Since issues with non-public meetings have come up on Friends of Education at Timberlane, as well as in the comment section of this blog, I would like to share my proposed solution for non-public meeting abuse. This essay was written last year in October and is not in response to anything recent. It is not in any way an implied criticism of the selectmen of Sandown and Danville nor is it intended to suggest that they have abused the Right to Know law with respect to non-public sessions.
Secrecy is to politics what vinyl siding is to termites which is why New Hampshire’s Constitution states “…the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” Nevertheless, some government business does need to be done out of the public eye for everyone’s best interests. How can we balance the public’s right to access with government’s need for secrecy?
New Hampshire has addressed this question in its Right to Know law which sets out the legally permissible reasons for public bodies to conduct non-public meetings (specifically RSA 91-A:3). I believe this law is badly in need of revision because it is widely violated with impunity.
In my short seven years of civic participation, I have found that local public bodies go into non-public more than they strictly need to, their discussion often wanders off allowable non-public topics, and sometimes the very reason for the non-public session does not fall under the law’s allowable non-public topics. Citizens are helpless to stop these abuses because they are by their nature secret and when they are exposed, the only recourse is a private suit against a public body.
Before I share my simple solution, let me give you a few examples of non-public meeting abuse from my own experience. Earlier this year, the Timberlane School Board hired the superintendent’s wife as a consultant. Contract discussion was done in non-public citing 91:A:3(a) which relates to the “…dismissal, promotion, or compensation of any public employee.” A consultant is not rightly considered a public employee. (The consultant’s contract was not made public. I obtained it via a Right to Know information request just after being elected to the school board.)
In 2013, the Timberlane School Board cited 91-A:3(i), to discuss mold in portable classrooms. This RSA allows non-public consideration of matters relating to emergency functions intended to thwart widespread damage or injury. Mold in portable classrooms or anywhere in school buildings may be a health concern, but it is hardly a security issue. The public had every right to know the condition of the portables.
Please don’t think that the Timberlane School District is the only one pushing the boundaries of non-public meetings. I could continue with examples involving other subsections of 91-A:3 from other public bodies. Some examples would be outright violations of the law, while others legally apply the provision to situations I believe are much better dealt with in public, such as performance reviews of superintendents, town managers, and other senior staff.
The Right to Know law does require documentation of non-public meetings by minutes. This is hardly enough because minutes can be sealed and kept from public view for decades. They can also be vacuous. My school district’s non-public minutes, as an example, contain one or two sentences about the discussion topic, as vaguely worded as possible, and nothing else concerning the discussion. Whether the non-public session went for five minutes or an hour and a half, the minutes are the same and absent details of discussion. Add to this the widespread misconception that everything said in non-public is absolutely confidential, and you have a perfect information blackout to the public even if the minutes aren’t sealed.
Any solution must:
- Create a disincentive to enter into non-public discussion so only those that are absolutely necessary and legal will be conducted;
- Shorten the length of non-public discussion to prevent wandering;
- Permit the public to see the legitimacy of every minute and topic in non-public discussion;
- Prevent unnecessary sealing of minutes and unreasonably long sealing periods which now are arbitrarily imposed without accountability;
- Free members to reveal abuses that take place within non-public meetings.
My proposal: require a verbatim transcript of all non-public meetings called under those subsections of the law frequently abused (viz; a,b,c,d, e and I). Transcripts may be redacted for reputation and privacy but the redactions (not deleted) must remain available for review by a judge. Any failure to completely transcribe or improperly redact will absolve all participants of their duty of confidentiality on the specific matter involved. Minutes may be sealed but the permitted length of time they may be sealed will be related to strict necessity, not arbitrary decision.
Such a simple requirement is a big disincentive and will quickly put an end to illegal secrecy. Elected officials are going to fling themselves against the crowbar as we try to lift off the siding. They will say this will impose costs. They will call it an unfunded mandate.
In fact, the costs of my proposal are almost certainly much smaller than lawsuits municipalities might fight and lose against citizens who pursue their right to know as a result of non-public session abuses. Not only that but towns and school districts can manage their costs by being much more circumspect about the length and frequency of non-public meetings.
As for being an unfunded mandate, the cost is entirely controllable and in many cases will not add to costs at all. School districts employ full-time people for whom minutes are just one of their responsibilities. The same can be said for many municipalities and towns. For those towns and commissions that pay a secretary by the hour, the solution would be to keep non-public sessions under ten minutes and everybody wins.
Donna Green is a Sandown representative on the Timberlane School Board and on the board of SAU 55. She is also a member of Right to Know NH, a group working to strengthen the Right to Know law. Her opinions are her own. TimberlaneandSandown.wordpress.com
timberlaneandsandown 
Sounds good on first read!