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Free Speech Wins

By CNHT | May 5, 2016

ALTON — The man who was arrested for disorderly conduct last year at a selectmen’s meeting for what one selectman called “character assassination” has been awarded $42,500 in damages by a federal court judge.

Jeffrey T. Clay, 57, of 53 Mallard Drive, was arrested approximately 40 seconds into the allotted five-minute comment period on Feb. 3, 2015, after asking all of the board members to resign. He claimed they had taken “poor actions as selectmen,” made “poor decisions” and “continued violations of the citizens’ rights here in Alton.”

Read more…
Court awards $40,000 in damages in Alton free speech case

Topics: Litigation Updates, Town Government | Comments Off

A Word from Donna Green, Right-to-Know Supreme Court Victory

By CNHT | May 5, 2016

Right-to-Know Supreme Court Victory

Our state’s Right-to-Know Law became more robust on April 19. That’s when the New Hampshire Supreme Court issued a unanimous decision that public bodies must, if requested, provide documents in electronic format when they are maintained electronically.

For me, this was an enormous victory. As an elected member of the Timberlane Regional School Board, I have been trying to obtain the names, salaries and employment status of the school district’s 700 or so employees in a format suitable for detailed analysis.

My long journey to this victory began in December 2013. Then a member of the Timberlane Regional School Budget Committee, I asked for the number of staff being funded by the proposed 2014/15 budget. My request was ignored so I made my first ever Right-to-Know request.

SAU 55’s first and second response was that the information didn’t exist. My reply was one of incredulity. I threatened to go to the Attorney General’s office. Superintendent Metzler then provided the information in Jan. 2014. A few months later I was elected to the Timberlane Regional School Board.

As it happened, when Timberlane’s 2014/15 staffing report was filed with the Department of Education, there was a large disparity between the number of (full-time equivalent) staff given to me by the superintendent in January and that reported to the Department of Education. It seemed we budgeted for 35 positions that were not filled, but no explanation was ever provided for this discrepancy.

Then I learned that the Hampstead Budget Committee is given an electronic file of all positions and staffing costs in the Hampstead School District. This was a revelation because both Hampstead and Timberlane school districts are administered by SAU 55. So – the same administration using the same software gives Hampstead information that Timberlane didn’t even know existed.

Naturally, I then asked the Timberlane Regional School Board Chairman to provide the entire Timberlane School Board with the corresponding budget information that Hampstead receives concerning staffing. Timberlane’s Chairman at the time, Nancy Steenson, refused – saying it would be a waste of paper as no one on the Timberlane School Board has ever previously had use for such information. I ultimately responded with a Right-to-Know request for an electronic file.

No electronic version was forthcoming, but SAU 55 did make a paper printout available for inspection at their office by appointment and supervision by the Business Administrator. Keep in mind the documents were in the hundreds of pages. By policy, SAU 55 charges 50 cents a page for copies. I would have had to pay hundreds of dollars; furthermore, a stack of paper copies would leave me with documents that couldn’t be searched or reorganized for analysis.

With the assistance of Right to Know New Hampshire and others, I filed a pro se case in Superior Court on February 3, 2015: Donna Green v. SAU 55, the Timberlane Regional School Board, Earl F. Metzler, and Nancy Steenson. I argued that the Right-to-Know Law (RSA 91-A:4, V), , requires public bodies to produce electronic files when the documents requested exist electronically.

On March 9, 2015, Superior Court Judge David Anderson, although sympathetic to my case, ruled that public bodies have the choice to provide either paper or electronic format. I filed for reconsideration. It was denied.

My husband and I were aghast. If we let this ruling stand, it would be embraced by less than forthcoming public bodies beyond Timberlane. Thankfully, Richard J. Lehmann of Douglas, Leonard & Garvey took my appeal to the NH Supreme Court.

On Jan. 7, 2016, Attorney Lehmann argued that the law does not give discretion to public bodies but, in fact, requires them to provide electronic format when documents are maintained electronically. Three suspenseful months later, the Supreme Court determined that the law might be somewhat ambiguous; nevertheless, in light of the purpose of the Right-to-Know Law, which is to provide the utmost information to the public, “…the plaintiff is entitled to the requested documents in electronic format.”

Although this is a victory for the citizens of New Hampshire, it is a tremendous black eye to the Timberlane Regional School District which will go down in history as the public body that wasted many thousands of taxpayer dollars trying to thwart one of its own board members from getting budget information in a usable format.

Not to go down without a fight, though, SAU 55’s superintendent immediately issued a policy change: electronic files will be provided only on a thumb drive delivered in unopened original packaging. That’s right: an SAU which is a service organization to the citizens of our school district and its governing body, the Timberlane Regional School Board, will not email any Right-to-Know responses. Board members and citizens must go to the SAU office during their restrictive hours of 8:30 am to 4 pm, Mon. – Fri., drop off a thumb drive and then return to pick it up. Both SAU 55’s board and the Timberlane Regional School Board as a whole refused to take issue with this new policy

As one of the Supreme Court justices asked of Timberlane’s lawyer during the hearing, “Why not just give her the information?”

No law can legislate common courtesy. I dropped off my thumb drive ($6) to SAU 55 with a fresh Right-to-Know request to follow.

I’m the public face of a public battle, but behind me are many people. My husband, Arthur, has been more than half of all this with financial, factual and emotional support. Many others have helped, too, with the pro se brief, with publicizing the issue, and general encouragement. To Richard Lehmann, our steadfast advisor, goes our deepest gratitude and respect.

For more on the background of the staffing issue see
https://timberlaneandsandown.wordpress.com/2015/01/20/reported-staffing-numbers-dont-add-up/

Donna Green
Sandown representative to the Timberlane Regional School Board (2018)
Member of Right to Know NH
603-974-0758

Topics: Litigation Updates, Right to Know | Comments Off

Henniker Tree Farm Owner Prevails

By CNHT | May 2, 2016

This issue demonstrates the importance of keeping local control.

by Steve Forster,
Christmas Tree Farm, Henniker NH

Four costly years for me AND the taxpayer, wasted. A very expensive exercise in English composition!

This is a “property rights” issue. I wish it were as simple as “it’s your property and you can do what you like on it.” Well, that’s not exactly true. As we relinquish control to our elected/consented land use boards, hourly planning consultants and/or full-time planners, and lack of citizen’s involvement in the laws that are passed, the property owners end up in court fighting for the plain, ordinary and literal meaning of a statute.

To make matters worse and inequitable, property owners are up against land use boards, planners, and town attorneys, who have access to taxpayers money to take the time to scour law books and laws to make what is plain to be ambiguous, and sue us. That is where this has brought all of us today.

The diversification of my farm operation into agritourism was based on the 2007 RSA 21:34-a, which was adopted by the legislative body of my town, and embedded in our zoning ordinances. In 2012, I was given an illegal cease and desist, and forced into the ZBA by a planning consultant to apply for a variance, which was denied after many appeals.

The ZBA refused to recognize and accept the term “agritourism,” and the Selectboard, who shall administer our laws, stayed hermetical! This ZBA’s denials forced me to go as far as I did, or resigned to sell my property to land developers. It was going to one or the other. I chose my farm, and the blood, sweat, tears, and years it took to turn an uncultivated piece of property into the beautiful Christmas tree farm it is today.

For the whole State of NH, I spent thousands of dollars defending alone a law enacted by the N.H. Legislature. I believed it was the correct thing to do; and to protect my property rights, keeping within existing law. I did not agree with the Supreme Court ruling, except for the dissent ruling by Justice Hicks. The majority denied the plain language of RSA 21:34-a, suggesting that the legislature revisit the RSA to simply move the term “agritourism” from the body into the current title – “Farm, Agriculture, Farming.”

My case forced and directed NH lawmakers to attend to agritourism RSA housekeeping. Unfortunately, since July 2015, instead of “housekeeping” they rewrote the whole statute, which is still pending. This new farming/agriculture/agritourism RSA, which has been worked on by lawmakers since July 2015, now has language embedded that is ambiguous, is restrictive and controlling, and provides a path for more law suits.

With that in mind, concerned Henniker residents wanted to get the horse in front of the cart ahead of the state AND town, and crafted a citizen’s petition warrant article that did exactly what the Supreme Court asked of the legislators, but what was cleverly ignored by lawmakers. We titled our ordinance “farm, agriculture, farming, agritourism,” and went further by defining in detail what activities are considered agritourism, against the desires of our planning board. I wonder why?

We now follow that ordinance that was written and voted in by the People, and my site plan application passed. Not an elected/consented land use board member, not a lawyer, not a planner, not a municipality lobbyist, not a conservationist, not a single lawmaker in Concord had part in the writing any of it! Just “We The People!”

Topics: Property Rights | Comments Off

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