If the City of Nashua and its three “independent” arts center corporations were truly separate, you would expect them to act that way when legal trouble arrived. They didn’t.
Instead, they entered into a Confidentiality and Common Legal Interest Agreement, a joint defense pact that allowed them to operate as a single, coordinated legal unit while preserving the appearance of separation.
At its core, this agreement did one thing: it let the City and the corporations share privileged information freely, including strategy, legal analysis, internal communications, draft pleadings, without risking disclosure to the public under New Hampshire’s Right-to-Know law. That’s not speculation. It’s written directly into the agreement.
The parties explicitly state that their shared goal is to exchange information “without waiver of any applicable privilege… including any exemption from RSA 91-A.” Read that again. This wasn’t just about legal efficiency. It was about protecting information from public disclosure.
Private on Paper — Unified in Practice
The City had its lawyers. The shell Corporations had theirs, at least on paper. But this agreement erased that boundary in practice. It allowed:
- The City’s legal team to share internal knowledge and strategy with the corporations
- The corporations’ counsel to do the same in return
- Both sides to build a unified defense while shielding those communications from the public
And it went even further. If any of that shared information was later requested or subpoenaed, the agreement required the receiving party to notify the others and not oppose efforts to block disclosure. In other words, Everyone was contractually obligated to help keep the information hidden.
The Piece That Changes Everything
Now layer this on top of what we already know:
- The City paid the legal bills
- The corporations had no clear engagement agreements with counsel
- There is little to no evidence of board-level authorization for the legal strategy
- The defense of the RTK case was already deeply intertwined
And then this document appears formalizing a “common and mutual legal interest” between all parties. This is not how independent private corporations behave. This is how aligned entities behave.
The Quiet Tell: Who Actually Signed
One detail in the agreement speaks volumes. It wasn’t signed by corporate officers. It wasn’t approved by boards. It was executed by the attorneys. McLane Middleton signed on behalf of the corporations. City counsel (Bolton and Leonard) signed on behalf of the City.
Not the people supposedly in charge but the lawyers. That raises a simple question. If these corporations were truly independent, where were their decision-makers?
A Line That Only Exists on Paper
The agreement goes out of its way to say what it is not. The Agreement does not create a joint venture nor does not establish an agency relationship nor does not merge the parties into one. But those disclaimers only matter if the underlying reality is separate. Because in practice, this agreement accomplished exactly what those disclaimers deny:
It created a shared legal defense structure, built on pooled information, coordinated strategy, and a mutual interest in keeping that information from public view.
The Question That Won’t Go Away
This agreement doesn’t answer every question. But it sharpens the most important one:
If the City and these corporations needed a formal agreement to share information, coordinate strategy, and jointly resist public disclosure…how separate were they to begin with? And more importantly —was the line between “public” and “private” ever real, or was it simply drawn to keep the public out?
Why This Matters Legally
Several years ago, a Right-to-Know lawsuit asked a simple question:
Are these corporations truly private, or are they performing a government function? The City and 201 Corporations, after two years, consented that the two non-profits were public corporations subject to RSA 91-A. In fact, the Supreme Court affirmed that the two non-profits were owned by the City of Nashua. But, the private company, NPAC Corp. where all the public money landed, remained shuttered to public information.
If all shell companies are functioning as arms of the City, then New Hampshire’s Right-to-Know law applies. On appeal, the New Hampshire Supreme Court ordered the lower court to perform a government function test on NPAC Corp. to answer that question. That test looks at factors such as:
- who funds the entity
- who controls it
- who directs its activities
- whether it performs a governmental purpose
The documents surrounding the legal representation raise those questions again.
If the City pays the legal bills, signs the engagement agreements, and controls the defense while the corporations themselves have no governance records approving the scope of work, the fee structure or actions, then the line between “private corporation” and “public instrumentality” begins to blur.
The Transparency Gap
The Performing Arts Center was built with public money. The legal defense surrounding it has been paid with public money. Yet when the public asks how NPAC Corp operated, the answer had been the same –they are private entities.
But private corporations normally behave like corporations. They have boards. They approve contracts. They review major expenditures. The absence of those records raises the question that the government function test was meant to answer in the first place.
Was NPAC Corp ever truly private at all?
This Is What Transparency Looks Like?
Sunshine Week celebrates transparency in government. But transparency laws only work when the public can see how power is actually exercised.
When public money flows through corporate structures that leave little trace of corporate decision-making, the question is no longer simply about legal invoices. It becomes a question of who really holds the reins of public projects carried out in the public’s name. The documents don’t just raise questions. They point in one direction.
