NH’s Right to Know gets a day in Court [UPDATED & Bumped]

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sunshine

Rays of light into dark corners…

Today at 10 a.m., yours truly and former Laconia Mayor Thomas A. Tardif will have our day in court– the NH Supreme Court, that is. In case #’s 2007-0566 and 2007-0685, Tom will argue that the Belknap County Convention unlawfully met behind closed doors and a county employee unlawfully refused to produce documents to which we were entitled per NH’s Right-to-Know laws. As you might recall, all of this involves the procedure by which they appointed a new Sheriff to replace the resigned previous occupant, duly elected by the voters of Belknap County. We contend that it must be open and transparent, as it involves a Constitutional officer, and they contend the position is that of an employee, entitled to the privacy privileges granted in 91-A provisions.

You can listen to or view the arguments live by clicking here. You can read more of the detail as submitted in our brief here and more follow-up here. When I get back, I will update with the notes Tom will use.

[UPDATE]

It went very well for us yesterday. Tom presented the case in a nutshell (These are his notes):

The fatal flaw regarding the matters before this honorable court is apparent in the presiding Superior Court Justice’s Order of 17 July 2007, when it stated:

“The Convention is entitled to hire public employees, including the hiring of an interim Sheriff, in a nonpublic session under the Right-to-Know law. RSA 91-A:3,II …” (On page 4)

I)  The fact is, nowhere does RSA 91-A empower the Convention or any other body to “hire” employees.  RSA 91-A only establishes conditions regarding employees.

II)  More importantly, the County Convention is not entitled to “hire any employee”. 

 

III)  Regarding Constitutional Officers, No Employer – Employee relationship exists.  Once a Constitutional officer is elected, they cannot be fired by their employer, the voters.  Moreover, when a constitutional officer is appointed to fill a mid-term office they cannot be fired by the appointing authority.

IV)  No Elected Officer is entitled to UNEMPLOYMENT COMPENSATION.

V)  Constitutional officers do not report to a higher authority other than the voters.
• Constitutional officers cannot be interfered with by the County Convention.
• Constitutional officers, the Sheriff, simply are not “employees”.
• Constitutional officers are not at will employees.
• A Constitutional officer, once elected or appointed, will complete the term proscribed by law without supervision or interference by the County Convention.

Finally, the defendant’s unlawful exercise of power does not become legitimate by reason of habitude.  The Convention repeatedly entered non- public session without citing an exception, they did not keep proper minutes, and did not seal any records pertaining to those meetings and more.

Record keepers, Clerks or Recording Secretaries cannot of their on volition release non-public records.  Non-Public records are SEALED.  No Record keeper or Clerk should have access to sealed records.  Records that are not “sealed” are simply not private.

Upon request the Convention’s Records keeper and the Convention’s Clerk individually denied public access to records, in violation of the Right-to-Know.  The public is entitled to review the actions of its elected representatives.

The public should never wake up one morning to discover an unknown individual has been “appointed” as an interim-Constitutional officer.  Who else, if any, applied for the office, how long have they been a resident, what qualification do they have?  Shouldn’t the public should be able to ask, or review the record regarding how their representatives cast their vote?

In my opinion, the Honorable Supreme Court Justices seemed to have a full grasp of the importance of openness in government, noting it has a duty to choose more, not less whenever possible. While Tom answered their questions based on the foundation of our case, the opposing attorney representing the County Convention ALSO seemingly answered the Justices’ pointed questions based on the foundation of our case. Like a cat batting around a ball of yarn, the four Justices of the Supreme Court asked question after question of our opponent, to which he really had no good answers. When he did, he basically affirmated OUR points as made above. There was much back and forth about people being able to know what their elected officials are doing on their behalf. I was quite struck with the importance the Justices gave to citizen access. They discussed and compared the appointment of the Attorney General as an example. They raised a hypothetical "back room deal" that might be able to be struck in non-public proceedings. The opposing attorney agreed that in that instance, openness is desired. Heh!

The Justices kept him at the podium for nearly 10 minutes BEYOND his allotted 10 minute period, with Chief Justice Broderick at one point asking him, "Is this your best argument?" To which the battered counsel (paid for by County taxpayers) replied, "yes, Sir."

I guess I feel for the guy, though. I’m sure it’s not easy to argue against citizens having access to their government that’s supposed to be of the people, by the people, and for the people. Like Justice Broderick stated– "If we just hand out vote tallies from behind closed doors, we might as well shut down the government altogether." Then what?

 

 

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