New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Superior Court rules that names of all applicants for interim school superintendent job must be disclosed to the public under Right to Know Law

Taylor v. Oyster River Cooperative School Board, Strafford County Superior Court
No. 219-2011-CV-00349,, 1/19/2012

The following summary is based on a decision of the Strafford County Superior Court. Please note that (a) superior court opinion is not binding on the New Hampshire Supreme Court and (b) at the time this summary went to print, it was still possible for these decisions to be appealed to the New Hampshire Supreme Court.

In the spring of 2011, the school board of the defendant school district found itself at odds with the superintendent. In a series of discussions between April and June, the entire board, as well as various groups of less than a quorum of the board, met on a number of occasions to research contractual issues, discuss these matters with attorneys, and eventually negotiate an agreement with the superintendent that ended their contractual relationship. A group of less than a quorum of board members met on various days to interview interim superintendent candidates, interview public relations firms, and execute the separation agreement with the superintendent. Later, in a series of non-public and public sessions, candidates were interviewed and an interim superintendent was selected.

The plaintiff sought records of communications, including emails, from the school board, which request was denied. Eventually he brought suit under RSA 91-A:7, alleging numerous violations of the Right to Know Law. Following a trial, the Superior Court determined that numerous violations had occurred and entered an order compelling the release of requested documents. It ordered the payment of the plaintiff’s fees and costs, and accepted the board’s public acknowledgement of error and willingness to reform its behavior, instead of entering an injunction to prohibit future violations.

The opinion is some 23 pages in length, and is instructive because it details conduct that is clearly prohibited by the statute. This includes entering a non-public session without observing the formalities of a motion and roll call vote while in public session; failing to record, prepare and properly seal or disclose minutes of the proceedings in some of these sessions; the creation of groups constituting less than a quorum of the board to conduct work without observing requirements for the posting of meetings or recording of minutes; failure to follow procedures when meeting with legal counsel; improper use of electronic mail for deliberations and expressions of viewpoints; and failure to properly release governmental records upon request.

One aspect of the decision is particularly noteworthy. The Court ordered the release of the names of all of the applicants for the position of interim superintendent. While the Supreme Court has previously held that applicants to fill a vacancy in an elected public office have no expectation of privacy as to their applications, it has never ruled upon whether all of the names of applicants for appointed positions or ordinary employment positions must be so disclosed. We will watch to see if the Supreme Court has an opportunity to address that issue.p>

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