Breaking News: Petitioners file “Motion for Reconsideration” in Belknap County Right-to-Know suit.

THE STATE OF NEW HAMPSHIRE
BELKNAP, SS                                                                                  

SUPERIOR COURT
Doug Lambert and Thomas A. Tardif
v.
Belknap County Convention
No. 07-E-0140
PETITIONER’S MOTION FOR RECONSIDERATION
            NOW COMES the petitioners Doug Lambert, ProSe and Thomas A Tardif, ProSe motion for reconsideration in the above entitled matter, and in support thereof, the Petitioners say as follows:
            “A motion for reconsideration allows a party to present ‘points of law or fact that the court has overlooked or misapprehended.’” Barrows v. Boles, 141 N.H. 382, 397 (1996)

            The parties provided the Court with all relevant dates and documents pertaining to Petitioner’s right-to-know request in its petition and at hearing.  For the following reasons, the motion for reconsideration should be granted;

Fact and Law

1.      The court acknowledged that ‘On 29 May 2007, the Convention met to discuss the vacancy created in the Office of Belknap County Sheriff, occasioned by the resignation of Sheriff Dan Collis. The Convention voted to go into a nonpublic session pursuant to RSA 91-A:2 to discuss the process for filling the vacancy.(Emphasis added)

 

 

The honorable Court erred when it overlooked or misapprehended the fact that this is a violation of the right-to-know, and is clearly indicative that an injunction was in order to restore the major flaws in appointing an interim Sheriff, which is the contributing action that brought about this action.  RSA 91-A:2 is not relevant to “nonpublic sessions”.  However, it is clear that the purpose for entering nonpublic was to discuss the “process”.  The process, synonymous with strategy or plan intended and in fact, was how to proceed with the appointment of the elected official.  Clearly, a process, strategy or plan is not embraced by RSA 91-A:2, nor RSA91-A:3, I,(a)  Nonpublic Sessions. “Bodies or agencies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II”.
1.      The court acknowledged that ‘On 11 June 2007, the Convention met again and conducted interviews of candidates for the position in a nonpublic session, and determined two finalists for the position of sheriff.
          The honorable Court erred when it overlooked or misapprehended that for a second time, no motion was made to enter nonpublic session in accordance with RSA 91-A:3, I, (3).  Nonpublic Sessions.  Further, the minutes of both nonpublic meeting are not separate from those of the public meeting, as required.  Further, the list of questions and answers is not inclusive to any minutes, such as they are. This is a clear and unambiguous violation of RSA 91-A:4, I-a, RSA 91-A:5.  All applicants, upon filing to fill the unexpired term of Sheriff Collis, contemporaneously waived all rights to nonpublic session.  This is an appointment.  Once elected, no “official” can be fired by the electorate or its representative convention.  Nor, if impeached are they eligible for unemployment benefits.  Whoever an appointee may be, once appointed, the appointing body cannot terminate that official.
2.      The honorable court erred when it overlooked or misapprehended a fact that it is unknown what the votes, in nonpublic session, were to ratify or authenticate the list of seven, which was reduced to two finalists that ultimately were announced in open session.
3.      The court erred when it denied the petitioners motion for injunctive relief.  In so doing the court overlooked or misapprehended the fact that the petitioners were denied a fundamental remedy afforded them per RSA 91-A:8, II to invalidate an action the Convention took at not one, but three meetings held in violation of the provisions of NH’s Right-to-Know Law.  The derelict helter skelter circumstances in fact justify such invalidation.  Absent the injunctive relief, it has the effect of rendering the petitioners’ action moot.
4.      The honorable Court’s fatal flaw is overlooking or misapprehending the multiple violations clearly identifiable in the petitioners’ attachment and subsequent exhibits which clearly document a majority of the members, being ill advised– led or with premeditation, had placed themselves above the Law.  Rather than being Law makers, they became Law breakers.  This body acted in bad faith in refusing to allow access to a public proceeding.  Clearly they felt it would be easier to ask forgiveness after the action than to comply with the Law.
5.      The court erred when it overlooked or misapprehended the legislative intent of  RSA 91-A:3 II, which states, “Only the following matters shall be considered or acted upon in nonpublic session …(b) The hiring of any person as a public employee”  (Emphasis added).
          RSA 91-A does not allow a nonpublic session to make appointment to fill unexpired terms of elected “officials”. TITLE VI, PUBLIC OFFICERS AND EMPLOYEES CHAPTER 91-A,  ACCESS TO PUBLIC RECORDS AND MEETINGS is not ambiguous.  The title makes a clear distinction between “Officers” and “Employees”.  Section II (b) does not embrace Officers because they are either elected, or appointed to an elective position, when a vacancy in an unexpired term arises.  A Belknap County Sheriff is no,t and never has been, “hired”.  The County Convention is not empowered by the legislature to hire any employees.
          The legislative intent is clear when viewed in total:  RSA 21:34 Filling Vacancy. – The term ""vacancy shall be filled for the unexpired term”, when used in connection with appointments … shall be construed to mean that the successor shall be commissioned for a term equal in length to the unexpired balance of the term of his predecessor …” (underline emphasis added)
6.      The honorable court erred when it overlooked or misapprehended that the Convention, the appointing authority, cannot remove any official, much less the Sheriff, even for misconduct. Only the Superior Court may do so and only for misconduct.  The Court or Convention has no jurisdiction over employees who may be hired and fired by “officials”. RSA 661:9, IV
7.      The court erred when it misapprehended that “the Convention went further than the Right-to-Know law required, conducting interviews with the two final candidates in public and voting at the public session, albeit by secret ballot.”  A succinct and concise summary of the events in this most egregious action is as follows:
a.    29 May 2007,6:30 p.m. the Belknap County Convention held a meeting.  Following the Close of a Public Hearing at 7:25 p.m. by motion of Rep. Boyce and second by Rep. Pilliod to enter a non-public session per RSA 91:A-2.  This is an undisputable violation of RSA 91-A:3, (a) and (b).
            The minutes of the non-public session, which are included within the public session minutes- again, in conflict with the Right-to-Know law, indicate strategy and actions regarding the seven applicants. They further describe that a sub-committee was established to prepare questions and a score sheet and intend to have a meeting on Monday, June 11, 2007 at 6 PM at the County Complex.  The document referred to—the questionnaire– is not attached to any public record.  The Convention came out of non-public session but did not seal its minutes or any documents discussed
b.
    On 11 June 2007, 5:00 p.m. the Sub-Committee met to prepare procedures and questions for interviewing applicants. No record indicates a vote was taken by the committee to adopt the proposed questions and process.
c.    On 11 June 2007, 6:00 p.m. the County Convention came to order to interview Sheriff applicants.
             A motion by Rep. Millham of the sub-committee was made, but did not receive a second.  In spite of the absence of a second, the motion was discussed.  The list of Questions was amended to include four items:  1). Ask each candidate if their name may be announced. 2) Wait a week to accept public input. 3)  Change finalist to not less than two.  4)  There shall be a public in-put period of at least a week.
             Following the unanimous vote, absent any reference to RSA 91-A, the NH Right-to-Know law, the Convention entered Non-Public Session, a clear and unambiguous violation.  The body commenced interviews at 6:35 p.m.  The interviews concluded at 9:15 p.m.  They deliberated in secrecy till 9:45 p.m. and then unanimously voted to come out of non-public and adjourned the public meeting at 9:45 p.m.
8.      The action of 25 June 2007, regarding the “secret paper ballot,” has been clearly defined by this honorable Court as a violation of the Right-to-Know. The minutes of June 11^th  state, under the described “Interviewing Process”, point number 5 that they will “Appoint a person to fill the unexpired term of Sheriff.” (Emphasis added)
9.      The honorable Court erred when it overlooked or misapprehended the answer to the petitioners’ motion by the Belknap County Convention, Stephen H. Nedeau, Chairman (not his or its representative) entitled MOTION TO DISMISS, paragraph “G”.  “The County Convention specifically proceeded in the manner provided by RSA 91-A:2, II. There is a good public policy reason for the process to be exempted.  The process protects and limits animosity being created in which an elected individual chosen to fill the unexpired term may not personalize their election in subsequent engagements between that official and the County Convention which authorized the … .”(Emphasis Added)
          This statement, effectively under oath, strikes at the very heart of the Right-to-Know law.  At no time, on any occasion or meeting, has the Convention cited the required RSA 91-A:3, II exceptions to enter non-public session.  No supportive documentation supports any good public policy reasoning to override RSA 91-A.
          What is clear is that the only intent of these elected individual was to protect themselves from any animosity from constituents and, most importantly, the appointee.  No proof supports that the convention “went further than the Right-to-Know law required.” Clearly, their actions were to conceal and keep secret how each voted.  Not one of the exceptions allowed under RSA 91-A: 3, II is intended to protect or prevent animosity upon or by any member of any board.  To the contrary RSA 91-A:3,  II, (c ) clearly states  “Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself,… .”  (Emphasis Added).

 

          Therefore, this Court must first determine if the methods used by the Convention to establish the process were in accordance with RSA 91-A, and:

 

a)         Differentiate if a Sheriff is a Public “officer” or an “employee”?

 

b)        Based on all the evidence in its possession determine if, in fact, the Convention “went further than the Right-to-Know law required” or instead violated RSA 91-A at every occasion relating to making the appointment to fill the unexpired term of a Belknap County official– the Sheriff?

 

c)         Determine if either this honorable Court, petitioners or respondants are empowered or able to predict that “the convention would reach a different result if the matter were to be revisited” or if they, or any other appointing body, would continue to shun the Right-to-Know law.  Would the vote count change from 10 to 4 or would it have been 8 to 7 or even unanimous?

 

d)        The honorable Court injected a question not put forth by the petitioners or the defendants.  The honorable Court must restructure the facts and laws cited, and determine if it interfered with US and State constitutional separation of powers when it overlooked or misapprehended that “the Convention would have been well within its rights to conduct the entire process of selecting the sheriff in nonpublic session RSA 91-A:3, II(b)”?
e)         Whether RSA 91-A:3,  II, (c ) in this instance has a force of law greater the RSA 91-A:2, II or 91-A:3, II, (b) in the above entitled matter?

 

            WHEREFORE, for the reasons stated herein, the Petitioners respectfully request that this Honorable Court:
A         That because there is no basis for the honorable court to inject that “the Convention would have been well within its rights to conduct the entire process of selecting the sheriff in nonpublic session RSA 91-A:3, II(b)” in its order that it be stricken from its FINDINGS, RULINGS AND ORDERS.
B         In the event the Court is inclined to deny the motion for reconsideration, that the honorable Court schedules a hearing for oral arguments.
C         Grant the Petitioner’s motion for reconsideration;
D         Grant such other and further relief as justice may require.

 

Respectfully Submitted,