Tuesday, March 27, 2012

Letter: ORCSD Board Engaged in Illegal Non-Public Session at Last Meeting

Durham Resident Jenna Roberts sent the following to the School Board today, and also asked that we post it here:

Members of the ORCSD School Board:

The actions of the Board last Wednesday violated RSA 91A:2 and immediately call into question the process and the validity of the vote from that session.

Every non-public session requires a public notice. A non-public meeting was not posted. The appointment of the officers was on the agenda and no provision was made for that discussion to be in non-public. The Chair cannot simply call for a non-public session during a meeting of the Board. Therefore, the action of the Chair to call for a non-public session was a violation of RSA 91-A:2 (see below) [Editor's note: emphasis added by author is in italics].

It was the practice of the Board a few years ago to discuss members of the public they did not like or whom they wished to discredit in non-public, but that is not protected by law. Speaking to the merits, credentials and expertise of one person or another for a Board appointed position does not "likely affect adversely the reputation of any person" as specified in RSA 91-A. Even if it was allowable under the law, a notice of the session is required before the Board can move into non-public.

Perhaps the Board should develop a simple checklist before non-public meetings to avoid this infraction in the future to publicly verify that the posting was posted in 2 places, 24 hours before the session. I hope you will be more attentive to the not only the letter of the law but also the intent and judicial interpretations of RSA 91-A going forward.

Jenna Roberts,

91-A:2 Meetings Open to Public. –
I. For the purpose of this chapter, a "meeting'' means the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-a, VI, or the majority of the members of such public body if the rules of that body define "quorum'' as more than a majority of its members, whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously, subject to the provisions set forth in RSA 91-A:2, III, for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters. "Meeting'' shall also not include:
(a) Strategy or negotiations with respect to collective bargaining;
(b) Consultation with legal counsel; (c) A caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2; or
(d) Circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting; provided, that nothing in this subparagraph shall be construed to alter or affect the application of any other section of RSA 91-A to such documents or related communications.
II. Subject to the provisions of RSA 91-A:3, all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public. Except for town meetings, school district meetings, and elections, no vote while in open session may be taken by secret ballot. Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings. Minutes of all such meetings, including names of members, persons appearing before the public bodies, and a brief description of the subject matter discussed and final decisions, shall be promptly recorded and open to public inspection not more than 5 business days after the meeting, except as provided in RSA 91-A:6, and shall be treated as permanent records of any public body, or any subordinate body thereof, without exception. Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including a nonpublic session, shall be posted in 2 appropriate places one of which may be the public body's Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings. An emergency shall mean a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the public body, who shall post a notice of the time and place of such meeting as soon as practicable, and shall employ whatever further means are reasonably available to inform the public that a meeting is to be held. The minutes of the meeting shall clearly spell out the need for the emergency meeting. When a meeting of a legislative committee is held, publication made pursuant to the rules of the house of representatives or the senate, whichever rules are appropriate, shall be sufficient notice. If the charter of any city or town or guidelines or rules of order of any public body require a broader public access to official meetings and records than herein described, such charter provisions or guidelines or rules of order shall take precedence over the requirements of this chapter. For the purposes of this paragraph, a business day means the hours of 8 a.m. to 5 p.m. on Monday through Friday, excluding national and state holidays.
III. A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency'' means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting. Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.

Source. 1967, 251:1. 1969, 482:1. 1971, 327:2. 1975, 383:1. 1977, 540:3. 1983, 279:1. 1986, 83:3. 1991, 217:2, eff. Jan. 1, 1992. 2003, 287:7, eff. July 18, 2003. 2007, 59:2, eff. July 31, 2007. 2008, 278:2, eff. July 1, 2008 at 12:01 a.m.; 303:4, eff. July 1, 2008.

91-A:3 Nonpublic Sessions. –
I. (a) Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information, or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No public body may enter nonpublic session, except pursuant to a motion properly made and seconded.
(b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present.
(c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.
II. Only the following matters shall be considered or acted upon in nonpublic session:
(a) The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.
(b) The hiring of any person as a public employee.
(c) Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting. This exemption shall extend to any application for assistance or tax abatement or waiver of a fee, fine, or other levy, if based on inability to pay or poverty of the applicant.
(d) Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community.
(e) Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or any subdivision thereof, or against any member thereof because of his or her membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled. Any application filed for tax abatement, pursuant to law, with any body or board shall not constitute a threatened or filed litigation against any public body for the purposes of this subparagraph.
(f) Consideration of applications by the adult parole board under RSA 651-A.
(g) Consideration of security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees.
(h) Consideration of applications by the business finance authority under RSA 162-A:7-10 and 162-A:13, where consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application.
(i) Consideration of matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.
(j) Consideration of confidential, commercial, or financial information that is exempt from public disclosure under RSA 91-A:5, IV in an adjudicative proceeding pursuant to RSA 541 or RSA 541-A.
III. Minutes of meetings in nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.

Source. 1967, 251:1. 1969, 482:2. 1971, 327:3. 1977, 540:4. 1983, 184:1. 1986, 83:4. 1991, 217:3. 1992, 34:1, 2. 1993, 46:1, eff. June 7, 1993; 335:16, eff. June 29, 1993. 2002, 222:2, 3, eff. Jan. 1, 2003. 2004, 42:1, eff. Jan. 1, 2005. 2008, 303:4, eff. July 1, 2008. 2010, 206:1, eff. June 22, 2010.


  1. Hi Folks.

    I don't think the new board had an illegal meeting, and I think their reason for going into non-public was kosher also. Here's why:

    FIRST: Can the board call a non-public meeting in the middle of a public session, when that session is duly posted? YES, IT CAN.

    This is from the NH AG's 2009 Memo on RTK:

    p. 9: "If the body decides to go into non-public session during an open meeting, the notice for the open meeting will suffice. If both public and non-public sessions are planned in advance, the notice should so state."

    (Here's the link: http://doj.nh.gov/civil/documents/right-to-know.pdf)
    So it is not true that "[e]very non-public session requires a public notice." That is true of non-emergency PUBLIC meetings, I believe. Also, I was at the meeting, and the board clearly had not planned to go into non-public in advance (it was their first meeting!) but they unanimously voted to do so in the meeting. You can check the tape on the SB web site. http://www.orcsd.org/index.php?option=com_content&view=article&id=299&Itemid=21

    2. DID THE BOARD HAVE A LEGITIMATE REASON TO ENTER NON-PUBLIC? I THINK SO. I believe the treasurer is a public employee. As you note above in RSA 91-A:3 II (b), that is a legitimate reason to enter non-public. So they had a legitimate reason for going into non-public by virtue of (b) alone. I wouldn't rule out condition (c) regarding protecting the reputations of members of the district, if anyone in the meeting wanted to argue that a candidate was not qualified or had some problem.

    3. I certainly could not tell you what was said in the non-public sessions of previous boards--or of any boards, for that matter. Those are non-public and by definition confidential, so I am not sure how Ms. Roberts knows that anyone was trying to discredit citizens in those meetings, unless someone violated confidentiality and illegally told her.

    Congratulations to the new board, and I wish them the best of luck.

    Ruth Sample

  2. Clearly, there is only one way to resolve this issue and I think the majority of the community will agree. WE MUST SUE THE SCHOOL BOARD!

  3. Ruth-

    I appreciate your research to find the 123 page RSA-91-A guide produced by the DOJ. As this guild shows, this is not a simple law and there are many interpretations of the language, which has led to many problems and a number of lawsuits across the state and in our district.

    However, you are incorrect in your understanding of the Treasurer position, and the law related to appointments. The Treasurer is not an employee. It is a legally-mandated, appointed position with a stipend and a term limit. It is a legal check-and-balance on the day-to-day finances and accounting of the District. The Board is required to elect these people in public session.

    Per the DOJ report:

    (2) The hiring of any person as a public employee. RSA 91-A:3, II(b).

    ***Note: Filling a vacancy of an elected or appointed public office is an “appointment” and is not the “hiring” of a public employee. Interviews and deliberation on filling a vacancy in an elected office therefore must occur in public session. Lambert v. Belknap County Convention, 157 N.H. 375 (2007).***

    This was a clear violation of the law. Further, had the Board been discussing a potential employee, they would have been correct to cite RSA 91-A:2 in order to go into non-public session. Instead, they cited 91-A:3 II (c) “items that would adversely affect someone's reputation.” From this I can surmise that members of the Board anticipated speaking ill of the candidates in such a way that it would adversely their reputation. There is no need to know what the conversation was, only that the intent was clear.

    The Right To Know law, in some areas, is complicated and often vague. I would point to the meeting notice of nonpublic as a vague language. Whether mandated or not, past practice of the District has been to provide a separate notice of a non-public meeting. I think this practice should be maintained. I would encourage all members of the Board to err on the side of caution and stick to a strict interpretation of the law. This requires the Board to act above the minimum requirements of the law. Here they chose to do less than what previous Boards had done, which is disappointing.

    Open and transparent government is essential. We need the community to be involved, engaged and willing to serve at many levels: Board members, committee volunteers, etc. It should not be this complicated for the elected body to understand the law on its face. Similarly, it is the community who also must review the law to hold their elected officials accountable. If this law cannot be simplified and easier to understand then these conflicts will remain.

    I believe the legislation related to RSA 91-A should be reviewed and revised. In its current form it has only been in use for a few years. As a state legislator, I hear many complaints at home and around that state that many schools and municipalities misuse, misunderstand or unknowingly misapply RSA 91-A. The language should be less vague and easier for elected volunteers and members of the public to understand. Specifically, I think nonpublic should be better defined, and so-called non-meetings should not exist. I believe that there is no meeting for which the public should not be aware.

    I am interested in gathering feedback this summer from members of the community and former/current Board members about RSA 91-A and improvements that could be made. If anyone is interested in working with me or giving me feedback, please email me: jenna.roberts@leg.state.nh.us.

    Thank you for writing, Ruth. I am happy to meet with you if you would like to discuss this issue further. Whether we agree on our interpretation or not, the discourse is vital and I think we are both striving for the same goal. I hope that we can work together to support the Board and increase transparency and constructive dialogue in the community. I am hopeful that our new Board and new administration will bring positive changes to our district.



    1. Jenna,

      I commend you for posting this information for all to see in it's stark and revealing expose of the truth. No need to compliment anyone about "research", I'm sure it was only "stumbled upon" while surfing the net to check up on the backgrounds of the new board members, that's what we do to find answers to legitimate questions. Can't wait to see our RTK Manager stand up for what's right and sue our new collection of convicted criminals and law-breakers on this board. If not, wouldn't that call into question the motive of past lawsuits?

  4. I’m not a lawyer so I can’t say definitively what’s right here, but I must say that I am disappointed in our newly-elected officials. For a bunch who campaigned on promises of openness and transparency, they appear to have stumbled badly right out of the gate.

    It’s especially frustrating because it’s not as if there is a lack of better models out there. For example, a few years ago I applied for an appointed position as a Trustee of the Trust Funds in Durham. I filled out a standard form indicating my interest, and submitted a cover letter along with it. A week or so in advance, I was asked to attend the Town Council meeting at which the vacancy was to be discussed. The two other candidates and I were given a brief opportunity to state our interest in and qualifications for the position, and the Council then debated, in public, which of the three of us should receive the seat.

    In my case, it was clear that I was the least qualified of the candidates; one had extensive experience in managing municipal bonds, the other had served several terms as a Trustee before. I left knowing exactly why I hadn’t been chosen, and satisfied that the selection had been carried out in a fair and open manner.

    Last Wednesday, this new Board had an opportunity to show the District that they are committed regaining the public’s trust by changing the way they do business. Instead, they frittered away that opportunity by engaging in the same sort of behavior they (rightly) criticized former Boards for. I sincerely hope they will do better in the future.

    --Tom Bebbington

    [In the interest of full disclosure, I should note that Jena Roberts and I are married to each other. I’ll leave it to the reader to decide how, or if, that has influenced my thinking on this issue.]