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Investigation unable to prove Kenney illegally taped meeting

March 27, 2014
OSSIPEE — A seven-month investigation has concluded and found there is not enough evidence to prove, beyond a reasonable doubt, that Carroll County Commissioner Asha Kenney illegally recorded a July 2013 non-public meeting.

The investigation was sparked by the release of the commissioner's July 10, 2013 non-public meeting minutes that included the sentence, "during the discussion it was discovered that Commissioner Kenney had been covertly taping the meeting in direct violation of a vote taken by the Board about a month ago to end the practice."

In response to those non-public minutes and the response from her fellow commissioners that they were not inclined to pursue any action, this reporter filed an inquiry with Carroll County Sheriff's Department, questioning whether or not Kenney had committed a felony under NH RSA 570-A:2 "Wiretapping and Eavesdropping." The matter was referred to Strafford County Attorney's Office for investigation.

Unable to keep a recording secretary and following Kenney's refusal to type the non-public meeting minutes, the board of commissioners publicly stated several times during February through April 2013 that they had a plan for keeping track of what was going on during non-public sessions. They stated they would be audio recording all non-public sessions. Once a recording secretary was hired, that person would be given all the tapes and then would transcribe months' worth of sessions.

Forward to May 15, 2013 when Commissioner David Sorensen announced the board had received advice and would no longer audio record non-public sessions.

There were six people in attendance at the July 10, 2013 non-public session including the three commissioners, recording secretary, farm manager, and jail superintendent. On July 17, 2013, commissioners voted to release the minutes of that session that were prepared by Commissioner David Babson. At that July 17 meeting, during the public comment period, Sorensen and Babson explained that during the closed session of July 10, they heard a "beep, beep, beep" and discovered the noise was coming from Kenney's tape recorder. A "very heated discussion" ensued during that non-public session with Kenney insisting that she needed to keep recording the sessions "regardless of the Board's vote" to end the practice. Babson asked Kenney to resign her seat because "she had no right not to abide by the vote of the board of commissioners." At the July 17 meeting, when asked if the board was going to pursue any legal action against Kenney, Sorensen said he had no intention of doing so and Babson said, "She (Kenney) doesn't care what goes on here. She's going to do whatever she wants." Kenney, quick to defend herself against the allegations, called the matter "pure nonsense" and a "witch hunt" and dismissed the issue as "just a set-up" against her.

On a right-to-know request, Strafford County Attorney's Office released the 42-page investigation in full. The investigation was conducted by Chief Investigator William Irving with review completed and a conclusion letter written on Feb. 25 by Assistant Strafford County Attorney Amy Feliciano. In her letter, Feliciano concluded, "…there appears to be circumstantial evidence that the meeting was recorded, however, there exists no direct physical evidence such as the actual recording which would be necessary to prove this matter beyond a reasonable doubt" and further concluded that "the State has determined it will be unable to pursue any charges in this matter."

The investigation revealed the practice of recording nonpublic sessions from February 2013 through May 2013. Witness statements indicate the recording of non-public meetings "had been occurring for a period of time without the knowledge of all individuals present at the meetings." While the commissioners were all aware of the practice, other participants in the non-public sessions were not made aware this was happening. "Given this information, should the State proceed with charges against Ms. Kenney, based on the circumstantial evidence that exists at this time for the July 10, 2013 meeting, all of the commissioners could be criminally liable for the prior practice as they had knowledge of the recordings," according to Feliciano. It now appears, according to the letter, that all parties are aware of the illegal nature of this type of conduct and have discontinued the practice.

According to the investigation documents, both Sorensen and Babson told the investigator that a vote was taken in the non-public session of May 8 that the board would no longer be audio recording non-public sessions. There remains no proof this vote ever happened as the minutes from that session, prepared by Kenney, contain one sentence and it is unrelated to recording minutes.

It doesn't appear that audio recording the non-public sessions was of any benefit. According to the most recently updated spreadsheet on the County's website, there remains 10 sets of non-public meeting minutes that were never done during the January through May 2013 timeframe. Further, Kenney has said publicly she destroyed all audio recordings of those sessions so it appears that no record of those sessions, written or recorded, exists.

After a month of trying, unsuccessfully, to reach Kenney by telephone, Irving attended the Sept. 25, 2013 commissioner's meeting and during the public comment period attempted to get answers from Kenney. During that meeting, Kenney admitted to making the recordings of non-public sessions but said they have all been erased and she no longer has them. Kenney refused to answer any more of Irving's questions. "Why are you asking me all of these questions? Am I being interrogated? I think it is very inappropriate for you to come here and ask questions like that. I have no more comments," said Kenney. When Irving pressed for more answers, she asked, "Do you understand what no more comments means?"

As clerk of the commission, Kenney is statutorily required to "keep a record of the proceedings of the commissioners." Back in May 2011, Kenney announced that her main goal during her four-year stint as commissioner would be to get the meeting minutes in order. "I'm straightening out the minutes and then I will go on to the next issue," said Kenney at the May 4, 2011 meeting. By all accounts, the minutes remain anything but straightened out, though the board does seem to be getting a handle on it, with the help of their current recording secretary. Kenney attempted to axe the position of recording secretary when she requested at the March 24 delegation meeting that the delegation vote to cut the $6,500 annual salary paid to the secretary, thus eliminating the position. Kenney suggested that there was no need to have a recording secretary because the commissioner's administrative assistant should be preparing the weekly minutes in addition to her regular job duties. Both Babson and Sorensen spoke in favor of keeping the recording secretary position. Rep. Mark McConkey (R-Freedom) made a very pointed comment in response to Kenney's request, "I have never met a group of people (commissioners) so incapable of keeping minutes," said McConkey, and the delegation dismissed Kenney's request, opting to keep the money for the position in the budget.

Throughout her time as clerk of the county commission, Kenney has maintained she is not responsible for making sure meeting minutes are done. Rather, she has stated her only responsibility is to make sure they are stored properly. There have been those, including her fellow commissioners, that disagree, to a point that it even sparked legislation this year to re-write the clerk's job description in NH RSA 28:2. In legislation sponsored by Carroll County Delegates Karen Umberger (R-Conway), Tom Buco (D-Conway) and Gene Chandler (R-Bartlett) and that is expected to pass NH Senate vote, commission clerks will in the future be charged with not only storing the minutes but composing, "or be responsible for the composition of" all proceedings of the county commissioners. Further the law, originally passed in the 1800s, will be updated to eliminate the need for counties to store documents in a safe but rather allow the documents to be stored in "a secure location."

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Martin Lord Osman
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