QUESTIONS PRESENTED
1. Did the Court err when it researched RSA 91-A and RSA 104 for a definition of public officers and employees, then elected RSA 104 in determining a Sheriff is an EMPLOYEE, overlooking New Hampshire Constitution ART 71, Constitutional officers?
2. Did the Trial Court err in its interpretation and application of RSA 91-A:3, II(b) that the appointing of an interim constitutional officer, as described under the New Hampshire Constitution, Second part per Art. 71, i.e., sheriff, is the hiring of an employee?
3. Did the trial Court err in its interpretation and application of the Right-to-Know Law RSA 91-A:II (b) regarding the appointment office of a sheriff?
4. Did the trial Court err by injecting that the Belknap County Convention did more than was required in selecting the final applicant to fill the unexpired term of Sheriff?
5. Did the Trial Court err by not invalidating the actions of the Belknap County Convention in appointing the interim sheriff, taking into account the responsibilities vested with a sheriff?
6. Did the trial court err in its interpretation and application of NH Law that the County Convention hires employees?
7. Did the Court err when it listed benefits, workers’ compensation, and eligibility for state retirement as defining an “employee” but chose to ignore the fact that elected constitutional officers are not, nor should be eligible for unemployment compensation?
8. Did the Court err when it suggested the State Legislature should revise RSA 91-A when current law and the NH Constitution clearly defines a sheriff as a Constitutional Officer, and not by all general terms, an employee?
STATEMENT OF FACTS
The Belknap County Convention has the power to raise taxes and appropriate money for county expenses, and it is empowered to compel the application of county funds to the purposes for which they were appropriated unless a transfer is authorized, and to limit expenditures to those necessary for legitimate county purposes. And, 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 the County Conventions to hire employees.
On 29 May 2007, the Belknap County Convention entered nonpublic session per RSA 91-A:2 for discussion of the vacant Sheriff’s position, in violation of RSA 91-A:3,I, (a), (b). Moreover, the applications of seven candidates were reported as sent to each delegation/convention member, and that letters of recommendation were on file.
On 11 June 2007, the Belknap County Convention met to interview sheriff candidates. The Convention entered nonpublic session again in violation of the Right-to-Know Law RSA 91-A:3,I, (a), (b). Moreover, while in nonpublic they selected/voted for their top two applicants.
Then on 25 June 2007, the Belknap County Convention conducted interviews of the two finalists and at the conclusion, in violation of the Right-to-Know Law voted using secret paper ballots, resulting in Mr. Wiggin’s filling the midterm vacancy of Belknap County Sheriff.
SUMMARY OF CASE
On 03 July 2007, the Plaintiffs Douglas Lambert and Thomas A. Tardif filed a petition for Exparte Declaratory Judgment, Summary Judgment and Temporary Injunction prior to Mr. Wiggin’s official swearing in.
On 05 July 2007 the Defendant’s filed its objection to the Plaintiffs petition and Motioned for Summary Judgment. Following a brief oral argument presiding Justice Bruce E. Mohl denied the plaintiff’s motion for Temporary Injunction.
On 09 July 2007, Mr. Wiggin’s took the oath of office and assumed the duties of Belknap County Sheriff.
On 17 July 2007, Justice Mohl granted Plaintiff’s motion for Summary Judgment, awarding all out of pocket expenses. However, presiding Justice Mohl, in its order injected that “the convention would have been well within its rights to conduct the entire process of selecting the sheriff in nonpublic sessions RSA 91-A:3, I, (b).
On 20 July 2007, the Plaintiff’s filed for RECONSIDERATION and on 27 July 2007, also filed a MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION.
On 02 August 2007, Presiding Justice Mohl denied the Petitioners Motion for Reconsideration. The court order proliferated its opinion that “The place for such policy debates is not before the Court, but before the legislature, if it chooses to revise these portion of the Right-to-Know law. The law, as noted, does not require public bodies to conduct such hiring in non-public session; it simply permits the public body itself to determine when and if it will go into non-public session to hire pubic employees, as long as the body follow the procedural mandates of the statute.”
SUMMARY OF ARGUMENT
The trial Court erred by denying the motion for injunctive relief, as the appointment had not yet been authenticated by the oath of office. Clearly, the public’s confidence had and has been eroded as a result of the procedures being used by the Belknap County Convention is filling midterm vacancies of elected officials, given the plain meaning of RSA Chapter 91-A.
The New Hampshire Constitution part Second, ART 71 is clear in that the mode of appointing the Sheriff shall not deprive the people of the right they now have of electing them i.e., a right to know who is desirous of being sheriff, how long they resided in the County, what qualification they have and clearly who all the applicants are, and to observe or ask question of each applicant. Clearly, the process implemented by the Belknap County Convention, in filling the vacancy of midterm elected officers strikes at the heart of an open and honest government. The secret and nonpublic process violates ART 71 and the Right-to-Know Law.
The County Convention’s actions in appointing the midterm sheriff should be void as an ultra vires act. The convention exceeded its authority under ART 71 as expanded by RSA 661:9, with respect to filling midterm vacancies of constitutional officers.
The swearing in of the midterm sheriff should not have been allowed until or unless all records regardi
ng the applicants were available to the public for review or the entire process of selecting the midterm sheriff is done in full public view in a manner they presently enjoy.
The Plaintiff’s should not have had to petition the County Convention, incurring time and expense, simply because the Convention refused to do it right. By forcing the Convention to comply with the Law of the State of New Hampshire, the Plaintiffs’ actions have conferred a benefit to the citizens,
ARGUMENT
The Belknap County Convention has two basic legislative functions: 1) appropriate money and 2) fills midterm vacancies of Constitutional Officer, by appointment. It is absolutely critical that both procedurally are correct and accountable to the public. The appointment of a midterm sheriff is the single most important and profound act which must be accountable and open to the public. As such a Court may not or should not be in a position of deciding if a Constitutional officer is an employee and therefore, the appointment process is a hiring of an employee. A Court should simply be deciding if the proper and exact legislative and due process was followed by the Belknap County Conventions. If not, mandated the Court should invalidate the actions of this public body. RSA 91-A: 8.
The Plaintiffs challenged the actions of the Belknap County Convention regarding the appointment of the midterm sheriff which commenced on Monday June 25, 2007 when they first met in nonpublic session to discuss the appointment of a midterm sheriff of Belknap County. There is no doubt that the lawsuit was proper. “It’s well settled in this state that Plaintiff’s as citizens have a standing to seek redress for the unlawful acts of their elected officials”. Green v. Shaw, 114 N.H. 289, 291,292 (1974). 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 (1996),
After denying a motion for temporary injunction, the trial Court decided this matter on motions for summary judgment and injected that the “appointment” was a hiring and that the entire process could be done in nonpublic. Further stating that the County Convention had done more that it was required.
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 ENTIRE APPOINTMENT PROCESS COULD HAVE BEEN CONDUCTED IN NONPUBLIC SESSION
The petitioner asserts that the appointment of sheriff in nonpublic sessions and by paper ballot violated the New Hampshire Constitution and Right-to-Know laws. The Right-to-Know law is silent regarding any exemptions pertaining to appointments of Constitutional officers or an elected official. Moreover, the trial Court erred by not invalidating the actions taken at meetings held in violation of the provisions set forth in Chapter 91-A
III THE TRIAL COURT ERRED WHEN IT RULED THAT THE SHERIFF IS AN EMPLOYEE
The plaintiffs asserted that the Belknap County Sheriff is not a “Public Employee” founded first on RSA 273-A which deals specifically with “public employees”. Moreover, the term is defined as any person employed by a public employer except: Persons elected by popular vote, Person appointed to office by the legislative body of the public employer; RSA 273 – A:1 (IX). By further definition the term "employment” shall not include: Service performed by an individual in the exercise of duties as an elected official. RSA 282-A:9, IV,(o), (1)
IV THE TRIAL COURT ERRED WHEN IT RULED THAT THE BELKNAP COUNTY CONVENTION IS ENTITLED TO HIRE PUBLIC EMPLOYEES, INCLUDING THE HIRING OF AN INTERIM SHERIFF.
The plaintiffs further assert that the appointment of sheriff is that of an elected official and is not the hiring of an employee. Elected officials serve for a specific term and are not at will employees. Elected officials who are not re-elected are not eligible for unemployment compensation. Moreover, the law is clear that elected officials are exempted from the classification of “employee”. RSA 282-A:9, IV,(o), (1) The New Hampshire Constitution and State Statutes are silent as to the County Convention hiring of any employee. County employees are hired by the Sheriff and the County Commissioners. See Ronald D. Daniels v. Hanson 115 N.H. 44, Headnote 1, 448, 449, 451.
V THE TRIAL COURT ERRED WHEN IT RULED THAT THE SHERIFF CAN BE APPOINTED, IN NONPUBLIC SESSION UNDER RSA 91-A;3,II, (b).
The petitioners assert that the appointment of sheriff in nonpublic session and by paper ballot violated the New Hampshire Constitution and Right-to-Know laws. The Right-to-Know law is silent regarding any exemptions pertaining to appointments of Constitutional officers, but clearly is inclusive of County Conventions. The appointment process cannot deprive the voters of the same rights they have in electing them. RSA 91-A and NH Constitution Art 71. Moreover, the trial Court erred by not invalidating the actions taken at the meetings held in violation of the provisions set forth in Chapter 91-A:8
.
VI THE TRIAL COURT ERRED WHEN IT RULED THAT THE BELKNAP COUNTY CONVENTION WENT FURTHER THAN THE RIGHT-TO-KNOW LAW REQUIRED, CONDUCTING INTERVIEWS WITH THE TWO FINAL CANDIDATES AND VOTING AT THE PUBLIC SESSION.
The Right-to-Know Law is clear that all nonpublic meetings shall state under what exception it is entered into. The Belknap County Convention failed to
cite any exceptions on: May 29, 2007 and June 11, 2007. The Court misapprehended or overlooked the fact that all seven applicants were first interviewed in nonpublic sessions, in which the convention paired down those applicants to the final two for public interviews.
A legislative body is possessed of special powers, limited by Constitutional, statutory provisions, and all acts by it in excess of its powers are simply nugatory. The Constitution Art. 71 established certain minimum requirements for electing Constitutional officers. The Belknap County Convention is not mandated to adopt its own policy. Moreover, RSA 273-A and RSA 282-A specifically addresses employee. The Right-to-Know law is applicable and the Sheriff is not an employee.
VII THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE TEMPORATY INJUCTION.
By failing to Properly Appoint the Midterm Sheriff, the Appointed Sheriff was Deemed Appointed on July 9, 2007 two weeks after the Convention reached consensus by secret paper ballot. Midterm Sheriff Wiggin’s challengeable authority can only be attributed to the nonpublic methodology used by the Belknap County Convention in violation of Chapter 91-A not once but three or more instances, RSA 91-A: 8, II
CONCLUSION
A Reverse the decision of the trial court regarding the hiring of employees by the County Convention, and
B Reverse the decision of the trial court regarding Constitutional officers being considered employees, 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
121 Winter Street
Laconia, NH 03246
(603) 524-0865
________________________
Douglas Lambert, ProSe
42 Farmer Drive
Gilford, NH 03246
Dated: 01 October 2007
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION
The plaintiffs request that Thomas A. Tardif, ProSe be allowed fifteen minutes for oral argument.
I herby certify that on 1 October 2007, two copies of the following were hand delivered to James Carroll, Esq., opposing Counsel.
Dated: 01 October 2007 By_________________________
Thomas A. Tardif, ProSe
VIIBy failing to Properly Appoint the Midterm Sheriff, the Appointed Sheriff was Deemed Appointed on July 9, 2007 two weeks after the Convention reached consensus by secret paper ballot.Midterm Sheriff Wiggin’s challengeable authority can only be attributed to the nonpublic methodology used by the Belknap County Convention in violation of Chapter 91-A not once but three or more instances,RSA 91-A: 8, IIVVIThe Right-to-Know Law is clear that all nonpublic meetings shall state under what exception it is entered into.The Belknap County Convention failed to cite any exceptions on: May 29, 2007 and June 11, 2007.The Court misapprehended or overlooked the fact that all seven applicants were first interviewed in nonpublic sessions, in which the convention paired down those applicants to the final two for public interviews.VIIBy failing to Properly Appoint the Midterm Sheriff, the Appointed Sheriff was Deemed Appointed on July 9, 2007 two weeks after the Convention reached consensus by secret paper ballot.Midterm Sheriff Wiggin’s challengeable authority can only be attributed to the nonpublic methodology used by the Belknap County Convention in violation of Chapter 91-A not once but three or more instances,RSA 91-A: 8, IIIIIIThe plaintiffs asserted that the Belknap County Sheriff is not a “Public Employee” founded first on RSA 273-A which deals specifically with “public employees”.Moreover, the term is defined as any person employed by a public employer except:Persons elected by popular vote, Person appointed to office by the legislative body of the public employer; RSA 273 – A:1 (IX).By further definition the term "employment” shall not include: Service performed by an individual in the exercise of duties as an elected official. IV,(o), (1)IVThe plaintiffs further assert that the appointment of sheriff is that of an elected official and is not the hiring of an employee.Elected officials serve for a specific term and are not at will employees.Elected officials who are not re-elected are not eligible for unemployment compensation.Moreover, the law is clear that elected officials are exempted from the classification of “employee”.IV,(o), (1)The New Hampshire Constitution and State Statutes are silent as to the County Convention hiring of any employee.County employees are hired by the Sheriff and the County CommissionersVVIThe Right-to-Know Law is clear that all nonpublic meetings shall state under what exception it is entered into.The Belknap County Convention failed to cite any exceptions on: May 29, 2007 and June 11, 2007.The Court misapprehended or overlooked the fact that all seven applicants were first interviewed in nonpublic sessions, in which the convention paired down those applicants to the final two for public interviews.VIIBy failing to Properly Appoint the Midterm Sheriff, the Appointed Sheriff was Deemed Appointed on July 9, 2007 two weeks after the Convention reached consensus by secret paper ballot.Midterm Sheriff Wiggin’s challengeable authority can only be attributed to the nonpublic methodology used by the Belknap County Convention in violation of Chapter 91-A not once but three or more instances,RSA 91-A: 8, IIThe Plaintiff’s should not have had to petition the County Convention, incurring time and expense, simply because the Convention refused to do it right.By forcing the Convention to comply with the Law of the State of New Hampshire, the Plaintiffs’ actions have conferred a benefit to the citizens, The Plaintiffs challenged the actions of the Belknap County Conventi
on regarding the appointment of the midterm sheriff which commenced on Monday June 25, 2007 when they first met in nonpublic session to discuss the appointment of a midterm sheriff of Belknap County. There is no doubt that the lawsuit was proper.“It’s well settled in this state that Plaintiff’s as citizens have a standing to seek redress for the unlawful acts of their elected officials”.Green v. Shaw, 114 N.H. 289, 291,292 (1974).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 (1996), After denying a motion for temporary injunction, the trial Court decided this matter on motions for summary judgment and injected that the “appointment” was a hiring and that the entire process could be done in nonpublic.Further stating that the County Convention had done more that it was required.IIIIThe plaintiffs asserted that the Belknap County Sheriff is not a “Public Employee” founded first on RSA 273-A which deals specifically with “public employees”.Moreover, the term is defined as any person employed by a public employer except:Persons elected by popular vote, Person appointed to office by the legislative body of the public employer; RSA 273 – A:1 (IX).By further definition the term "employment” shall not include: Service performed by an individual in the exercise of duties as an elected official. IV,(o), (1)IVThe plaintiffs further assert that the appointment of sheriff is that of an elected official and is not the hiring of an employee.Elected officials serve for a specific term and are not at will employees.Elected officials who are not re-elected are not eligible for unemployment compensation.Moreover, the law is clear that elected officials are exempted from the classification of “employee”.IV,(o), (1)The New Hampshire Constitution and State Statutes are silent as to the County Convention hiring of any employee.County employees are hired by the Sheriff and the County CommissionersVVIThe Right-to-Know Law is clear that all nonpublic meetings shall state under what exception it is entered into.The Belknap County Convention failed to cite any exceptions on: May 29, 2007 and June 11, 2007.The Court misapprehended or overlooked the fact that all seven applicants were first interviewed in nonpublic sessions, in which the convention paired down those applicants to the final two for public interviews.VIIBy failing to Properly Appoint the Midterm Sheriff, the Appointed Sheriff was Deemed Appointed on July 9, 2007 two weeks after the Convention reached consensus by secret paper ballot.Midterm Sheriff Wiggin’s challengeable authority can only be attributed to the nonpublic methodology used by the Belknap County Convention in violation of Chapter 91-A not once but three or more instances,RSA 91-A: 8, II