Court rules in favor of Moultonboro in Right to Know case
October 28, 2009
MOULTONBORO — A judge has upheld the town's actions in hiring a new police chief, saying they were not a violation of the Right to Know law.
In an order dated Oct. 19, Carroll County Superior Court Presiding Justice Steven Houran ruled in favor of the town on a petition filed by resident Paul Punturieri that the town's process to hire a new chief had been done within RSA 91-A.
Punturieri filed a petition in Carroll County Superior Court on Aug. 27 saying the town had not followed the Right to Know Law in the process.
In February, Police Chief Scott Kinmond announced his run for the position of Road Agent and intention to retire from the police department if he won. Kinmond won the election in March and announced his retirement effective in September. A hiring committee consisting of Belknap County Sheriff Craig Wiggin, Merrimack County Sheriff Scott Hilliard, Auburn Police Chief Ed Piccard, Moultonboro resident Peter Welley, and Peterborough Town Administrator Pat Brenne conducted an extensive search, review, and interview process to fill Kinmond's position. Thomas Dawson was ultimately hired for the position.
According to the complaint, the members of the board met in non-public session on an unannounced date to discuss, plan and coordinate the process it would use to hire a new police chief. The petition claims that this was in violation of New Hampshire's Right to Know Law, or RSA 91-A, and all discussion of how the police chief was going to be replaced, the formation of the search committee, and who would be on that committee should have taken place in public session.
The town disputed the petition, saying the process was for the hiring of a town employee and rightfully took place in non-public session under RSA 91-A. The town requested that the court dismiss the petition and requested reimbursement of attorney fees.
A hearing was held on Oct. 5 and after subsequent review Justice Houran ruled that no violation of Right to Know had occurred.
The ruling states that Punturieri stated that the hiring of the Chief was not subject to exemption from the Right to Know Law's public session requirements.
"Resolving the issues requires the court to determine whether filing the position of Moultonboro Police Chief involves hiring a person as a public employee or electing or appointing a person as a public official," the ruling states.
Houran cited Lambert v. Belknap County Convention, where it was determined that appointing an interim Sheriff pending the next election was not an act of hiring but appointing. If Moultonboro was appointing a Chief and not hiring one, the actions to appoint would not be eligible under RSA 91-A:3, II(b) to have the process done and acted upon in nonpublic session.
In the case of Moultonboro, the town was looking to hire a Chief in a hiring process like any public employee, which is eligible for nonpublic review under the law.
Punturieri stated the town set a precedent when hiring a Town Planner in public session, though the ruling states this does not have a claim in the Right to Know law.
"Likewise, the court has no information before it concerning whether the town could have used nonpublic sessions in the Town Planner hiring process," the ruling states, "but assuming without deciding that it could have, a decision to do so in public session does not bind the town to do so when considering other positions."
Examining Punturieri's claim that the announcements of meeting dates, posting meeting notices, and for going into nonpublic session were not met, Houran wrote the court also reviewed meeting minutes and agendas from public and nonpublic sessions of the Board of Selectmen and police chief screening panels.
"The records before the court show shat the meetings of the SelectBoard and of the Police Chief screening panel were properly noticed and that, consistent with RSA 91-A:3, I, every nonpublic session was preceded by a motion properly made in public session stating the specific exemption under RSA 91-A:3, II relied on as a reason for the nonpublic session," the ruling stated.
Houran wrote the court did find one "anomaly" in the citation of the law to go into nonpublic for matters involving reputation as opposed to hiring, though it was determined after review of the minutes this was done to discuss background checks and the court said this qualified if for nonpublic session.
"In sum the general assertion Mr. Punturieri makes is that, while things such as candidate interviews and review of resumes and other personnel documents can properly occur in nonpublic session, the balance of the hiring process does not qualify for consideration in other than public session," the ruling stated. "For the reasons set out above, the court disagrees, and instead determines that the process used by the town of Moultonboro to select and hire its police chief complied with the Right to Know Law, RSA Chapter 91-A."
The court also denied the town's request to seek attorney's fees, saying Punturieri's pursuit of the action was not "in bad faith, frivolous, unjust, vexatious, wanton, or oppressive as to warrant an order for attorney's fees."