To Permit Removal Under Oath of Office the Divulged Information Must be Defamatory; Notice of a Nonpublic Session Based on Harm to Reputation Need Not be Provided to the Person Whose Reputation Could be Adversely Affected.

Tejasinha Sivalingam v. Frances Newton
New Hampshire Supreme Court Case No. 2020-0216, 2020-0352
Tuesday, October 5, 2021

Plaintiff, an aggrieved former select board member sued a sitting select board member claiming his reputation was injured through an improper disclosure of confidential information from a nonpublic session.  Plaintiff sued to have the select board member removed from office under the oath of office statute, RSA 42:1-a.  Plaintiff was also aggrieved he was not notified of a nonpublic session held pursuant to RSA 91-A:3, II (c) given that it was his reputation that would be harmed. 

The Supreme Court ruled that to support a claim for removal from office under RSA 42:1-a it was necessary to demonstrate that (1) the Selectwomen divulged information to the public which she learned by virtue of her official positions or in the course of her official duties; (2) the Board properly voted to withhold that information from the public by a vote of 2/3, as required by RSA 91-A:3, III ;and (3) divulgence of such information would adversely affect the reputation of the plaintiff.  Further, the divulged information must be harmful or unfavorable to a person’s reputation to be judged using the defamation standard.  Did the information tend to lower the plaintiff in the esteem of any substantial and respectable group, even though it may be a quite a small minority?  The Court concluded that he Oath of Office statute had not been violated since  the disclosure of plaintiff’s own words, and town counsel’s response to his demands, did not adversely affect his reputation.   

Even though the select board had voted to withhold information from public inspection under RSA 91-A:3, III because it believed that the information would likely affect adversely a person’s reputation, this has no bearing on whether the information disclosed was capable, as a matter of law, of adversely affecting a person’s reputation under RSA 42:1-a, II(a).  “Thus, public bodies should continue to vote to withhold information under RSA 91-A:3, III when warranted.”

The Court also rejected plaintiff’s argument that he was entitled to some form of notice that the select board intended to discuss matters which it believed would likely adversely affect his reputation, so that he could request an open meeting.  Relying on the language of the statute, the Court made very clear that RSA 91-A:3, II (c) does not require that a public body provide notice of its intent to enter nonpublic session to discuss matters which may adversely affect a specific person’s reputation to afford the individual an opportunity to request an open meeting.


Additional Information: 

Practice Pointer:  Even if a public body votes to seal minutes of a nonpublic session based on harm to reputation this does not establish, as a matter of law, that the withheld information would harm a person’s reputation.  Notice of a nonpublic session based on harm to reputation need not be provided to the person whose reputation could be adversely affected.