On Friday, August 11, 2017, I was in a small room with three lawyers, being recorded with a piece of New Hampshire antiquity, a cassette tape recorder.
The room was in the Walker Building at the state government complex on South Fruit Street in Concord. Room 200 held a few tables, pushed together to make a conference table, with a modest number of chairs around it. A few microphones were on the table and nothing else. Everything that transpired is public record.
Seated at the head of the table was the hearing officer, Attorney Peter Foley. Across from me sat James O’Shaughnessy, SAU 55’s attorney from Drummond Woodsum. By his side was Geoffrey Dowd, SAU 55’s new Business Administrator and an attorney by training.
All parties were convivial and relaxed.
The purpose of the pre-hearing conference was to “facilitate the proceedings of the hearing by discussing and clarifying the issues on appeal, discussing the possibility of settlement, stipulating to facts not in dispute, discussing the number of witnesses, and making discovery requests,” according to the pre-hearing notice sent to me on August 3, 2017.
I had prepared a list of facts not in dispute, a list of evidence to be requested and a list of witnesses, depending on the agreed upon facts. I had also considerably fleshed out my complaint. None of that work was destined to be presented that day.
Without any discussion of merits, Mr. O’Shaughnessy immediately argued to dismiss the case on three procedural grounds:
“Ripeness” was a new term to me but its meaning was evident. O’Shaughnessy argued that the administrative rules require SAU 55’s board to first hold a hearing on the issue before it can be escalated to the Board of Education. Since SAU 55’s board had not decided NOT to hold a public hearing, the issue was not yet ripe for an administrative hearing by the hearing officer, so he argued.
“Standing” is a perennial issue for those wishing to see the laws of this state enforced against a public body. O’Shaughnessy argued I didn’t have specific harm and therefore had no standing to pursue the complaint.
“Jurisdiction” is a more complicated issued that O’Shaughnessy mentioned without details. He referenced a court case concerning a related RSA where the ruling indicated the Board of Education had no jurisdiction over the matter.
The hearing officer said he would make no ruling on a motion not submitted in writing so that I could have an opportunity to respond in writing.
We took a while discussing whether a motion to dismiss should be submitted before or after the SAU’s board’s next regularly scheduled meeting on October 4, 2017. A written motion to dismiss, if granted before the next meeting, would likely just find us all back there again when I resubmitted my complaint should SAU 55’s board not deal with my complaint to my satisfaction on October 4. Then, you see, the issue would be as ripe as a peach in August.
The hearing officer set the deadline for a motion to dismiss (before the Oct 4, SAU meeting), for August 18. My deadline to respond was set for August 25.
Mr. O’Shaughnessy said his client had instructed him to file a motion to dismiss and he would need to confer with his client to determine the date of his submission.
In a particularly interesting development, the Timberlane board has been told by an unofficial source that our liability insurance carrier, PRIMEX, will be denying claims from SAU 55 for the costs of this administrative proceeding.
I take it as quite encouraging that the SAU’s lawyer did not want to address my complaint on the basis of merit and must resort to procedural wrangling to defend his client.
Naturally I’ll keep you posted when I receive the motion to dismiss.