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Public continues push for release of non-public county minutes

September 22, 2011
OSSIPEE— A legislator highly critical of the past county commission board and what he calls their "secret society" paid a compliment recently to the current board for their efforts to inform and listen to the public.

At the Sept. 7 county commission meeting there was much discussion once again about whether or not the commissioners would be releasing any non-public minutes in the near future. And finding that balance between protecting reputations and serving the public's right to a transparent government is something the commissioners are taking on carefully and cautiously, much to the apparent dismay of some who attend the weekly meetings.

The commission heard from Carroll County Attorney Tom Dewhurst the previous week. He agreed that while the state law regarding the public's right to know allows for the release of non-public minutes once issues are settled, the public's right to know must be carefully weighed against protecting the reputations of people who are involved.

"I understand the attorney's struggle with this but think what happens is when you come out of the private sector and into the public sector you have to have that aha moment where you understand it is not your business, it is the people's business that you are doing," said former commissioner Chip Albee at the Sept. 14 meeting.

Albee, along with other regular attendees of the Wednesday morning meetings, has been pushing for commissioners to release minutes of the non-public sessions from the past year. It is common practice for the county commissioners, just as it is common for boards of selectmen and other commissions throughout the county, to hold their regular public business meeting and then, as the need arises, adjourn to non-public session.

Issues that can be addressed in non-public sessions are limited and include land transactions, pending legal matters, contract negotiations, hiring or discipline of an employee, security issues at the county jail, or the catch all "matters which, if discussed in public, likely would adversely affect the reputation of any person, other than a member of the body or agency itself." Minutes have to be kept of these sessions and can be sealed by majority vote of the board and kept private from the public.

"In the public sector….it's different. As commissioners you don't have contracts with builders, suppliers, attorneys or anyone else. The citizens of Carroll County have those contracts. The reason for 91A (NH Right-To-Know Law NHRSA 91-A) is so that we who have those contracts can stay fully informed about how you, our agents, are operating within those contracts or dealing with people in lawsuits. It's not a simply a matter of saying perhaps a company name can be besmeared by some negotiating ploy or some disagreement. That's not for you to say. The people who own the contract or agreement are the ones that make that determination. When a company or an individual does business with a government entity they give away their right to privacy because they are now contracting with 40,000+ people of Carroll County. The only time that there is protection of an individual is that small area of workers' rights when you have to protect the workers good name even if they are a government employee," said Albee.

County Commission Chairman David Sorensen agreed, in part, with Albee's comments but argued that the commissioners have to act on the advice of the county attorney in order to protect all people of the county. "I agree with you mostly. We also represent the taxpayers and we need to protect them as well. When we get into legal matters, if we release something that someone can come back at us for then that's going to affect the taxpayers and that's where we come in, to protect the taxpayers. We are elected officials and we are elected by the taxpayers. I agree to some extent to what you said in your comments. I also have to listen to the county attorney as to where he stands," said Sorensen.

"The county attorney is not the place you want to get your advice on 91A. Whatever protections you want to afford the taxpayers can easily be handled and still comport with 91A. Hiding behind 91A to avoid litigation is misapplying the law. There are very few cases out there where a company or individual has prevailed against a government agency for allowing information to go public. When you go into business with any public entity you understand your right to contractual privacy is pretty limited," countered Albee.

"One part of this that is not protected at all by 91A is the actions of any of the commissioners. You can't determine through whatever conversation whatever negotiation or whatever complaint or whatever issue that came up that for some reason a response by a commissioner or position by a commissioner is somehow protected by 91A. It isn't. There is no protection whatsoever for a commissioner or any elected official. There is no ability for any elected official to sue for libel. You can say anything you want about an elected official and there is nothing they can do about it. Also, that public official's actions can be fully scrutinized. So if any part of what you are doing in review of 91A minutes is somehow premised by the idea that we want to shelter some elected or county official from public scrutiny, that goes against the law…I have watched reasoning for going into non-public and there have not been that many employee grievances but a significant number of contractual conversations, legal conversation and other conversations that I am going to continue to beat the drum I think you need to let some of those minutes out into the air," said Albee.

The commissioners agreed that the consideration of releasing non-public minutes will be ongoing but had nothing new to report on the topic at their Sept. 14 meeting.

NH Representative David Babson listened throughout the lengthy discussion at the Sept 7 meeting and also to claims that two of the commissioners had an illegal meeting because they happened to be in the same room at the same time. While he continues to urge the current board to release non-public minutes as they are able, he did come to their defense. "They are running a $23 million business. There is no time to do everything absolutely perfect. There has been a huge change in the way the commission has been run in the past four years to their benefit. If you run a business you understand you can't do everything perfectly…I think they deserve a lot of credit to make these meetings far more open than the secret society it was five years ago," said Babson.

The county commissioners meet Wednesdays at 8:15 a.m. at the county administration building. Their meetings can also be viewed at www.governmentoversite.com.

Varney Smith
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