Feb. 6, 2009 - Draft Meeting Minutes: NH Right to Know Oversight Commission

Right to Know Law Oversight Commission Minutes
6 February 2009
Draft minutes to be considered for approval 20 March 2009.

Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; Rep. Jessie Osborne, Rep. Kim Casey, Rep. Lucy Weber; Jim Kennedy, Esq., AG’s Office; Ron Rodgers, Esq., public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; James Pitts, NHMA;

Also Present: Bernard W. Folta; William L. Chapman, Orr & Reno, P.A; Rebekah Becker, NH Banking Department; Rep. Rick Watrous

The meeting was called to order at 10:09 am. The Association of Counties is meeting today, so Carol Holden and Tom Reid will not be present.

Filling of Vacancies: Rep. Casey has contacted the NH Association of School Boards to ask that they appoint a representative. Rep. Garrity has contacted the NH Association of School Administrators, and they will enquire about Dennis Pope. Kevin Shea, the telecommunications representative, is now with Fairpoint. Rep. Garrity spoke to him and he said that his duties will not allow him to attend regularly. He said his assistant would be a good addition, and will be able to attend meetings in the future. Peter Croteau, the IT member, had thought that his membership on the Commission was tied to his former job description, but it his expertise that is the qualifier, Rep. Garrity will contact him regarding his continued willingness to serve.

Minutes: The minutes of the 16 January meeting were amended to substitute Tom Reid’s name for that of Jim Reams, and with that amendment were unanimously approved. Rep. Garrity has set up a blog for the Commission at http://nhsunshine.blogspot.com/ . The minutes will be posted there, and he will discuss a link from the Legislature’s official web site with Information Services.

Reduction of Quorum: Sen. Barnes has gone to the Senate Rules Committee and gotten a waiver, allowing him to file a bill reducing the quorum requirement to seven. The bill is now in Legislative Services and can be signed on.

Status of House Bills: Rep. Weber reported on the status of bills currently in Judiciary or Legislative Administration. Judiciary has held hearings on the following bills:

HB 89, regarding an exception to the law for records involving suicides
HB 206, the Commission bill regarding retention of records beyond the required date
HB 425, the Commission bill on remedies proposing fines on individual officeholders
HB 135, the bill requiring invalidation of all decisions taken in violation of the law
HB 266, the exception for certain voter records
HB 53, the Commission revision on the definition of public body
HB 379, the collective bargaining revision when two boards are involved.

Hearings have been held on all these bills. A subcommittee has been named for HB 425, and HB 379, and Rep. Weber assumes that several of the other bills, for example, HB 135, will come to that subcommittee as well. She will let the Commission members know when subcommittee work sessions or full committee executive sessions are scheduled.


With respect to HB 379, collective bargaining when two boards are involved, Rep. Smith asked why that would not be covered by the collective bargaining provision already in the statute. Rep. Weber stated this bill was requested by the City of Nashua, where it became a problem. There, the financial provisions of the collective bargaining agreement with the teachers is voted on by both the School Board and the Board of Aldermen. After many contract proposals were agreed to by the teachers and the School Board, only to be defeated by the Board of Alderman, a meeting was held at which both boards were present in their entireties. Rep Casey said the situation should be covered by the current language. Concern was expressed by several members that legislation should not be enacted to cover one particular problem. Mr. Chapman noted that a charter may always provide more openness than is provided in the Right to Know law. There was some speculation that the issue was created by the terms of the Nashua charter, not the Right to Know law. Mr. Pitts noted that the problem extends to more than just Nashua. Concern was expressed that lay people have a hard time with the distinction between the gatherings for purposes like collective bargaining or consultation with counsel, which are not meetings at all for purposes of the Right to Know law, and which need not be posted, and non-public meetings, which must be posted, but which the public may not attend. There is need for greater clarity on this subject, which may be explained further when the Attorney General’s memo on the subject is next updated.

Rep. Weber will inquire further into the details of the Nashua issue.

The committee then discussed HB 349, on the confidentiality of legislator emails, currently in Legislative Administration. Rep. Weber will let the Commission know when that bill is scheduled for hearing. The House has adopted a Rules change to make it clear that the record on each individual bill will not contain emails sent to individual legislators. Paper copies of filings are now required. Nothing prohibits members from printing out paper copies of emails sent to them an asking that they become a part of the record.

Mr. Kennedy outlined the case in which he represented Speaker Norelli and Rep. McLeod when copies of emails sent to them individually were sought. In that case, he argued, and the court agreed, that they were individuals, and not a public body, and that they were not subject to the Right to Know Law. Mr. Folta said he had wrestled with this issue and that he had created a disclaimer which he includes at the bottom of his communications. He provided the members with copies. His purpose is to raise awareness. Mr. Kennedy said that the mailing of an email, even to all members of a public body, would not trigger the Right to Know law, as it still would not create a meeting. It is only a serial conversation among a quorum of a body, whether by email or otherwise, that triggers the law. Mr. Folta’s language does not change that.

(Note: The actual language of the change, which was not available at the meeting, is “Only paper copies of letters, statements or other documents delivered by a member or other interested party to the committee chair, vice chair, or committee clerk in hand or by US or commercial mail shall constitute a filing with the committee and made part of the public record.”)

Rep. Garrity summarized the contents of four emails he has received and handed paper printouts of the emails to the clerk for the Commission’s files.
Judith Krahoulic, 1/23/09
Jorge Mesa-Tejada 1/24/09
Kathy 1/24/09
Bill Whalen 1/28/09

Rep. Rick Watrous, prime sponsor of HB 328, proposing a study committee on non-profit corporations receiving most or all of their funding from public sources and performing governmental or semi-governmental functions, gave a presentation on the motivation behind his bill. The issue before the Commission is whether the issues raised by these non-profits is best addressed in a new study committee or by the existing Commission.

Sen. Barnes asked if any of the persons involved in the City of Concord controversy had been voted out of office, or was any outcry made? There was a petition, and some people spoke at the City Council, but not enough get involved. The one person who thought the matter should be investigated was conflicted out and could not.

With respect to whether the issue should best be addressed by the Commission or a study committee, Rep. Weber read the charge to the Commission in RSA 91-A:11, which speaks of electronic communication and the Hawkins decision, and wondered, as a new member of the Commission, whether the mandate was broad enough to include the current issue. Mr. Judge said that under the heading of Duties, RSA91-A:13 (IX) , includes any other matter the Commission deems relevant. LWM said that follows the original charge, and RSA 91-A:13 parts I through VIII, all of which talk about electronic communication. Although that might be a discussion for another time, it has significant bearing on what to do about the issue raised by Mr. Watrous. The issue was raised in the last term in the legislature, and RSA 91-A:1-e was added as a result, but it covers only a very narrow set of circumstances. It is too narrow to include the City of Concord.

Mr. Kennedy said that Judge Conboy’s opinion in Rep. Watrous’ case against the City of Concord followed the test set out in the Firefighters Case. In Fairbanks, the court looked at five factors to determine if a non-profit entity was subject to the Right to Know law. In the case against the City of Concord, only one factor was found. The case against the City of Concord was the subject of an unsuccessful Motion to Reconsider, but was not appealed for review by the NH Supreme Court.

Mr. Judge said there was a long history with Concord and CCTV. Is this an unusual setup for a community TV station? In Manchester, the city and educational channels are done through the city, and are subject to the Right to Know law. There is a separate public channel, presumably not subject to the Right to Know. Some towns have no public access channel an all the cable money goes to the general fund. Ms Osborne said the function of CCTV was not for the government but for the citizens. Many groups do shows on a purely volunteer basis. Citizens may have their own shows at any time. Mr. Pitts said that the Lakes region has a fourteen town consortium.

Rep Watrous said his goal is to come out with a clear definition so the public will know what organizations are covered.

Mr. Folte said there is an analogous situation in Claremont re public/private funding for economic development. A corporation has been established to establish a new Claremont Community Center, the city and the school are involved, and the city has given $1,000,000 to get the project started. Citizens may be asked for a $3,000,000 bond issue, but citizens cannot get the records because the corporation is private. This is a very political issue, and it might require more law.

The next meeting will be held on March 20th, 2009, at 10:00 a.m.

The meeting was adjourned at 12:03 pm.

Respectfully submitted,
Lucy Weber