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Tuesday, March 13, 2012

Hollis keeps nonpublic meeting minutes out of public view

Hollis selectmen met in nonpublic session 41 times in 2011 – often twice in a single meeting – and the vast majority of those closed-door discussions are unlikely to ever see the light of day.

The 41 sessions was by far the most among three local public bodies surveyed by The Telegraph in an effort to gauge the public’s access to minutes and decisions reached during closed-door meetings last year.

The Telegraph requested access to minutes of nonpublic meetings held by Hollis selectmen, the Merrimack School Board and the Hudson Board of Selectmen in 2011.

Hollis was unique among the three boards in that it sealed all of its nonpublic minutes. Town officials refused to go back to previous meetings and review whether the minutes could be unsealed in response to the request.

Hudson selectmen met in nonpublic session 25 times in 2011, and made copies of the minutes of those meetings available except for a series of three sessions in January and February, which were kept sealed.

Merrimack School Board met 13 times in nonpublic session and made all of the minutes available at the paper’s request.

The minutes from Hudson and Merrimack include when the meeting began and who was there, what subjects were talked about – land purchases, hiring or disciplining employees in most cases – and in some cases votes the boards took during the session.

The Merrimack School Board spent roughly 91⁄2 hours meeting behind closed doors in 2011, according to minutes.

Hollis officials not only refused to release any minutes but took issue with The Telegraph’s request to review the sealed minutes and evaluate whether, with the passage of time, they could now be released.

“The Town is not obliged by the right to know law to conduct research, retrospectively, to justify, because of your request, the propriety (or lack thereof) of the board’s decision to seal the particular minutes and decline to honor your request,” Town Administrator Troy Brown wrote in his response to The Telegraph.

The board only goes into nonpublic session for reasons allowed under state law, including sessions in which the board discusses issues that could affect an employee’s reputation, Brown said.

“It’s very difficult to unseal those types of minutes,” he said. “It remains sealed until such time as it’s unsealed.”

Selectmen’s Chairman David Petry did not return phone calls seeking comment.

Part of the reason there were 41 nonpublic sessions last year was the conclusion of a three-year negotiating process between the town and the union that represents Hollis’ police, fire and communication employees, Selectman Mark LeDoux said.

“Quite frankly, we have a lot of that stuff going on,” he said.

The town and union have agreed to a contract, which goes to voters for approval during Town Meeting on Wednesday night.

LeDoux pointed out that the results of many nonpublic sessions, like the contract negotiations, become public eventually even if the behind-closed-doors conversations don’t.

He conceded that it may be a good idea to have the board review sealed nonpublic minutes to determine what can be released and said he would bring it up at a public meeting soon.

Balancing privacy and the public’s right to know

The state’s Right-to-Know Law, RSA 91-A, allows for public bodies to go into nonpublic session for several reasons, including the hiring, dismissal, promotion or compensation of a public employee, consideration of pending litigation or consideration of land acquisition.

The law is clear, however, that it is up to boards to decide when nonpublic sessions are warranted. There is no mandate to discuss issues privately, only that the option exists under the specific circumstances outlined in the law.

Discussion behind closed doors must pertain only to the reason stated for the nonpublic session.

Hudson Selectmen’s Chairman and state Rep. Shawn Jasper said he tries to keep the board in public session as much as possible. Most often the board talks behind closed doors about personnel issues, which wouldn’t be fair to discuss in public.

“We try to do it only when we really have to,” Jasper said. “I prefer not to do anything that we don’t have to in nonpublic.”

When hiring employees, nonpublic is preferred because the board is discussing the strengths and weaknesses of three or more candidates. The vote to make a final hire is made during a public session.

Many of the nonpublic minutes show that the board reached a consensus to hire a certain person for a position, but it didn’t take an actual vote in nonpublic session.

Jasper admitted some might happen in nonpublic session just because some of the meetings run past midnight and he forgets to call a vote to leave nonpublic.

Topics discussed in private by the Hudson board last year included granting or denying tax abatement requests, a lawsuit between the town and New England Hydro-Transmission Corp., and firing an employee in the town Finance Department.

Jody Vaillancourt, chairwoman of the Merrimack School Board, said her board takes a similar tack, going into nonpublic session only when the law demands it.

“It’s based on law and privacy,” she said.

Among the topics the Merrimack School Board discussed in private last year was paying out accrued vacation time and whether the district should hire a retired administrator as a part-time employee.

Vaillancourt said both cases involved specific employees whose personal lives needed to be discussed relative to the nonpublic motions.

The Merrimack board most often went into nonpublic session to discuss requests from parents for the district to waive tuition and accept their child in the district after the family moved out of Merrimack.

In those cases, the minutes include only the parents’ first names and last initial and the student’s first name.

State law unclear on unsealing minutes

Brown said that while the meetings of the selectmen are in private, the fact that they are happening is not a secret. All nonpublic sessions are listed on agendas, so the public is aware there is an issue that needs to be discussed privately, he said.

“We make every effort that we can to put notice on a public meeting agenda,” Brown said. “The meeting’s very public.”

Brown said there is no consistent way to get a record of the subjects the town’s selectmen discussed behind closed doors last year.

There is also no internal mechanism the board uses to occasionally review nonpublic minutes to decide whether they should remain sealed.

The state’s Right-to-Know Law allows for the minutes of nonpublic sessions to be sealed with a two-thirds vote “if it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective.”

However, the law does not require boards to revisit sealed minuted and open them if the issue has been resolved.

It’s possible to ask the selectmen to review a particular set of nonpublic minutes and evaluate whether they can be released, but the board may decide not to make such a review, Brown said.

“Someone would need to be very specific the reason why, the information they were looking for,” he said. “We would always accept those requests but we might not always honor it. We may not conduct the research because we’re not required by state law to conduct the research.”

In an email denying The Telegraph’s Right-to-Know request, Brown also referenced the portion of the state Right-to-Know Law that exempts government agencies from having to “compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency.”

Joseph G. Cote can be reached at 594-6415 or jcote@nashuatelegraph.com. Also follow Cote on Twitter (@Telegraph_JoeC).