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Right to Know lawsuit update.

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[This is also posted at GraniteGrok]
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Friday was the hearing for the Right-to-Know suit filed by me and former Laconia Mayor Tom Tardif under NH's Right-to-Know law (RSA91-A). (Click here to read a prior posting with the details and here for the Citizen newspaper's reporting on the matter) As expected, our elected representatives vigorously defended their actions instead of simply dropping back and doing the right thing in compliance with the law. You know-- default in the direction of openness. Instead, it's time to circle the wagons...
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One of the things we asked the court for was to deny the assumption of the Sheriff's position scheduled for Monday, July 9th based on our contention that the secret ballot used in an open meeting by the Belknap County Convention was illegal. Unfortunately, the judge decided that no harm would come from this happening, no matter what he ultimately rules on our overall case. While he's right that the matter is one of process versus whether the person is suited for the job, which nobody questions, it validates the egregious action. Furthermore, I still believe this leaves the county wide open to future messy litigation as defense attorneys seek exoneration of clients using all available means, at undoubtedly great cost to the taxpayers.
I believe we successfully made our overall point and will be found correct by the judge. What was interesting was that the county's attorney framed the convention's action as being an exception to the Right-to-Know law because they held an ELECTION, which is exempted from the statute. The problem for the county is, if that were true, then the election would have to be under the auspices of one of the three types as defined by NH's election laws. If that's the case, then the county violated ELECTION law instead of the RIGHT-TO-KNOW law. Either way, a body comprised of those we elect to MAKE the laws has broken some law, thus causing our honorable

lawmakers to become lawbreakers!

Here is the testimony I gave to the Belknap Superior Court today at 9:00AM:
Your honor,
If the use of a secret paper ballot by a public body in a public meeting, in this case, the Belknap County Convention, is allowed to stand, I fear the citizens of the county, and even the whole state, will be negatively impacted.
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The law is quite simple. The Right to Know law- RSA 91A clearly includes a meeting of the Belknap County Convention as a “public proceeding”, therefore making the body subject to all of the rules governing such events. (91-A:1-a, I, d.) To make an exception in this case, one would need a new law, as none presently exists.
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RSA91-A:2, II states that
“All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies. Except for town meetings, school district meetings and elections, no vote while in open session may be taken by secret ballot.”
I’m not sure what part of this the County Convention didn’t understand. It plainly says “NO Vote while in open session may be taken by secret ballot.” Given that we’re not talking about a town or school district meeting, the only other exception allowed for a secret ballot vote is for an election.
It has been my observation and experience that whenever an unexpired term of an elected position such as Councilor, Alderman, Selectman, School Board member, Budget Committee member, or others, becomes vacant, law and charters provide that replacements are "appointed" by majority vote of the remaining members of the body involved.  In fact those very bodies, historically accept applicants and then interview applicants in full public view, not in non-public sessions.  Following the interviews, any member of the board can make a nomination and once receiving a second, a vote is taken by a show of hands and if a roll call vote is called for, a record is kept of who voted in the majority and who voted for the other candidates or abstained. I have witnessed this type of process more than once in my local town and in surrounding communities. In fact, on more than one occasion, the use of a secret ballot was discussed, but then cast aside when checking the very plain language of the law.
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In this case, the only difference is that the Sheriff is not a member of a board, or body, but is instead a stand alone elected position. In the event of this elected position becoming vacant with an unexpired term, instead of fellow body members appointing someone—because there are none-- that duty falls to the County Convention by law. (661:9- I)
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The provision states
“If a vacancy occurs in the office of county sheriff, county attorney, register of deeds, or county treasurer, the members of the county convention shall fill the vacancy for the unexpired term by majority vote.”
Your honor, for some reason, members of the Belknap County Convention have construed the aforementioned passage to mean that they conducted an ELECTION, thereby giving an exception to the law that says NO vote while in open public session may be taken with a secret paper ballot.
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This was not an election, and everybody knows this. RSA defines an election here in NH:
""Election'' shall mean the choosing of a public officer or of a delegate to a party convention or the nominating of a candidate for public office by voters by means of a direct vote conducted under the election laws. The term does not include caucuses or conventions.”
It continues,  RSA 652:2 states that a
“"Regular election'' shall mean an election required to be held periodically under the election laws, a city charter, or a local by-law, and which is held in accordance with the same. Any other election shall be a ""special election.'' As used in the election laws, ""election'' shall mean a regular election.”
There is no way that the choosing of a new Sheriff to fill the unexpired term by the County Convention could be considered an election, regular, or special, as defined by any state law. No matter how one might try, there is no law that allows for what the County Convention has done in this matter. If one accepts that they held some sort of “election” not bound by the Right to Know Law, then they violated several state laws governing elections. That, however, is not my contention here today, as I submit that there was no election.
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The official record of the June 25th meeting of the Belknap County Convention states that a 13- 1 majority of that body’s members knowingly voted in the affirmative to conduct the vote by secret ballot to appoint a new Sheriff to fill the vacancy caused by the resignation of the duly-elected Sheriff.  The vote to appoint was then held, using the secret paper ballot, in violation of the law.
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As I stated at the opening, it is my fear that if this egregious and blatant violation is allowed to stand, it has the potential to cause harm to both citizens of the county and the state. Why? It’s simple. What if the Sheriff gets involved in some legal matter and a savvy defense attorney or some other party raises the specter of his illegitimacy caused by the means of appointment? To run the risk of jeopardizing important legal matters is not one that I, as a citizen of Belknap County, wish to have happen.
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Beyond that, the members of this County Convention are also the ones who go to Concord to make the laws that we must all live by. To allow them to place themselves above the law is a danger to all citizens in the state. To allow this act to pass, thereby giving tacit approval to this method of public appointments would cause a statewide erosion of the Constitutionally guaranteed right to openness and accountability in our government.
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In her most recent memorandum on the Right to Know Law, the NH Attorney General writes:
The people’s right-to-know is embedded in our Constitution. When the current Constitution was adopted on June 2, 1784, the accountability to the people of the people’s elected representatives and appointed public officials was established in Part 1, article 8, which read:
All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.
In 1976, the people of New Hampshire amended Part 1, article 8 of our Constitution, reinforcing the existence of a right of access to public meetings and records, by adding the following two sentences:
Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.
Attorney General Ayotte, again from her memorandum, sums it up best:
“The public’s right-to-know what their government is doing is a fundamental part of New Hampshire’s democracy. For our government to remain of the people, by the people, and for the people, while protecting individuals’ privacy, it is essential that the people have reasonable and open access to the information that will inform the people what their government is up to and how it is performing.
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With the exception of the public business conducted at traditional annual town and school meetings, New Hampshire uses a representative form of democracy. The people’s elected representatives set and carry out most public policy. New Hampshire’s Constitution and the Right-to-Know Law ensure that the public has reasonable access to public meetings and public records that show what those elected representatives and the appointed public officials that carry out our laws are doing.”

The problem, your Honor, is that our lawmakers have now become lawbreakers.

That is why we have come before this honorable court today. We are asking the court to undo the wrong that has been done against the concept of open, representative government. We ask the honorable court to order the Belknap County Convention to immediately comply with the law. We are asking this court to invalidate the actions taken in opposition to the letter and spirit of the law. We believe that this honorable court cannot condone or pass off the action of the County Convention as some mere technical violation. To do so endangers the very concept of NH’s system of representative government.
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The petitioners have been forced to incur costs to defend against an action by our elected representatives that should not have been necessary, had the Convention merely followed the law.
In addition to the testimony and the original filing, we submitted the following "Memorandum of Law" to the judge:
Doug Lambert & Thomas A. Tardif
v.
Belknap County Convention, et. all

 

MEMORANDUM OF LAW

 

 

 

 

            NOW COMES Doug Lambert, ProSe who’s and Thomas A. Tardif, ProSe, in the above entitled matter says as follows:
Fact
1.              Belknap County Sheriff Dan Collis resigned.

 

2.              On 29 May 2007 the Belknap County Convention held a meeting. The 14 member quorum, by role call vote, entered non-Public session per RSA 91-A-2.  It was announce that the applications for seven candidates have been sent to each Delegation members.
3.              On 11 June 2007, the County Convention held a meeting.  A list of question created by a sub-committee was presented and the “interviewing Process: Rep. Millam suggested:
a.       Develop in public session the process for filling the position of Sheriff.
                                                               i.      Interview applying candidates in non-public session for the purpose of screening the candidates for appropriateness and eligibility.
b.      Identify two (preferably) candidates for final interview in public session.
c.       Conduct the final interview in public without public comment.
d.      Appoint a person to fill the unexpired term of Sheriff. (Emphasis added)

 

4.    On 11 June 2007, absent and RSA 91-A exception the commission entered non-public session by role call vote.  Interview commence at 6:35.  At 9:15 p.m. by motion they reduce field to two: Nielson and Wiggin.  Unanimous, 9 -5, Motion passed.  At 9:45 p.m. they came out of non-public.  The minutes do not reflect the required announcement that they had made a decision in non-public session.

 

5.    On Monday 25 June 2007, the Belknap County Convention, comprised of 15 of the 18 member representatives, met to discuss the “appointment”, from the two finalists for Belknap County Sheriff, to fill the unexpired term of Sheriff Dan Collis.

 

6.    On Monday 25 June 2007, 14 representatives present by a 13 –1 vote that the voting would be “by secret ballot.
7.    On Monday 25 June 2007, the convention took a second vote by secret paper ballot;
8.    Results of voting:
Nielsen – 4
Wiggin – 10
Rep. Arsenault Abstained.
 
9.    On 25 June 2007 Wiggin by10 to 4 majority vote was appointed Belknap County Sheriff to succeed Dan Collis as Sheriff and will assume his duties on 9 July 2007. .
Law

 

RSA 652:1 Election. – ""Election'' shall mean the choosing of a public officer or of a delegate to a party convention or the nominating of a candidate for public office by voters by means of a direct vote conducted under the election laws. The term does not include caucuses or conventions. The types of elections are further defined in this chapter. (Emphasis added)

 

652:3 State Election. – ""State election'' shall mean an election to choose a federal, state, or county officer or a delegate to a party convention or to nominate a candidate for federal, state or county office. The 3 types of state elections are defined in RSA 652:4, 652:5 and 652:6
            Accordingly, the Secretary of State is and would have been involved had the Belknap County in Convention were electing the interim Sheriff to fill the unexpired term of Sheriff Dan Collis.

 

            In addition it is universally accepted that State election Laws which embrace County election are determined by Plurality, not a simple majority.

 

RSA 661:9 County Officers.
    I. If a vacancy occurs in the office of county sheriff, county attorney, register of deeds, or county treasurer, the members of the county convention shall fill the vacancy for the unexpired term by majority vote. (Emphasis added)

 

            Appointments must be by majority not plurality as in State Wide Elections.

 

RSA 91-A:1 Preamble. – Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. (Emphasis added)

 

RSA 91-A: 2, II.. States in part  “… All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies. Except for town meetings, school district meetings and elections, no vote while in open session may be taken by secret ballot. …” (Emphasis added)

 

            Clearly, the elected representative, in convention, violated the law by;  1) Voting to vote by secret ballot, in order to protect their individual reputation and not that of the applicants.  It is well documented that whenever an unexpired term of an elected City Councilor, alderman, Selectman School Board member becomes vacated by Death, resignation or removed from office for cause, a quorum of the those boards, accept nominations, conduct public interviews, and then by nomination and second’s, a vote is taken.  Then by majority vote an individual is “appointed” to fill the unexpired term till the next general election.
            Had the appointment of Sheriff been an election, the Secretary of State would have supervisor authority of the election, which he did not and does not have.  The election Laws are clear the Sheriff is elected by plurality vote as all other State and County officials.  All candidate whose name are place on the ballot of a patrician election whether they be Republican, Democrat, Independent or a write-in will be elected on the basis of receiving the most votes, a plurality vote. 
            The Belknap County Convention members are only empowered, by the Legislature, to fill an unexpired term of its Sheriff by appointment as determined by majority.  The Laws of the State of New Hampshire are not ambiguous, it is the Sheriff that hires and fires employees of the Sheriff Department.   The convention does not hire any employees.

 

 

RSA 91-A: 3, II , (c)  Nonpublic Sessions; states in part that “…Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself, unless such person requests an open meeting. (Emphasis added)

 

            No exception is applicable for the Belknap County Convention to vote in non-public session or secrete ballot regarding the appointment of Belknap County Sheriff.

 

RSA 91-A:8,II Remedies. – The court may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation.
           
            No irreparable harm will result if the secret paper ballot vote is ruled by the honorable court in violation of RSA 91-A.
            However, if the violation is ruled as a “technical” violation and allowed to stand, the potential irreparable financial harm to all Belknap County taxpayers for the cost of legal challenges that most likely follow any action taken under the stewardship of a Sheriff appointed in violation of RSA 91-A and other existing state statues.
            Clearly at any time the Belknap County Convention could have and may, prior to 9 July 2007, convene an “emergency” meeting or a special meeting to appoint the Sheriff in accordance with all provision of state law.  Therefore, pending such action this honorable court is compelled to invalidate the actions taken on 25 June 2007 and enjoin Belknap County Sheriff Craig Wiggin from assuming his duties on 9 July 2007.  No irreparable harm can result if Belknap County Sheriff Craig Wiggin does not assume his duties for 1 hour, one day or even one week, whatever time the convention feels it needs to simply appoint a Sheriff the right way.

 

            In the above cites matter, the Law makers became law breakers.  When in doubt these 18 legislatures could collectively or individually seek the legal opinions of the Attorney General or the Secretary of State.

 

            The petitioners deserve out of pocket expenses or other relief awarded pursuant to this chapter, the court may issue an order to enjoin future violations of this chapter.
                                                                         Respectfully submitted,

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