Derry Officials Hear Review of Right To Know Law

The Derry Town Charter and Council Rules got a grade of “A” from Christine Fillmore, an attorney with the New Hampshire Municipal Association.
Fillmore was in town Tuesday, Oct. 22, to give a workshop on RSA 91-A, the state’s Right To Know Law; ethics; and conflicts of interest. As part of her presentation she compared the state law with the town’s laws, noting that in nearly all cases, Derry’s rules are tougher and tighter. Almost two dozen people, most from town boards or on town staff, filed into the Council chambers to hear Fillmore. They included five Councilors, two Planning Board members, and nearly all of the Zoning Board of Adjustment.

Council chair Michael Fairbanks gave the welcome and introduced Fillmore, noting that, “We originally wanted to do this just for the Council, but then we thought, Why not open it to everybody?”
Fillmore said the presentation would be personalized, geared toward Derry and its charter and Council rules.
The so-called Right To Know Law comes from the New Hampshire Constitution, which says that government must be “open, accessible, accountable and responsible,” Fillmore said. The burden of proof is on the board, she added – “We assume a topic is going to be public until there’s a reason it shouldn’t be.”
Almost everyone, she said, will violate Right To Know without meaning to. When that happens, it’s best to apologize – publicly – and move on, she said.
Her advice to municipalities? “Don’t look for loopholes in Right To Know,” she said. It’s better to be too careful, according to Fillmore.
“You have to think about how it looks,” she advised. “It can be perfectly legal – and still look awful. Be sure you’re acting in good faith. The law is slanted toward the public.”
The Derry town charter has an extra set of rules on top of 91-A, and she lauded the town for that. “When there are two sets of rules, follow the strictest ones,” she said.
Public meetings by public bodies must be properly noticed and open to said public, Fillmore said. What’s a public body? “Pretty much everything in town that has an official function,” she said.
Even subcommittees are public bodies, she added, saying, “That catches people every now and then.”
What is a meeting? “It is the convening of a quorum of a majority of members,” Fillmore said, noting, “If a simple majority is together, Right To Know defines it as a meeting, even if no action is taken.”
Fairbanks asked, “If a group of Councilors go to a restaurant after the Council meeting, is that a ‘meeting’ under 91-a?” That has happened often in Derry.
Fillmore responded, “A chance encounter at a social event, where no decision is made, is not a meeting. If the point of going out for coffee is to talk about what happened at the meeting, it’s a meeting.” If Council members run in to each other at an event and discover they’re a quorum, the best thing to do is to stop immediately, Fillmore said.
It’s something people in her small-and medium-sized towns will often face, she added. “You all live in town, you will run in to each other,” she said, advising the best thing to do is to make sure official business doesn’t happen. If necessary, “Turn around and talk to other people.”
It’s just common sense, according to Fillmore.
E-mail should never be used for group back-and-forth communication, Fillmore said. “You cannot have a meeting by e-mail,” she said, noting that this leaves the public out. Issues may only be deliberated in properly-held meetings, which have been noticed and convened. Even nonpublic sessions have to be opened and closed in public, she said.
Sending packets of information for the meeting electronically is acceptable and more practical than stuffing a board member’s mailbox, Fillmore said. “A distribution is a one-way communication. The problem is when people respond – then it becomes an exchange,” she said.
And don’t ever, ever, hit “reply all.”
Zoning Board of Adjustment secretary Donald Burgess brought up the matter of minutes correction, when the board secretary sends around draft minutes for approval. Corrections should be kept by the recipient and addressed in the public meeting, Fillmore said. If one must, he or she can send their corrections to the staff person handling the minutes, and the staff member can bring them to the meeting for public correction. “It’s the ‘hub’ and ‘spoke’ idea, with the staff person being the hub and the members the spokes,” she explained.
Mark Flattes, vice-chair of the Energy and Environmental Advisory Committee, asked, “What if our chair sends us the agenda, and a member wants to add something or take it out? If we alter it and send it back, is that a meeting?”
It’s a gray area, Fillmore said. But the Derry Council has rules about how to handle an agenda, she said, adding, “Most other boards don’t.”
The Derry Council rules mandate that a meeting be posted within 48 hours of being held, which is stricter than the 24 hours required by 91-A. “You have a lot of safeguards in Derry,” Fillmore said.
In response to a question from Dennis Wiley of the Conservation Commission, she said it applies not just to the Council, but to “every multi-member body” in Derry.
In general, she said, “You need to have which board is meeting, the time, the day and place,” Fillmore said.
In response to a question by Acting Town Administrator Larry Budreau, Fillmore addressed taking action on items not on the original agenda. “You can take no action unless it’s an emergency and you take a vote,” she said. An emergency is anything affecting the “peace, health, safety or convenience” of the residents.
Fillmore also discussed allowing the public to speak in meetings. There is no requirement under 91-A that they be allowed unless it’s a public hearing, she said. She remembered one selectman in a northern town who complained that the board couldn’t get any work done because of all the people who wanted to talk during the meetings.
Fillmore remembered telling him, “You don’t have to let them talk. This is your meeting, to get things done.”
But when there is a public forum for people to speak, the First Amendment does apply, she said. “You can put reasonable limits on the time and number of speakers, and you can restrict profanity and physical threats,” she said. “But you can’t do what one school district did – every time someone said something negative, the board would say, ‘We don’t have time.’ They were taken to court over that.”
On ethics, Fillmore returned to the theme of how thing look. “Don’t do obviously wrong things,” she said. “You’re there to serve the public – appearances count for a lot.”
In a phone interview the next day, Councilor Mark Osborne said he thought the meeting was a success. It was good to see so many people out, especially because all the boards are volunteer, and he was also pleased to hear Fillmore’s good report on the town’s Charter and Council rules.
“We are people who want to get it right,” he said.

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