Newmarket Town Council violates New Hampshire Right to Know Law!

In an attempt to keep secrets from Newmarket Taxpayers, Newmarket Town Council, and Town Attorney John Ratigan engaged in unethical and illegal secret meetings where the Council discussed, deliberated, and took action to enter into a settlement agreement through email communications outside of any public or non-public meeting In violation of New Hampshire’s Right-to-Know Laws.

Right-to-Know Law requires (demands) that public bodies discuss, deliberate, and take action only in public or non-public meetings. The Law also demands a written record (meeting minutes) of all discussions, deliberations, and actions taken by public bodies. Newmarket and its attorney know and understand the but purposefully chose to violate the law under the guise of “non-meeting with an attorney.”

Right-to-Know allows a public body to seek legal advice (consult with an attorney) in a “non-meeting with legal counsel.” However, Deliberation about the matter on which advice sought may not occur during consultation with legal counsel however, the public body must reconvene and, unless a statutory exemption allowing deliberation in non-public session exists, conduct deliberation in a public session.

Moreover, to constitute consultation with counsel, there must be a contemporaneous exchange of words and ideas between the public body and its attorney (e.g., physically present, telephonically, video-conference, etc.). This was not the case with Newmarket. Members of the Newmarket Town Council engaged in individual email exchanges with legal counsel, where they discussed, deliberated, and took action (secret votes). All of this is against the Law.

Evidence that the Newmarket Town Council violated Right-to-Know comes directly from the Newmarket Town Manager Steve Fournier and legal counsel. In an affidavit, Town Manager Fournier states, “The settlement was not performed at a Town Council meeting. Instead, the Town Council received a legal consultation email that involved the Town’s legal counsel, and it was the manner of the Council’s response to that legal counsel’s related communication with the Board that led to the Town’s settlement approval.”

Newmarket’s Town Attorney also confirmed the Town Council did not hold any meetings regarding the settlement agreement, stating, “...the settlement decision of the Town Council was not conducted at a Town Council meeting, but it was the product of the Town Council email responses to the Town legal counsel’s email inquiry.

Newmarket also claims, “Email communications that involved the Town Council and the Town’s Attorney were subject to the attorney-client privilege and thus as none of such communications occurred at a Town Council public meeting, there are no Town Council meeting minutes that illustrate discussions, deliberations, and votives taken by the Town Council regarding the March 23, 2023 settlement agreement that the Petitioner entered into with the Town.

The legislature contemplated the need for private discussions among the board members when it enacted these ten exceptions to the open meetings mandate. The terms “discussed” in RSA 91–A:3, 11(c) and “consideration” in RSA 91–A:3, II(d)-(j) stand in marked contrast to the narrower phrase “consultation with legal counsel” in RSA 91–A:2, I(b). Whereas the former provisions allow government bodies to consider and discuss the enumerated matters, the latter provision permits a far narrower category—consultation with legal counsel.

In this case, the Board met in a private session not only to read the memorandum prepared at the direction of the attorney but also to “discuss” and “consider” the memorandum without counsel present. In the absence of an applicable exception, the clear legislative mandate of the Right–to–Know Law requires that they do so in the open. See District Atty. v. Bd. of Selectmen, 481 N.E.2d at 1131.

NH Right-to-Know Law is specific. A public body may not (a) move into non-meeting merely to discuss the contents of legal documents or advice previously provided by counsel or (b) close a meeting whenever its discussion turns to advice received from its attorney. Further, the law requires minutes of all discussions, deliberations, and actions taken by public bodies; This did not happen.

By law, all agreements to settle lawsuits by public bodies in NH must be filed and available for inspection with Town and City Clerks. The question logically arises: how many lawsuits have been settled by NH public bodies (School Boards, City and Town Councils, outside of public meetings? And for which there is no public record available for public inspection?

Jeffrey Thomas Clay, M.Ed.