NASHUA – A review of six months of emails shows that the Nashua Board of Education violated the state’s Right to Know Law during a series of emails in which they discussed how the results of the school district’s workplace climate survey should be made public, but they otherwise followed the state law governing public meetings.

Five board members commented on the climate survey in the series of emails written between June 12 and 15, a review of the school board’s emails obtained through a Right-to-Know request showed.

Because the five formed a majority of the board’s nine elected members, they constituted a quorum and essentially were conducting a public meeting – albeit electronically – outside the public’s eye, according to one lawyer.

"In my opinion, that practice – if it consists of a majority of the decision-making body – shouldn’t be allowed, and their attorney should advise them of that," said attorney Daniel Mullen, who served as associate attorney general under former New Hampshire Attorneys General Jeffrey Howard, Philip McLaughlin and Kelly Ayotte.

Mullen’s responsibilities during that time included updating the attorney general’s memo on the Right to Know Law (RSA 91:A).

Moreover, while only five members "spoke" during the email chain, all nine members were copied on at least two of the emails. That essentially is the equivalent of a meeting of the full board.

"If I were advising them, I would advise them not to do that," added Mullen, now an attorney with Ransmeier & Spellman in Concord, which occasionally counsels towns on the Right to Know Law.

"The discussion should be done in public. That is the whole
purpose of the Right to Know Law. If they are doing it by email, they technically are not in public," he said.

The five members who participated in the
workplace-climate survey email discussion were: board President Sandra Ziehm, Howard Coffman, Robert Hallowell, Doris Hohensee and Elizabeth Van Twuyver.

"What’s the consequence of this?" Mullen asked. "They didn’t make any vote. But they are essentially conducting business. I think the consequence is to tell them to stop that."

Other email correspondence involved fewer than five members who either directly commented or were copied on the emails. That does not violate the Right to Know Law because it did not involve a majority – or quorum – of the board, which elevates the discussion to a public meeting, Mullen said.

The Right to Know Law requires that the public have access to governmental meetings and records and details the requirements that public bodies must follow to ensure meetings are public, they are properly posted and minutes of actions taken during them are made available to the public.

Mullen said the issue of local officials communicating through email is not unusual, especially in a small state like New Hampshire, where most communities are run by volunteer boards.

"This issue comes up a lot with three-member boards where two members talk by email about town business. They shouldn’t do that because, technically, they are conducting town business outside a meeting," Mullen said.

"I recognize in today’s society with all the electronic media out there, it’s hard for people not to do this … I understand why they do it. But they should be told that it is a practice that they shouldn’t do," he said.

Ziehm and Coffman did not respond to messages seeking comment on the practice by presstime, but Board of Education member George Farrington – a former board president – said all members have to be mindful of the Right to Know Law as it applies to email correspondence. "We all have to be careful about it. It’s easy to forget, and you get caught in the moment of responding to emails … but you have to consider the content," Farrington said in a phone interview Tuesday.

While there is no formal training of board members about the Right to Know Law, Farrington said new members receive orientation packets, including information on the law.

"New members get inundated with information, and people need to be reminded from time to time," he said.

Farrington said member Robert Hallowell is good about reminding his peers when content begins to slide into public meeting territory.

"Typically, when I send an email or forward an article, I often put ‘I don’t want to start a discussion,’ and that goes a long way of reminding people," Hallowell said Tuesday. "It’s easy to get in the habit of responding to email chains."

Kathryn Marchocki can be reached at 594-6589, kmarchocki@nashuatelegraph.com or @Tele-graph_KMar. Tina Forbes can be reached at 594-6402, tforbes@nashuatelegraph.com or @Telegraph_ TinaF.

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