Legislatures make state laws ... Courts interpret state law ... and attorney's represent clients regarding law. If law was simple, there wouldn't be a need for attorney's.

A layman can be pro se in court, and prevail. A Juris Doctor doesn't mean an individual is infallible. The courts aren't infallible either, but they rule.

RSA 91-A

Go to page 6 of the URL at the bottom and read for yourself what the legal definition of a "Meeting of a Public Body" is, according to a NH Attorney General.

This town is not immune to "back door deals", some even sucking-in the legislative body at a later date, under some guise for the public good, while the true intention goes unnoticed. Most of the "250-300 members" of the MoBo legislative body, oblivious.

The BoS are not judges, nor attorney's, but elected officials, that are doing a service to the town. Some meeting shenanigans are more offensive than a "reply all" on email.

" ... comments online in a public forum such as on a news Web site or on social media.

"Sullivan responded with, “Frankly it sounds like a meeting to me.”

Bullsh*t is what that sounds like to me.

That attorney should be asking for a court opinion. Maybe the judge will instruct him on the not so subtle parts of the US Constitution v. his reading of NH RSA 91-A.

The onus is on "public body", "public meetings" and without violating individual constitutional rights to free speech, not grand-standing on RSA 91-A.

What is the subject matter being discussed? Because a public official comments on how many sheets of toilet paper he/she used, constitutes a "meeting"? Didn't he read "QUORUM"?

Get real! Pray that kind of attorney never becomes a judge!

Too bad MoBo doesn't revisit SB-2 and Official Budget Committees with as much fervor.

Why is it so difficult for some BoS to refrain from kibitzing, and keep the chatter to the noticed meetings?

Will there be a test after the RSA 91-A training? We're not just talking BoS ... can you just envision all of the committees ... they are subject to this statute ... maybe they'll all quit! Maybe that attorney can scare them more, by telling them again how much money it can cost them.

I'm sure a court of law will deem them real bad hombres and determine they should be punished severely. Off with their heads ...

A NH Atty. General


RSA 91-A


NH Bar


A Law Firm


Even Governor's Office ...


Eric Taussig said...

Beyond illegal meetings, because the public is unaware of them, as there is no notice and opportunity to hear what the public body is discussing, is the issue of public input.

In NH, unless a noticed meeting has an agenda item for public discussion, or there is a "public hearing" required under either federal (Administrative Procedure Act) or state law (required for proposed legislation or changes in administrative regulations), the public is still excluded from public input.

Individuals can only write or call their legislators and/or use their future vote as the ultimate sanction for their unhappiness.