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Thursday, March 1, 2012

Judge: Pennichuck salaries must remain private for now

NASHUA – The salaries of Pennichuck Corp. employees must remain private until a full hearing can be held to determine whether the information is public, a Hillsborough County Superior Court judge ruled Wednesday.

Judge Jacalyn Colburn granted the request of a union representing a majority of the company’s workers to place a temporary restraining order on the company from releasing the salaries. The temporary restraining order also prohibits The Telegraph from publishing the salaries, if the paper were to obtain them.

Colburn’s order, dated Feb. 28, essentially maintains the status quo.

Another judge, Diane Nicolosi, imposed the temporary order Feb. 2. A conference is scheduled for March 14 to set the date of the final hearing, which will determine whether the information is exempt from public disclosure, as defined by the state’s Right-to-Know Law.

A hearing on the temporary restraining order was held Feb. 14 in Hillsborough County Superior Court.

In her ruling, Colburn noted the case is “unique” because Pennichuck Water Works, and its parent company, Pennichuck Corp., “have operated as private corporations for years and there has not yet been a determination as to whether Pennichuck now qualifies as a governmental entity subject to disclosure requirements.”

In January, the city of Nashua 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.

Pennichuck Water Works supplies the drinking water for Nashua and some surrounding towns.

After the city acquired the company, The Telegraph sought to obtain and publish the salaries through the state’s Right-to-Know Law. The newspaper argued the company is now a public body subject to the law because it is owned by the city.

“Pennichuck has voluntarily made itself subject to the Right-to-Know Law,” Rick Gagliuso, the attorney representing The Telegraph, said at the Feb. 14 hearing. “They made themselves subject to it through their bylaws.”

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 argued.

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

The company was prepared to release the salaries to The Telegraph, until a suit was filed on behalf of Local 8938 of the United Steel Workers to prevent their release to the newspaper for publication.

Just because the company has a public purpose doesn’t make it an arm of the city, argued Vincent A. Wenners Jr., the attorney representing the Pennichuck workers union, Local 8938 of the United Steel Workers.

Wenners compared Pennichuck Water Works to other private companies contracted to provide city services.

Pennichuck Corp. and Pennichuck Water Works didn’t take a position on The Telegraph’s request for the salaries. The companies cited “the tension between their duty to the sole shareholder, the city of Nashua, and to the employees,” Colburn noted in her ruling.

In granting the union’s petition for the restraining order, Colburn said the temporary injunction maintains the status quo until the case could be heard on its merits. The judge could have lifted the temporary injunction if she had determined the union’s petition had no basis in the law.

Instead, Colburn agreed that union employees’ salaries would be “irretrievably disseminated” if the injunction was lifted.

Also, if the temporary injunction was lifted, and the union later prevailed at a full hearing on the merits of the issue, the victory would be “meaningless” because the salaries would have been made public by then, Colburn said.

The judge also found that The Telegraph didn’t articulate any harm it would suffer as a result of the temporary injunction.

“In fact, The Telegraph specifically objected to converting the (Feb. 14) temporary hearing to one on the merits, instead requesting additional time,” Colburn said in the ruling.

Patrick Meighan can be reached at 594-6518 or pmeighan@nashuatelegraph.com.