Seacoast Online – New Hampshire examines penalties for meetings law violations
CONCORD — New Hampshire lawmakers are considering strengthening penalties against public agencies, officials and employees that violate the state’s Right-to-Know Law.
The state’s Right-to-Know Oversight Commission requested legislation to make it easier for citizens who sue to recoup attorney’s fees and costs. Under the bill, the court also could fine individuals whose violations are done in bad faith. The fines of between $250 and $1,000 would go into a fund to pay for remedial training.
Rep. James Garrity, oversight commission chairman, testified Tuesday at a hearing on the bill that it is an attempt to personalize punishment.
Existing law “doesn’t have enough teeth (to penalize) bad-acting public officials,” he said.
The bill would make it easier for the citizens to recover attorneys fees when they win a case against an official or employee who violates the law in bad faith. Witnesses said courts currently can order the official or employee to pay the citizen’s court costs, but the citizen may have trouble collecting. The bill would require the agency involved to pay and require the official or employee to repay the agency.
John Lassey, commission vice chairman, said that gives citizens a better remedy. Individuals tagged with hefty court costs may file bankruptcy to avoid paying, he said. The provision also encourages compliance with the law, he said.
Cordell Johnston of the New Hampshire Municipal Association didn’t oppose the bill, but submitted an amendment to eliminate the $250 minimum fine. His amendment would set a maximum fine at $1,000.
He also proposed requiring the courts to award attorney’s fees to the official or public body if a lawsuit is frivolous — which currently is at the court’s discretion. Johnston said it wasn’t fair to require courts to award costs to citizens if officials act in bad faith while not making the citizen pay costs to the officials in frivolous cases.
He also argued for a narrower definition of bad faith than is in existing case law.
Johnston gave the example of a secretary ordered by a selectman to violate the law who feared being fired for disobedience more than being sued for violating the Right-to-Know law in bad faith.
“I understand the ‘just following orders defense’ doesn’t seem very powerful,” said Johnston.
But he said the liability should rest with the boss, not the worker ordered to violate the law.
Harriet Cady of Deerfield objected to another provision that left it to the court’s discretion whether to invalidate actions taken by public bodies in violation of the law. She said it doesn’t do citizens any good to challenge the illegal actions if a court doesn’t automatically invalidate them.
She also suggested adding a provision that requires costs awarded to citizens include their personal expenses, such as lost pay, since some act as their own attorneys.
Ed Naile of the Coalition of New Hampshire Taxpayers said the proposed penalties don’t go far enough. Elected or appointed boards should face removal while employees should face fines, he said.
For details see: More Changes to 91-A Proposed (HB 425)