by David Saad, Right to Know, NH
SB 555, which would have established an Ombudsman and Right to Know Appeals Commission was recently voted Inexpedient To Legislate by the House last Thursday. During the House session, Rep. Lynne Ober of Hudson made a number of comments which were factually incorrect and I feel compelled to provide a rebuttal to several of Rep. Ober’s remarks.
I was one of the 13 members on the Commission which met for several months and made the recommendation for the Ombudsman. I also was one of the members who drafted the Commission’s findings report and assisted in the drafting of SB 555.
During the House session, Rep. Ober said that the Commission did not look at any other options besides the Ombudsman. She said “none that were in the report”. Apparently Rep. Ober did not read the report. Had she read the report, she would have found on Page 4 a section titled “Consideration of Alternatives” in which it outlines an analysis of what all 50 states have in place to address right to know grievances. The Report states that 17 states including NH rely on the courts, 19 states rely on the Attorney General office, 9 states have an Ombudsman, and 5 states have an independent Compliance Board. The report goes on to say that the Commission did not believe the Attorney General’s Office would be a viable alternate option due to potential conflicts of interest. Please read the Commission report for more details. For an in depth discussion, read all the Commission meeting minutes which reviews all the options discussed, including the independent Compliance Board.
During the House session, Rep. Ober suggests that the Commission did not consider using mediators who are in the District Court and assigned to Small Claims Court. She asserts that mediators know the right to know law and could work on mediation because these are basically small claims. As I stated above, the Commission did look at a variety of alternatives including the use of mediators and arbitration. Small Claims Court deals with disputes valued at less than $10,000. Right to know grievances deal with the lack of access to governmental meetings and/or governmental records. While I contend that the value of an open and transparent government is priceless, Rep. Ober failed to explain how Small Claims Court rules and guidelines would work for determining the value assigned to a right to know grievance and how she was sure it would always amount to less than $10,000. Using Rep. Ober’s logic, I would ask her why we have a Board of Tax and Land Appeals since I’m sure that Board along with several others could also be replaced by using the mediators in Small Claims Court. After all, aren’t property tax disputes basically small claims?
During the House session, Rep. Ober said that the Appeals commission will hire the attorney. Apparently, Rep. Ober was working off an obsolete version of the bill, since the bill before the House clearly states that the Ombudsman ‘shall be appointed by the governor and council’. It appears that she didn’t read the amended version of the bill which was before the House for a vote.
During the House session, Rep. Ober asked, “Do you know an attorney who will work for $48,000 per year?” The bill does not state whether the position is a full time, part time, or contractual position. Yet, Rep. Ober, through her remarks, implies that it will be a full time employee of the state, subject to full benefits and a union contract. Nothing in SB 555 requires the Ombudsman to be a full time position or even an employee of the state, yet Rep. Ober criticized the bill based on that invalid assumption.
During the House session, Rep. Ober said the bill does not address the need for office space and there is no provision for a telephone or desk. Rep. Ober didn’t read the part of the Fiscal Note attached to the Bill which states that the Department of State would provide administrative and clerical support as needed and that the associated costs would be absorbed in the department’s existing budget.
Rep. Ober seems to have misread a number of details related to this bill and then based on that misinformation proceeded to misinform the full House before their vote.
The fiscal note on SB 555 showed minimal savings because a comprehensive analysis of costs was not performed. A financial analysis would have included:
Saving related to legal costs incurred by all public bodies and agencies to respond to Right to Know complaints and defend against Right to Know lawsuits
Legal costs incurred by all citizens who fight for their right to an open and transparent government as provided by Part 1 Article 8 of the Constitution and the RSA 91-A.
The greatest cost savings will be derived from the avoidance of legal costs by public bodies and the citizens. These savings were pointed out in a letter I sent to the House Finance Committee prior to their vote.
Having the fiscal note only focus on the Court related costs for the actual court cases each year is the same as staring at the iceberg and not acknowledging that what lies below the surface of the water is many times larger than what one sees. There are many citizens harmed each year by right to know violations who never see their day in court and never get justice. While hiring an ombudsman is an added expense, there will be considerable savings to offset the costs to the taxpayers. By avoiding litigation, municipalities and state agencies will often be spared significant legal fees.
For example, in the Superior Court case of Porter v. Town of Sandwich, Porter was awarded over $200,000 in attorney fees and the town had to pay their own legal fees too. The Oyster River School District spent almost $60,000 in legal fees and lost their Right-to-Know lawsuit. Tuftonboro paid over $20,000 in legal fees and lost their Right-to-Know lawsuit. Deerfield has spent over $50,000 in legal fees. Recently several State Representatives were forced to file a lawsuit against the Coakley Landfill Group because that group failed to provide documents requested under the Right-to-Know Law.
Regardless of who wins the lawsuit, there are always significant legal fees which are passed on to the taxpayers. The House Finance Committee gave the reduction of these legal fees no consideration. Either way, taxpayers are going to pay for resolving Right to Know grievances. $48,000 for an Ombudsman now will yield more than $48,000 in avoided litigation costs later.
On paper, it appears that the Right to Law provides for open and transparent government, enforcement of this law falls squarely on the back of the individual citizen who is engaged, cares, and has the financial and emotional capital to take their government to court to enforce their right to know. Most citizens simply do not have the time or money to fight for themselves and their fellow citizens. Public officials know this and use this barrier to their advantage as they violate the rights of all citizens. For each Right to Know petition filed in court there are many more violations which are not pursued by citizens because they cannot afford to do so. And when a citizen does go to court, public officials use the deep pockets of taxpayer funding to fight against the very taxpayers who are paying the legal fees.
In New Hampshire, the deck is stacked against the citizen. That’s why New Hampshire is ranked 49th out of 50 states by the Center for Public Integrity in the Category of Public Access to Information.
SB 555 would have created a level playing field when an alleged right to know violation has occurred. With an ombudsman, citizen complaints would have been resolved out of court by an independent party. This alternate resolution process will allow for ALL citizens, regardless of their financial means, to enforce their right to know and save taxpayers money by reducing legal fees paid by public bodies.
Please contact your Legislator NOW and ask them to vote for reconsideration on SB 555.
For more information, contact David Saad, President of RTKNH