This case involved a select board’s termination of an elected road agent. The Dorchester Road Agent, George Conkey, was elected in 2012 for a two-year term. The select board terminated him under RSA 231:65, which allows a select board to remove a road agent who “intentionally or deliberately neglect[s] to comply with lawful instructions of the selectmen, or . . . intentionally or deliberately refuse[s] or neglect[s] to carry out the duties prescribed by law for highway agents after written request by the selectmen, . . . .” After he was terminated, Conkey made a Right-to-Know Law request for various documents. The board provided some of the requested documents and responded “Not Applicable” to the remaining requests.
On appeal to the New Hampshire Supreme Court, Conkey first argued that he was entitled to a pre-termination hearing. The Court disagreed because the plain language of RSA 231:65 did not require a pre-termination hearing, or even any hearing at all. However, the Court did discuss the fact that the statute’s requirement of a “for cause” termination would necessitate that the individual be given some sort of “mechanism of redress through which to obtain relief.” However, the select board provided in its termination letter that Conkey could appeal to the board; Conkey chose not to and, therefore, chose not to pursue his available avenue of appeal.
Second, Conkey argued that he should be allowed to go forward with his wrongful termination claim because, otherwise, he had no form of relief. In response, the Court first determined that Conkey, as an elected road agent, did not have the status of an at-will employee: he was not terminable at will, but instead was employed for a fixed term and could only be terminated for cause. The Court then said that even if an employee who is not at-will could bring a wrongful termination claim—a question the Court did not answer—Conkey’s claim failed because he did have another form of relief available: appeal to the select board, which he failed to pursue.
Finally, the Court determined that the select board’s responses to Conkey’s Right-to-Know request were proper. The select board clarified that its response of “Not Applicable” meant that the town did not possess the requested records. The affidavit and statement provided by the town at the court hearing established that no records were withheld; rather, some of the requested records did not exist.