QUESTIONS PRESENTED
1. Did the Trial Court err by comparing the County Convention’s appointment of an interim sheriff as, an elected Constitutional Officer, “[t]he hiring of any person as a public employee” to conclude that RSA 91-A:3 exempted the applications and letters of recommendation as exempt from the provisions of RSA 91-A?
2. Did the Trial Court err in its interpretation and application of RSA 91-A;5, IV that interviews of the seven applicants for the position of interim sheriff are equivalent to the “examinations[s} for employment” and therefore the applications and letters of recommendation utilized in the nonpublic interviews as exempted from the provisions of RSA 91-A?
3. Did the trial Court err in its interpretation and application of the Right-to-Know RSA 91-A:5, IV that applications to fill the unexpired term of sheriff, an elected constitutional officer, were exempt similar to employment-related materials from the disclosure requirements of RSA 91-A?
4. Did Trial Court err, by not conducting an in-camera revue of all the applications for the position of interim sheriff and supporting letters of recommendation prior to denying the petitioner’s request to review the records that are the only remaining method remaining for the public to inform itself about the conduct and activities of the County Convention in nonpublic session so that they may conclude that the ultimate appointee was in fact the most desirable interim replacement of the seven candidates?
5. Did the Trial Court err by ruling that necessary information voluntary submitted by all applicants for appointment as interim sheriff, an elected position, are personnel information and therefore exempted from RSA 91-A?
6. Did the Trial Court err in its interpretation and application of Lamy, 152 N.H. at 109, in that applications for the interim sheriff vacancy have the same standing as residential rate payers of a Commercial Power Company?
7. Did the Trial Court err in its interpretation and application of Lamy, 152 N. H. at 101-109 that Business rate payers are not necessarily coextensive with that of an applicant for the interim position of sheriff thereby denying public access to the only record the public has of determining the action of the County Convention in nonpublic session were justified?
8. Did the Trial Court err by ruling letters of recommendation for applicants are personal information of each of the applicants and are exempt from RSA 91-A?
9. Did the Trial Court err by ruling that simply because the County Convention failed to cite the specific statutory exception for nonpublic session does not render the applications and letters of recommendation confidential under the Right-to-Know Law, accessible to the public?
10. Did the Trial Court err by ruling that simply because the County Convention, on all three occasions of being in nonpublic meetings in violation of RSA 91-A, did not vote to seal the nonpublic minutes or records per RSA 91-A:3, III were exempt per RSA 91-A:5, IV?
11.) Did the Trial Court err by ruling that the disclosure of the applicant’s name, address, and phone number: education: and work history of the seven applicants for filling the unexpired term of an elected official will not inform the public about the conduct and activities of the County Convention during the selection process but will instead inform the public of the seven candidates’ personal information only, thereby denying the public of the only method of knowing and understanding the action and activities the County Convention conducted in nonpublic session that resulted in the appointment of an unknown individual as Belknap County interim Sheriff?
12.) Did the Trial Courts’ ruling of barring the public from scrutinizing or reviewing the basis for all the actions of the County Convention in filling the midterm vacancy of the constitutional office, deprive the people of the right they now enjoy in electing a constitutional officer per Art 71?
13.) Did the Trial Court err when it overlooked the fact that Ms. Bell, a non-member of the County Convention, in effect a member of the public, had full and complete access to the records requested by the petitioners but disallowed any other member of the public the same access?
The Belknap County Convention is empowered to make midterm appointments of constitutional officer in accordance with the New Hampshire constitution, part Second, ART 71, RSA 24:13 and RSA 661:9.
Upon the creation of a midterm vacancy of Belknap County’s Sheriff, the County Convention commenced its appointment process to fill the interim Sheriff, an elective office. The Convention first met on 29 May 2007. While in nonpublic session, in violation of RSA 91-A, they were informed by its chairman that “applications” were reported as having been sent / forwarded to each of the 18 members of the Convention and “Letters of recommendations were on file in Angela Bell’s Office” and would also be sent out to each of the 18 members. In addition, the Convention established a sub-committee to prepare the questions and “score sheet”.
Then on 11 June 2007, the convention’s sub-committee met and adopted the 6 Questions and a 5 step process.
On 11 June 2007, the County Conventi
on met and adopted the sub-committee’s prepared procedures and questions for interviewing sheriff applicants to fill the interim sheriff vacancy. Once again they entered nonpublic session in violation of RSA 91-A. Then behind closed door in secret they interviewed each of the seven applicants for the position of interim sheriff. The procedure for voting; such as show of hands, paper ballots or other from of voting somehow resulted in the paring down of the seven applicants to two, to be re-interviewed in public at the next meeting.
On 25 June 2007, the Belknap County Convention met and publicly interviewed the final two applicants. The Convention’s first action regarding filling the interim sheriff’s position was to vote to violate RSA 91-A even further by using the secret process of voting for the final applicant using “secret paper ballot”, approved by 13-1. Next the interviews began by ignoring the 6 questions asked in secret by allowing each applicant; Mr. Wiggin and Mr. Nielsen, to make a presentation of choice, each citing attributes.
Following, the secret paper ballot by a vote of 10, 4 and 1, Mr. Wiggin was declared the interim Sheriff.
On 23 July 2007, the petitioners knowing the County Convention did not seal any of its nonpublic minutes, presented Angela Bell a Right-to-Know Request to review the records, in her charge, cited in the County Convention minutes. The petitioners request for unsealed records was first returned, pending further response from the Convention Chairman. The petitioners, realizing that Mr. Bell had not requested, nor had the petitioners offered personal contact information, returned to the Belknap County Commissioner’s Administrative Secretary’s office and re-submitted the Right-to-Know Request. Ms. Bell accepted the petitioners’ “Written” Right-to-Know Request a second time, but would not provide any form of acknowledgement that the request was made. Ms. Bell did not offer a definitive time or date that petitioners would be allowed to review the requested records or reasonable justification for denying the RSA 91-A request.
Most importantly the defendants in the above cited docket, the Chairman of the Convention and a non-member records keeper, had and have no standing to deny access to records that have not been sealed. They did so in a personal capacity.
On 24 July 2007 the Petitioners filed its Petition with the Belknap Superior Court.
On 25 July 2007, the Belknap County Delegation/Convention’s Clerk, Mr. David H Russell, a non-defendant, sent his written denial of the records citing RSA 91-A:5 Section IV. No individual member is empowered to unilaterally speak on behalf the Convention. Moreover, no known meeting of the County Convention has ever voted to seal the records as exempt per RSA 91-A:5 Section IV much less respond for the defendants.
STATEMENT OF CASE
The Belknap County Convention is empowered by the New Hampshire legislature to make midterm appointments of constitutional officers pursuant to the provision of the New Hampshire Constitution, part Second, ART 71, RSA 24:13 and RSA 661:9. More on point is that the legislature has not empowered County Conventions’ authority to hire employees, much less in nonpublic sessions.
On 29 May 2007, the Belknap County Convention entered nonpublic session in violation of RSA 91-A:3, I, (a), (b).per RSA 91-A:2. They deliberated on a process to fill the midterm vacancy of Sheriff. Moreover, the applications of the seven candidates were reported as sent to each delegation /convention member, and that letters of recommendation were on file. Ms. Angela Bell, a non-member or employee of the County Convention, in her capacity as County Commissioner’s Administrative assistant performed those task and maintained those unsealed records. At no time during that public or non-public meeting was the issue of privacy or invasion of privacy of applicants or authors of letter of recommendation cited.
On 11 June 2007, the Belknap County Convention met once again to interview sheriff candidates. The Convention continued its now historical practice of ignoring RSA 91-A. They entered nonpublic session again in violation of the Right-to-Know Law RSA 91-A:3,I, (a), (b). While in nonpublic session they voted for their top two applicants for interim sheriff. At no time during that public or non-public meeting was it ever stated the all records used by the County Convention by its actions to pair down the seven applicant to two, were exempt from RSA 91-A:5, IV or voted sealed to a date certain. Moreover, the issue of privacy / invasions of privacy of applicants or authors of letter of recommendation / opposition were ever discussed.
On 25 June 2007, the Belknap County Convention conducted interviews of the two finalists. At the conclusion, in violation of the Right-to-Know Law, they voted by secret paper ballots resulting in Mr. Wiggin’s filling the midterm vacancy of Belknap County Sheriff. (see Belknap Superior Court Order #07-E-0140)
On 23 July 2007, the petitioners presented Angela Bell a written Right-to-Know request to review all the records cited in the County Convention minutes. The petitioners were denied any form of receipt for its request, and were denied access to those records.
On 24 July 2007, the Plaintiffs Thomas A. Tardif and Douglas Lambert filed a petition for Declaratory Judgment to review the records, utilized by the county Convention in its actions that resulted in the appointing of Mr. Wiggin’s as interim sheriff.
On 25 July 2007, a non-defendant, David H. Russell, Clerk, Belknap County Convention denied the petitioners request to review records per RSA 91-A absent any specifics.
On 27 July 2007, the defendants filed it OBJECTION TO PETITION FOR DE(C) LARATORY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT. The Defendants’ motion for summary judgment raised a new issue of “invasion of privacy”. Moreover, they unconscionably and inappropriately questioned the petitioners’ rights, per RSA 91-A, to request any records pertaining to those nonpublic actions by the County Convention in its appointment of the interim sheriff, done completely in violation of RSA 91-A, as “a veiled effort to invade the privacy of pu
blic minded individuals … .” This vexatious tactic can only be intented to deceive the courts Further, the respondents’ MOTION for Summary Judgment failed to include supportive affidavit(s) as required per Superior Court Rule 58-A and RSA 491:8-a, II. Any party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively that the affiants will be competent to testify. Further, the issue of invasion of privacy should be void as an ultra vires . The County Convention did not seal any of it non-public minutes, they entered nonpublic meeting in violation of RSA 91-A and no affidavits support by any applicants or members of the public that privacy was an issue. Most importantly the Defendant is the above cited docket, the Chairman of the Convention and a non-member had and have no standing to deny access to records that have not been sealed. Additionally, the Belknap County Delegation/Convention’s Clerk, Mr. David H Russell, a non-defendant, who wrote a denial of the records is not unilaterally empowered to speak for the Defendants, as no known meeting of the County Convention has ever voted to seal the records.
On 02 August 2007, Justice Mohl ordered that prior to scheduling a hearing on the merits; the parties could file any supplemental memoranda or legal arguments on or before August 15, 2007,
On 15 August 2007, the petitioners filed its MEMORANDUM OF LAW IN SUPPORT OF PETITIONER MOTION FOR SUMMARY JUDGMENT. The respondents failed to file a memorandum of law.
On 05 September 2007, Justice Mohl granted the respondents’ motion for summary judgment and denied petitioner’s motion for summary Judgment or out of pocket costs.
On 17 September 2007, the Petitioners filed a MOTION FOR RECONSIDERATION. The respondents’ failed to file an OBJECTION.
On 02 October 2007, the honorable justice Mohl summarily denied the Petitioners Motion for reconsideration.
SUMMARY OF ARGUMENT
The trial court erred by Granting the respondents’ motion for summary judgment without an in-camera review of records requested, Defendants’ Memorandum of Law or objection to Plaintiff Memorandum of Law.
The secret public records will restore the public’s rights they now have of electing sheriff’s i.e., a right to know who is desirous of being sheriff, how long each applicant has resided in the County, what qualification they have and clearly who all applicant are. The secret / nonpublic process and voting implemented by the County Convention in filling the vacancy of midterm elected officers strikes at the heart of open and honest government. The records used by the County Convention in filling the midterm vacancy of a constitutional officer, the Sheriff, must not be secret or allowed to remain secret.
The Right-to-Know Law and the New Hampshire Constitution part Second, ART 71 is clear. The mode of appointing the Sheriff shall not deprive the people of its right to know the actions of the Belknap County Convention,
The County Convention’s actions under RSA 661:9, with respect to filling midterm vacancies of constitutional officers must not be in conflict with RSA 91-A.
The Plaintiff’s should not have had to petition the County Convention, incurring time and expense, simply because the Convention refused to expose its violations of the public’s Right-to-Know. By forcing the Convention to comply with the Law of the State of New Hampshire, the Plaintiff’s actions have conferred a benefit to the citizens,
ARGUMENT
The Belknap County Convention is charged by the legislature to fill midterm vacancies of Constitutional Officer, by appointment. It is absolutely critical that the process is procedurally correct and accountable to the public. The actions of the Belknap County Convention during its appointment of the replacement Sheriff are most important and profound acts which must be accountable and open to the public.
The Plaintiffs’ Right-to-Know request for records regarding the appointment of the midterm sheriff clearly shall be public. To allow otherwise violates the New Hampshire Constitution part Second Art 71. There is no doubt that the lawsuit was proper The court held that the motives of a particular party seeking disclosure are irrelevant when conducting the balancing test between the public’s interest in disclosure and a private citizen’s interests in privacy. see Union Leader Corp. v. City of Nashua, 141 N.H. 473, 478 (1996).
No proof was offered or exists that if the application and letters of recommendation from the general public pertaining to the filling of the interim sheriff’s office were made available, would impair the Convention’s ability to solicit applicants in the future. In fact, it is in the best interest of the general public to know who and what attributes applicants have, so that the constituents of Belknap County can contact their respective elected representative in support of or opposition to any applicant, prior to the appointment of the interim sheriff.
Because all of the actions of the Belknap County Convention’s filling the interim midterm appointment of sheriff were done in secret behind closed doors in violation of RSA 91-A, thereby depriving the public of the rights they now enjoy in electing a sheriff, the only remaining means to observe the action of the Convention are the records used by the Convention in filling the midterm vacancy. Moreover, how can an applicant object strenuously to the distribution of information they voluntarily submitted, fully expecting to become a public servants?
In Lamy v PUC (cite omitted) the issue pertained to an electric ratepayers’ study, dissimilar to appointments of constitutional officers. The ratepayers used in the study were involuntary participants. Further, the Court differentiate
d between residential ratepayer information and business ratepayers. The Court held that business ratepayer related information was public. See Lamy v PUC 152 N.H. 106, 109, CF Goode 148 At 544, 149 N.H. At 140.
Clearly, at every step, the actions taken by the County Convention restricted the public rights enjoyed during an election. Absent access to the records used by the members of the Convention, what method does the public have to determine if the selection was fair and impartial? The convention has not met its burden of proof for nondisclosure. see Union Leader Corp. v N.H. Housing Authority 142 N.H. 540, 549 (1977)
Accordingly, in the absence of any recorded vote to seal minutes or records utilized in filling the vacancy of the interim sheriff, the defendants Stephen H. Nedeau, Chairperson nor Angela Bell, Records Keeper for County Convention had and have no right as individuals for denying any records pertaining to the midterm vacancy of Belknap County Sheriff. The reasons the defendants are now relying upon or other Laws for keeping its records nonpublic should have been included in its minutes. All nonpublic meeting were entered into in violation of RSA 91-A and no minutes were sealed. See generally Cioffi v. Sanbornton No 2001-E-022 Belknap County Superior Court (2001).
I STANDARD OF REVIEW
The standard of review is well established. Once the moving party has made a properly supported motion for Summary Judgment, the non-moving party cannot rest upon mere allegation, but must establish the existence of a genuine issue of material fact for trial RSA 491:8,a, III(1997). See also Gamble v. University system of NH 136. N.H. 9, 16 – 17 (1992).
II THE TRIAL COURT ERRED WHEN IT RULED THAT THE County Convention’s appointment of an interim sheriff was “[t]he hiring of any person as a public employee.
The petitioners assert that the New Hampshire Revised Annotated Statures are silent any formal or informal exam or application form, written or oral, for a candidate or an applicant for the position of the position as a Constitutional Officers therefore, the appointment is not a hiring.
III THE TRIAL COURT ERRED WHEN IT RULED THAT RSA 91-A;5, IV applied to the interviews of the seven applicantS for the position of interim sheriff are equivalent to the “examinations[s} for employment”.
The petitioners assert that the records that support the actions of the County Convention in appointment the sheriff in nonpublic sessions and by paper ballot are subject to the Right-to-Know laws. The Right-to-Know law is silent regarding any exemptions pertaining to records of applicants for vacancies of interim constitutional officers or an elected official. Moreover, all records were voluntarily submitted by the applicant or recommenders contemporaneously waiving any claim of “invasion of privacy”.
IV THE TRIAL COURT ERRED WHEN IT RULED THAT applications to fill the unexpired term of sheriff, an elected constitutional officer, were exempt similar to employment-related materials from the disclosure requirements of RSA 91-A?
The petitioner asserts that the New Hampshire Revised Annotated Statures are silent any formal or informal exam or application form, written or oral, for a candidate or an applicant vying for the position of a Constitutional Officers such has sheriff in the above cited docket.
V THE TRIAL COURT ERRED WHEN IT RULED THAT applications for appointment for interim elected positions are personnel information.
The petitioner asserts that applicants wishing to fill the interim term of sheriff must comply with all the requirements of the office of Constitutional Officers such as but not limited to Name, Address, City/Town, County and qualifications. Moreover, required information clearly cannot be considered an invasion of privacy when submitted voluntarily.
VI THE TRIAL COURT ERRED WHEN IT ruled THAT record utilized in appointing the interim sheriff have the same standing as all rate payers records of a Commercial Power Company.
The petitioners assert that rate payers are not applying for employment, they are they are consumers, thus not embraced by NH Constitution Art. 71.
VII THE TRIAL COURT ERRED WHEN IT RULED THAT Business customer records are not necessarily coextensive with that of an applicant for interim Constitutional Officers.
The petitioners assert that business customers provide a service to the general public, just a constitutional officer provides a service to the public. Each requires its Name, Street, and City address to be public information to be successful.
VIII THE TRIAL COURT ERRED WHEN IT RULED THAT letters of recommendation for applicant’s are personal information OF its authors or that of each of the applicantS.
The petitioners assert that considering that not one affidavit was submitted by the defendants from any applicants or authors of letters, that
they did not want to have the records made public, no pre or post appoint claims of invasion of their privacy have any standing under RSA 91-A:5.
IX THE TRIAL COURT ERRED WHEN IT RULED THAT it is irrelavant that the county convention failed to cite the specific statutory exception for nonpublic session, and does not render documents confidential under the Right-to-Know Law, accessible to the public.
The petitioners assert that the records document the members of the Belknap County Convention acted with misfeasance or malfeasance regarding nonpublic meetings, entered into in violation of RSA 91-A and associated records used by them in those meetings. The quorum of Convention members chose not to seal any minutes or records. All documents are necessary to hold the Convention accountable for its actions in filling the position of interim Sheriff. Moreover, the issue of invasion of privacy should be void as an ultra vires. The County Convention did not seal any of it non-public minutes, they entered nonpublic meeting in violation of RSA 91-A and no affidavits support by any applicants or members of the public that privacy was an issue. Most importantly the defendant is the above cited docket, the Chairman of the Convention and a non-member had and have no standing to deny access to records that have not been sealed. Additionally, the Belknap County Delegation/Convention’s Clerk, Mr. David H Russell, a non-defendant who wrote a denial of the records is not unilaterally empowered to speak for the Defendants, as no known meeting of the County Convention has ever voted to seal the records.
X THE TRIAL COURT ERRED WHEN IT RULED THAT the county convention records utilized in nonpublic meetings, in violation of RSA 91-A, not sealed per RSA 91-A:3, III were exempt per RSA 91-A:5, IV.
The petitioners assert that ignorance of the laws is no excuse, especially considering that some members of the Convention serve on the NH legislative committee on the Right-to-Know.
XI THE TRIAL COURT ERRED WHEN IT RULED THAT the disclosure of the name, address, and phone number: education: and work history of the seven applicants for filling the unexpired term of an elected official will not inform the public about the conduct and activities of the County Convention during the selection process but will instead inform the public of the seven candidates’ personal information only.
The petitioners assert that all applicants voluntarily submitted all information included in making known their wish to fill the interim term of Belknap County Sheriff. No Law, Public policy, bulletin or news report indicated the commission required any information beyond those required by election laws. If the applicants chose to file a resume, they did so of their own volition, contemporaneously waving any rights to privacy. All record used by the County Convention in nonpublic session in appointing an interim sheriff are the only means for the public to hold these elected official accountable for there actions.
XII THE TRIAL COURT ERRED WHEN IT RULED THAT the actions of the county conventions action and records in filling the midterm vacancy of the constitutional office does not deprive the people of the right they enjoyed in electing a constitutional officer.
The petitioner asserts that the name, street and city are a requirement of all applicants. All other information voluntarily provided by applicants are contemporaneously public upon submission. Only and in-camera review can support any claim of invasion of privacy.
XIII THE TRIAL COURT ERRED WHEN IT RULED THAT Ms. Bell, a non-member of the County Convention, in effect a member of the public, had full and complete access to the records requested by the petitioners.
The petitioners assert that when one member of the public is allowed to have access to public record the entire public shall also have access. Therefore, the petitioners must equally have access to all records that are in possession of Angela Bell.
XIV THE TRIAL COURT ERRED WHEN IT RULED THAT applications and letters of recommendation in support or opposition of applicants for midterm appointments of a Constitutional Officer per NH Constitution Art.71 are protected under invasion of privacy.
The plaintiffs further assert that the Right-to-Know law is silent regarding any exemptions pertaining to records associated with an appointment of constitutional officers.
CONCLUSION
A Reverse the decision of the trial court regarding the records involved in the appointment of an interim constitutional officer by the county convention, and
B Reverse the decision of the trial court regarding records of applicant, supports or non-supporters of interim constitutional officer as being considered employees records, and
C Award all out of pocket expenses for the plaintiffs having to appeal the courts order, to this honorable court, and
D Grant any further relief as may be equitable and meet.
Respectfully Submitted,
________________________
Thomas A. Tardif, ProSe
Laconia,
NH 03246
________________________
Douglas Lambert, ProSe
Gilford, NH 03249
Dated: 18 October 2007
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION
The plaintiffs request that Thomas A. Tardif, ProSe be allowed fifteen minutes for oral argument.