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  • Staff photo by Don Himsel

    Attorney Vincent Winners listens to attorney Rick Gagliuso during the hearing in Hillsborough County Superior Court in Nashua Tuesday, February 14, 2012.
  • Staff photo by Don Himsel

    Telegraph attorney Rick Gagluiso speaks during the hearing in Hillsborough County Superior Court in Nashua Tuesday, February 14, 2012.
  • Staff photo by Don Himsel

    Attorney Vincent Winners
  • Staff photo by Don Himsel

    Attorney Rick Gagliuso
  • Staff photo by Don Himsel

    Attorney Andrew Serell makes a point during the hearing in Hillsborough County Superior Court in Nashua Tuesday, February 14, 2012.
Wednesday, February 15, 2012

Telegraph argues for release of Pennichuck salaries in Superior Court

NASHUA – Pennichuck Corp., through its bylaws, has agreed the salaries of its employees are a matter of public record, an attorney for The Telegraph argued Tuesday.

“Pennichuck has voluntarily made itself subject to the Right-to-Know Law,” said Rick Gagliuso, the attorney representing The Telegraph. “They made themselves subject to it through their bylaws.”

An attorney representing employees of Pennichuck Water Works who want their salaries to remain private argued those bylaws shouldn’t apply to Pennichuck’s subsidiaries, which as private companies aren’t subject to open records law.

“We concede there is a public purpose to the company,” said Vincent A. Wenners Jr., the attorney representing the Pennichuck workers union.

However, just because the city holds its parent company’s stock doesn’t make Pennichuck Water Works an arm of the city and thus subject to the Right-to-Know Law, Wenners said.

Argument over whether the salaries of Pennichuck Corp. employees should be public was heard in Hillsborough County Superior Court on Tuesday. The Telegraph requested the salaries after the city’s acquisition of the company became official, but the release of the information was blocked by a temporary restraining order sought by the union, Local 8938 of the United Steel Workers.

During arguments Tuesday, Wenners compared Pennichuck Water Works to other private companies contracted to provide city services.

In January, the city acquired ownership of Pennichuck Corp. through purchasing all shares of the company’s stock. The deal, valued at more than $200 million, capped a decades-long effort by the city to acquire the utility that supplies its drinking water.

Hillsborough County Superior Court Judge Diane Nicolosi on Feb. 2 issued the order that prohibited the company from releasing the salaries and The Telegraph from publishing them if it was to obtain the information.

Judge Jacalyn Colburn presided over the hearing Tuesday because an attorney involved in the issue had a conflict with Nicolosi concerning another case.

After a roughly 40-minute session, Colburn didn’t issue a ruling but said another hearing will be scheduled soon.

In the meantime, The Telegraph remains blocked from publishing the salaries, even though the newspaper has not obtained the information.

In its bylaws, Pennichuck Corp. acknowledged its intent to operate openly and with transparency. Gagliuso said.

Records and salaries should be made available to the public because more than $200 million in public money was used to purchase Pennichuck stock and to assume the company’s debt, Gagliuso further argued.

“There is city of Nashua taxpayer money involved in this,” he said.

If lawmakers wanted salaries and records of for-profit companies providing municipal services to be public information, they would have made that a specific provision of the Right-to-Know Law, Wenners said.

He cited a provision of the law that states nonprofit companies are subject to the Right-to-Know, but doesn’t mention companies in general.

“If they wanted for-profit companies included, (lawmakers) would have said so,” Wenners said.

Following the logic in Wenners’ argument, what would prevent cities from “gobbling up” for-profit companies as a way to do an “end run” around the Right-to-Know Law, Colburn asked.

Cities wouldn’t have the means to acquire for-profit companies, as such companies frequently are contracted to do work for municipalities without being part of the municipalities, Wenners responded.

Gagliuso noted that the state Supreme Court has affirmed a ruling by the state Public Utilities Commission that it was in the public’s interest to acquire Pennichuck. Gagliuso also cited other court decisions that salaries of teachers and pensions of public employees are subject to Right to Know.

Attorney Andrew Serrell, representing Pennichuck Corp., said the company has taken no formal position on the outcome of the hearing.

However, Serrell argued that the court should consider only two points when deciding: whether Pennichuck Water Works is a public holding, and whether there is a protective privacy interest in withholding information about the workers’ salaries.

The corporation’s bylaws are irrelevant to the issue before the court, Serrell said.

Gagliuso said the temporary order shouldn’t have been imposed in the first place. Courts have held that orders of “prior restraint” should be imposed only in very limited, substantial circumstances, he said.

Publishing salaries doesn’t meet that criteria, Gagliuso said.

Patrick Meighan can be reached at 594-6518 or