NH Attorney General Gives the Nod to Electioneering with Public Funds

October 2, 2020

Nicholas A. Chong Yen
Assistant Attorney General
Election Law Unit

Dear Attorney Chong Yen,

Thank you for your investigation of the Nashua Teachers Union’s actions in response to my complaint submitted on October 30, 2019. I’m writing to you in response to your letter dated September 28, 2020, where you concluded that there was no NTU electioneering in Nashua.

Related: Electioneering: Nashua Teacher’s Union Breaks the Law Again and Violates Their Contract

Picture of 2019 campaign information distributed by the Nashua Teachers Union members during school hours, in school buildings, using district internet infrastructure and/or computers  — for its political action group: Committee On Political Education (COPE).

It’s important to understand that Nashua Teachers Union President Marcoux’s emails initiated the electioneering, which was carried out by public school employees.

Mr. Marcoux distributed political campaign material from the NTU’s political action committee COPE (Committee on Political Education), which was forwarded throughout the district to hundreds of public employees.

Related: We May Have an Electioneering Problem in New Hampshire Public Schools

Nearly all of these forwarded emails were sent by public school employees during the school day in violation of RSA 659:44-a I. “No public employee, as defined in RSA 273-A:1, IX, shall electioneer while in the performance of his or her official duties.” (See enclosed table below.)

This sharing of political campaign material was done in public school buildings and using public school district equipment, i.e. computers and network infrastructure, in violation of RSA 659:44-a II. “No public employee shall use government property or equipment, including, but not limited to, telephones, facsimiles machines, vehicles, and computers, for electioneering.”

A Right to Know request for NTU emails for October 21, 2019, and October 28, 2019 was filed on October 31, 2019, to the Nashua Superintendent. This information revealed forty-two (42) union electioneering emails from just those two days: presumably, other days close to the election were similar.

Right to Know information received:  October 21, 2019 NTU emails:

Electioneering October 21 2019 

Right to Know information received:  October 28, 2019 NTU emails:

Electioneering October 28 2019.

I shared this information with you on November 18, 2019, as soon as it was made available. These emails were retrieved by searching public school district equipment, e.g., computers and internet infrastructure.

There is an outstanding Right to Know request for similar information for the 2017 election. A district employee confirmed the existence of those emails. However, the superintendent has so far failed to provide that information.

It appears that your investigation overlooked that Nashua Teachers Union President Marcoux’s emails on Oct. 21^st and Oct. 28^th 2019 were sent in each instance to seventy (70) NTU leaders, who are public employees, using their public school district email addresses, not private emails. These emails were delivered through public school district equipment, i.e., internet servers and computers, which Nashua taxpayers have installed in our public schools at considerable expense.

These public employees, who received Mr. Marcoux’s emails, were directed to “please forward to the membership.” Thirty-eight (38) emails were sent out by public employees, sharing Mr. Marcoux’s political campaign information with hundreds of other public employees, using district email addresses and district equipment, i.e, computers and internet infrastructure.

According to the Nashua Teachers Contract, Art. 8:2 (C) the “School Day” for Nashua teachers starts fifteen (15) minutes before the start of the pupil school day and continues until ten (10) minutes after the close of the pupil school day. I’ve included a chart, for your convenience, of the public pupil school day with respect to the various Nashua elementary, middle, and high schools.

Thirty-one (31) emails were sent by public employees, sharing Mr. Marcoux’s political campaign information, during the teacher’s official school day. This can be verified by the time stamp on each email.

Two (2) electioneering emails contained individual electioneering messages. For instance, one public employee emailed another public employee using district emails and internet infrastructure during the school day as she was worried about staff members who had missed the “election stuff” distributed on the previous Friday.

Another email was by a union member to his public middle school colleagues, using district email and internet infrastructure, asking for a union meeting as he felt the “need to talk up the city elections.”

Actually, the Nashua Teachers Union President is considered a public employee. His salary is included in the annual school district budget; his medical benefits are included in the City’s budget. Mr. Marcoux accrues years of public district service towards his seniority and severance benefits as well as state retirement benefits each year while he works as union president. He receives every negotiated union salary increase while working as a union president and he also collects a union salary. The Nashua Teachers Union is required by a Memo of Understanding (MOU) in the union contract to reimburse the district for the cost of his compensation, but many of these benefits are not calculable without violating his medical privacy, given that the City’s medical benefits are self-insured, and without knowing in advance how long he will collect a state pension.

The distribution of electioneering literature through emails by public union employees in the public schools, before, during, and after school, is prohibited by the union contract with the school district.

Art. 12:3 Distribution of Material – Mail Boxes

Officers or officials of the recognized teacher bargaining agent, and of no other teacher organization which purports to represent teachers for collective bargaining purposes, shall have the right to reasonable use of the school mail boxes for distribution of organizational material provided such materials are in good taste and provided that such materials shall not include campaign organization material related to local, state or national political matters.

Nor has the City held the unions accountable for their failure to comply with City ordinances that require them to file campaign expenditure reports for the last twelve (12) years.  

The fine for failure to submit those financial reports is $100 per day; each day is a separate offense.

§ 23-19Violations and penalties.

[NRO 1975, T. 2, § 604; 10-18-1977 by Ord. No. O-77-199; 12-26-2007 by Ord. No. O-07-128]

A. It shall be unlawful for any candidate, person, or political committee to try to circumvent the filing of an item of value larger than $10 by any means. Any candidate, person, or political committee having been found guilty of such a circumvention shall be guilty of failing to comply.

B.  Any candidate, person, or political committee failing to comply with the provisions of this article shall, upon conviction, be guilty of a violation, and fined not more than $100 for each day that lack of compliance exists. Each day that lack of compliance exists shall constitute a separate offense.

The taxpayers of Nashua deserve some relief, at least in terms of enforcement of existing state law against electioneering when there is clear evidence of the union doing so.

Please reconsider the information that I’ve submitted and set the right precedent so union members in other school districts don’t start copying the misbehavior that has occurred in Nashua.

Thank you for your assistance.

Regards,

Doris Hohensee

Nashua Schools                         Pupil School Day (2019-2020 school year)

High schools                                7:20 am to 2:03 pm

Middle schools                             8:00 am to 2:43 pm

Elementary schools:

                                                     Amherst St 8:15 am to 2:40 pm

                                                    Bicentennial 9:00 am to 3:25 pm

                                                    Birch Hill 9:00 am to 3:25 pm

                                                    Broad St 8:15 am to 2:40 pm

                                                    Charlotte 9:00 am to 3:25 pm

                                                    Dr. Crisp Elementary 8:15 am to 2:40 pm

                                                    Fairgrounds 8:15 am to 2:40 pm

                                                    Ledge St 8:15 am to 2:40 pm

                                                    Main Dunstable 9:00 am to 3:25 pm

                                                    Mt Pleasant St 8:15 am to 2:40 pm

                                                    New Searles 9:00 am to 3:25 pm

                                                    Sunset Heights 9:00 am to 3:25 pm

Note: Teachers names were redacted for privacy

    Emails marked in red meet the statutory definition of electioneering as they were sent by public employees:

             (a) during the teacher’s official school day, or

             (b) using public school district equipment, e.g. district computers or internet infrastructure