New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Right to Know Law: Vacancy in Elected Position May Be Filled Only During Public Session of the Appointing Authority, and Documents Submitted by Applicants Must Be Disclosed

Douglas Lambert v. Belknap County Convention; Thomas A. Tardif v. Stephen H. Nedeau, Chairperson Belknap County Convention
Nos. 2007-566, 2007-685, 6/13/2008

A vacancy in the office of Belknap County Sheriff occurred upon the retirement of the person elected to the office. Pursuant to statute, this vacancy is filled by vote of the Belknap County Convention. The Convention received seven written applications for the position. The Convention then entered a nonpublic session and determined that it would subsequently interview the seven candidates. At a later meeting, a second nonpublic session was held, and all candidates were interviewed. The members selected two finalists. Subsequently these two persons were interviewed in a public session. The members then proceeded to take a vote by means of a secret ballot and selected a person to fill the vacancy. Before the person selected could take office, the petitioners challenged the procedure used under the Right to Know Law, RSA 91-A, and asked the court to invalidate the selection of the new sheriff. At trial, the court agreed that the Convention had violated the Right to Know Law by conducting a secret ballot vote to make their selection, but declined to invalidate the selection of the new sheriff. The Supreme Court reversed the trial court, invalidated the action taken, and remanded the matter to the trial court and the Convention to conduct the selection procedure openly and in compliance with the Right to Know Law.

The opinion clarifies several issues under this important statute. In the absence of specific statutory authorization, public bodies may not take votes on pending issues by means of a secret ballot during an open session. Since the Convention had taken its action following a secret ballot, that, alone justified invalidation of the action under the statute. The Court noted that the public had a right to know how each member of the Convention voted on the issue in order to hold that member accountable as a legislator, but this right was frustrated by the secret nature of the ballot.

The Convention had argued that its nonpublic sessions were appropriate, as they related to the hiring of a public employee. The Supreme Court rejected this argument, noting that elected officials are not hired, they are appointed or elected. The appointment process to an elected position is not equivalent to “hiring.” Thus, all appointments to fill vacancies in elected or appointed public positions must hereafter be conducted in public sessions of the appointing authorities.

Finally, the Convention had refused to disclose the names and application documents of all of the seven candidates who sought appointment to the vacant position. Only the names of the two finalists were disclosed, and none of the application documents were disclosed. The Convention argued that the applications contained personal information regarding the applicants, and that disclosure of all of the names would discourage persons from applying for such vacant positions in the future.

The Court determined that all of the names should be disclosed, reasoning that an application to fill a vacant elected position was the same as filing to run for public office, which of necessity would have disclosed the name and address of the person and their desire to fill the vacant position.

As to the documents filed with these applications, the petitioners argued for a blanket rule that would have required disclosure of all of the information, while the Convention argued for a blanket rule which would have protected all of the documentation from disclosure. The Supreme Court rejected both such arguments, and instead remanded to the trial court for implementation of the analysis previously announced in Lamy v. Public Utilities Commission, 152 N.H. 106 (2005). The three-step task for the trial court is to evaluate the privacy interest at stake that would be invaded by the disclosure, then assess the public interest in the disclosure, and finally balance the public interest in disclosure against the government’s and individual’s interest in non-disclosure. The Court determined that application for an elective office means that an individual has a minimal privacy interest that would be invaded by disclosure of the application, and that the public interest in the matter is high. Finally, because the application documents were not in the record, the Court noted that it was possible that sensitive personal information was contained on them that individuals would have a right to keep private. Accordingly, the trial court on remand was to determine whether such sensitive information was present, which could be redacted prior to disclosure of the remaining information.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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