Tejasinha Sivalingam v. Frances Newton & a. ( 2021 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by email at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
Nos. 2020-0216
2020-0352
TEJASINHA SIVALINGAM
v.
FRANCES NEWTON & a.
Argued: February 11, 2021
Opinion Issued: October 5, 2021
The Law Offices of Martin & Hipple, PLLC, of Concord (Stephen T. Martin
on the brief and orally), for the plaintiff.
Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and
Anne E. Jenness on the brief and orally), for defendants Frances Newton and
Leigh Sharps.
Mitchell Municipal Group P.A., of Laconia (Laura Spector-Morgan on the
brief and orally), for defendant Town of Ashland Board of Selectmen.
DONOVAN, J. The plaintiff, Tejasinha Sivalingam, sued Frances Newton
and Leigh Sharps (Selectwomen) and the Town of Ashland Board of Selectmen
(Board), seeking the Selectwomen’s dismissal from and injunctive relief against
the Board. The plaintiff alleged that, after the Board discussed in nonpublic
session a complaint that he had submitted, information relating to that
complaint was wrongfully disclosed in public session. The Superior Court
(MacLeod, J.) granted the Selectwomen summary judgment, concluding that
they had not improperly disclosed any information, but denied their motions
for judgment on the pleadings and attorney’s fees. The court also denied the
Board’s motion to dismiss for failure to state a claim, determining that the
Board was required to notify the plaintiff of the nonpublic session. Relying
upon Superior Court Rule 46(c), the court then severed the adjudicated claim
against the Selectwomen from the plaintiff’s pending claim against the Board.
In these consolidated appeals, the plaintiff appeals the superior court’s grant of
summary judgment in favor of the Selectwomen; the Selectwomen cross-
appeal, arguing that the court erred by denying their motions for judgment on
the pleadings and attorney’s fees; and the Board, on an interlocutory basis
pursuant to Supreme Court Rule 8, appeals the denial of its motion to dismiss.
For the reasons that follow, we affirm the superior court’s decision denying the
Selectwomen attorney’s fees. However, we reverse its decisions denying the
Selectwomen’s motion for judgment on the pleadings and the Board’s motion to
dismiss.
I. Facts
The following facts are undisputed or supported by the record. The
plaintiff was a selectman on the Board from March 2017 until January 2018.
The Selectwomen served on the Board at all relevant times. On May 12, 2018,
the plaintiff submitted to the Board a “Citizen Inquiry” form, a method
developed by the Board to address public grievances, in which he complained
that, during his tenure on the Board, the Selectwomen treated him with
“derision” following an interview that he conducted with a candidate for the
Ashland zoning board. His complaint requested “a public apology on
television” from the Selectwomen and that the Board “vote to formally censure”
them.
On June 4, 2018, the Board unanimously voted to enter nonpublic
session to discuss matters which “would likely affect adversely the reputation
of any person” if discussed in public. See RSA 91-A:3, II(c) (2013). The
minutes of the nonpublic session reveal that the Board discussed “[h]ow to deal
with complaints from [the plaintiff and] others” and decided that, moving
forward, it would “not address personal attacks in public.” Determining that
the divulgence of the nonpublic session minutes and decisions reached in
nonpublic session would likely “[a]ffect adversely the reputation of any person
other than a” Board member, the Board unanimously voted to seal the minutes
of the nonpublic session.1 See RSA 91-A:3, III (Supp. 2020). After reentering
1 Based upon the record, it is unclear whether the Board’s vote to seal the minutes and decisions
reached in nonpublic session itself occurred in nonpublic session. We observe that RSA 91-A:3,
III requires that such a vote be “taken in public session.” Because neither party raised the issue,
2
public session, the town administrator read the plaintiff’s Citizen Inquiry form
and a portion of a response from the Town of Ashland’s legal counsel, and
Selectwoman Newton noted that the Board had decided to no longer address
criticisms of the Board in public.
On June 18, 2018, in public session, a majority of the Board agreed to
eliminate the Citizen Inquiry form. According to the plaintiff, between June 11,
2018 and July 3, 2018, he submitted another Citizen Inquiry form and various
Right-to-Know Law requests seeking information as to what transpired during
the nonpublic session at the June 4 meeting. See RSA ch. 91-A (2013 & Supp.
2020). On August 6, 2018, in response to the plaintiff’s requests, the Board
unanimously voted to unseal the minutes from the June 4 nonpublic session.
The plaintiff thereafter filed suit against the Selectwomen and the Board.
He sought the dismissal of the Selectwomen from the Board, arguing that they
violated their oaths of office by causing information to be divulged at the June
4 meeting that the Board had previously voted to withhold and that “adversely
affected [his] relationships with members of the community.” See RSA 42:1-a,
II(a) (2012). He also requested, in part, that the trial court enjoin the Board
from entering nonpublic session to discuss a person without providing notice of
its intent to do so. See RSA 91-A:3, II(c). After submitting a response, the
Selectwomen filed a motion for judgment on the pleadings, arguing that the
information disclosed during the June 4 public session was not harmful to the
plaintiff’s reputation. Before the trial court ruled on that motion, the
Selectwomen filed a motion for summary judgment. Attached to the motion for
summary judgment were affidavits from the Selectwomen and Kathleen
DeWolfe, who was a selectwoman in June 2018, averring that at the June 4
meeting they believed that the plaintiff’s Citizen Inquiry form, a portion of the
town counsel’s response, and the Board’s decision to change the Citizen
Inquiry process could be disclosed in public session. See RSA 91-A:3, III.
The trial court denied the Selectwomen’s motion for judgment on the
pleadings, but granted summary judgment in their favor, reasoning that they
did not improperly divulge any information and therefore did not violate their
oaths of office. The Selectwomen filed a motion for attorney’s fees, which the
trial court denied. Separately, the Board filed a motion to dismiss for failure to
state a claim, which the trial court denied. These appeals followed.
II. Discussion
A. The Selectwomen’s Motion for Judgment on the Pleadings
We begin by addressing the Selectwomen’s argument that the trial court
erred by denying their motion for judgment on the pleadings. In general, a
we do not address it.
3
motion seeking judgment based solely on the pleadings is in the nature of a
motion to dismiss for failure to state a claim upon which relief may be granted.
LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 93 (2007). In reviewing
a motion to dismiss for failure to state a claim, we assume the truth of the facts
alleged by the plaintiff and construe all reasonable inferences in the light most
favorable to the plaintiff. Id. We need not, however, assume the truth of
statements in the plaintiff’s pleadings that are conclusions of law. Clark v.
N.H. Dep’t of Emp’t Sec., 171 N.H. 639, 645 (2019). We then engage in a
threshold inquiry that tests the facts in the complaint against the applicable
law. Id. In conducting this inquiry, we may consider documents attached to
the plaintiff’s pleadings, documents the authenticity of which are not disputed
by the parties, official public records, or documents sufficiently referred to in
the complaint. Automated Transactions v. Am. Bankers Ass’n, 172 N.H. 528,
532 (2019). If the alleged facts do not constitute a basis for legal relief, we will
reverse the denial of the motion for judgment on the pleadings. See LaChance,
156 N.H. at 93.
The Selectwomen argue that the plaintiff failed to adequately allege that
the disclosed information would adversely affect his reputation as required to
state a claim under RSA 42:1-a, II(a). We agree.
Resolving the Selectwomen’s argument requires that we interpret RSA
42:1-a’s language. Statutory interpretation presents a question of law, which
we review de novo. Clark, 171 N.H. at 650. In matters of statutory
interpretation, we are the final arbiters of the intent of the legislature as
expressed in the words of the statute considered as a whole. Id. at 650-51. We
first look to the language of the statute itself and, if possible, construe that
language according to its plain and ordinary meaning. Id. at 651. We interpret
legislative intent from the statute as written, and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include. Id. When statutory language is plain and unambiguous, we need
not look beyond the statute itself for additional evidence of legislative intent.
Id.
We begin with the language of the statute. As relevant here, RSA 42:1
(2012) provides that any town officer who violates his or her oath of office “shall
be . . . dismissed from the office involved.” RSA 42:1-a allows the superior
court to entertain petitions to dismiss a town officer for violating the oath. RSA
42:1-a, I (2012). The statute further provides, in relevant part:
[I]t shall be considered a violation of a town officer’s oath for the
officer to divulge to the public any information which that officer
learned by virtue of his official position, or in the course of his
official duties, if:
4
(a) A public body properly voted to withhold that information
from the public by a vote of 2/3, as required by RSA 91-A:3, III,
and if divulgence of such information . . . would adversely affect
the reputation of some person other than a member of the public
body . . . .
RSA 42:1-a, II(a).
Accordingly, to state a claim under RSA 42:1-a, II(a) in this case, the
plaintiff was required to plead that: (1) the Selectwomen divulged information
to the public which they learned by virtue of their official positions or in the
course of their official duties;2 (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”;3
and (3) “divulgence of such information would . . . adversely affect the
reputation” of the plaintiff. Id. For purposes of this appeal, we will assume,
without deciding, that the plaintiff sufficiently pled the first two requirements.
We therefore focus our analysis upon whether the plaintiff adequately alleged
that the information divulged would adversely affect his reputation. See id.
Because “adversely” is not defined for purposes of RSA 42:1-a, we turn to
the dictionary for guidance. See In re J.P., 173 N.H. 453, 463 (2020). The
American Heritage Dictionary of the English Language defines “adverse” as
“[c]ontrary to one’s interests” or “harmful or unfavorable.” American Heritage
Dictionary of the English Language 25 (5th ed. 2011). The New Oxford
American Dictionary similarly defines “adverse” as “harmful” or “unfavorable.”
New Oxford American Dictionary 24 (3d ed. 2010). Thus, divulged information
“would adversely affect” the plaintiff’s reputation if the information would be
harmful or unfavorable to his reputation. RSA 42:1-a, II(a).
2 Neither the Selectwomen, in their motion for judgment on the pleadings, nor the trial court, in its
decision on that motion, expressly addressed whether the Selectwomen “divulged” information
under RSA 42:1-a, II. The plaintiff’s complaint alleges, based “upon information and belief,” that
the Selectwomen “caused the information they discussed to be divulged to the public,” but that
the town administrator “publicly divulged the matters that the [Board] discussed in the non-public
session.” Because neither the parties nor the trial court expressly raised the issue, we will
assume, without deciding, that the plaintiff sufficiently alleged that the Selectwomen divulged
information under RSA 42:1-a, II.
3 RSA 91-A:3, III does not explicitly state that a recorded vote is required before previously
withheld information may be disclosed. The statute requires that a recorded vote occur before a
public body may withhold minutes and decisions reached in nonpublic session from public
inspection. RSA 91-A:3, III. However, the statute requires no similar vote before withheld
information may be disclosed. It provides only that the “information may be withheld until, in the
opinion of a majority of members, the aforesaid circumstances no longer apply.” Id. Although we
need not, and do not, decide whether principles of statutory interpretation compel a recorded vote
to occur before withheld information may be disclosed under the statute, and therefore whether
the Board complied with the statutory process in this case, the legislature may wish to examine
RSA 91-A:3, III and clarify whether a recorded vote is necessary.
5
In his complaint, the plaintiff alleges that the information disclosed at
the June 4 public session adversely affected his reputation, in part because it
“enable[d] the public to identify the subject of the meeting, the individual
discussed during that meeting, and connect [the plaintiff’s] name to the
[Board’s] policy changes, which impacted the entire public.” During the public
session at the June 4 meeting, the town administrator read the plaintiff’s
Citizen Inquiry and a portion of the town counsel’s response, and Selectwoman
Newton noted the Board’s “decision to no longer address criticisms of the Board
. . . in public.”
By reading the plaintiff’s Citizen Inquiry, the Board merely revealed that
he took issue with the Selectwomen’s treatment of him and voiced his
grievance to the Board. We conclude that the disclosure of this information is
insufficient, as a matter of law, to be harmful or unfavorable to a person’s
reputation, particularly given the facts and circumstances in this case. The
plaintiff’s complaint implies that, given the opportunity, he would have
requested an open meeting such that the Board’s discussion of his Citizen
Inquiry would have occurred in public session, revealing the nature of his
Citizen Inquiry, if not its substance. Similarly, had the Board or Selectwomen
acceded to the plaintiff’s demands set forth in his Citizen Inquiry — that the
Board censure the Selectwomen and the Selectwomen issue the plaintiff a
televised apology — the fact that the plaintiff submitted the Citizen Inquiry and
the Citizen Inquiry’s contents would have become public knowledge. We
cannot conclude that the disclosed information, which the plaintiff himself took
actions to make public, would be harmful or unfavorable to his reputation
under RSA 42:1-a, II(a).
Furthermore, that the Board sought, received, and publicly disclosed the
town counsel’s advice regarding the plaintiff’s Citizen Inquiry demonstrates
that the Board took the plaintiff’s concerns seriously and sought to
appropriately and adequately address them. The June 4 public session
minutes reveal that the town administrator explained that the town counsel’s
“main point was that [the Selectwomen] strongly disagreed with [the plaintiff]
which is not formal censure and therefore does not warrant a public apology.”
Disclosing that the Board ensured the plaintiff’s complaint was properly
responded to by seeking legal advice would not be harmful or unfavorable to
the plaintiff’s reputation. Accordingly, we conclude that public disclosure of
the plaintiff’s own words and the town counsel’s response to his demands did
not adversely affect the plaintiff’s reputation. RSA 42:1-a, II(a); cf. Touma v. St.
Mary’s Bank, 142 N.H. 762, 765 (1998) (concluding, in the defamation context,
that a foreclosure notice improperly implying that the plaintiff was suffering
“financial problems serious enough to warrant foreclosure would injure the
plaintiff’s reputation in the community”).
Nor are we persuaded by the plaintiff’s conclusory allegation that his
reputation was adversely affected because the Selectwomen divulged the
6
information in a manner “that would enable the public to . . . connect [his]
name to the [Board’s] policy changes, which impacted the entire public.” At the
June 4 meeting at which the plaintiff’s Citizen Inquiry was read, Selectwoman
Newton simply announced the Board’s decision to no longer publicly address
criticisms directed at the Board, while also noting that the Board would
“handle [such criticisms] in another way.” The minutes of the June 18
meeting, at which the Board actually decided to eliminate the Citizen Inquiry
process, do not reveal that the Board mentioned the plaintiff’s name at all in
connection with its decision. Thus, the plaintiff’s identity was not linked to the
Board’s conclusion to eliminate the Citizen Inquiry process.
Although the Board ultimately decided to eliminate the Citizen Inquiry
process, other means by which citizens could lodge grievances with the Board
remained available to the public. Selectwoman Sharps explained at the June
18 meeting that these avenues included “contact[ing] the Town Administrator,
fil[ing] a Right-to-Know [Law] request, or ask[ing] to be on the agenda and
attend[ing] a meeting.” Accordingly, even assuming that the basis for the
Board’s policy change could be connected to the plaintiff, the change had no
impact on the public’s ability to lodge complaints with the Board. Any
association between the policy change and the plaintiff’s identity, therefore,
would not be harmful or unfavorable to his reputation.
The plaintiff also suggests that, because the Board voted to seal the
minutes of the nonpublic session under RSA 91-A:3, III, divulgence of the
information necessarily violated RSA 42:1-a, II(a). However, the Board’s
decision to withhold information from public inspection under RSA 91-A:3, III
because it believed that such information “likely would affect adversely” a
person’s reputation has no bearing on our analysis of whether information
disclosed was capable, as a matter of law, of adversely affecting a person’s
reputation under RSA 42:1-a, II(a). See Clark, 171 N.H. at 650-51 (explaining
that in matters of statutory interpretation, this court is the “final arbiter[]” of
the legislature’s intent); see also Trustees of Dartmouth Coll. v. Town of
Hanover, 171 N.H. 497, 508 (2018) (observing that the court is not bound by a
town planning board’s interpretation of the board’s own regulations). Thus,
public bodies should continue to vote to withhold information under RSA 91-
A:3, III when warranted. Nonetheless, the scope of our review is not bound by
a public body’s incorrect conclusion that disclosure of certain information
would likely harm an individual’s reputation.
In sum, because we conclude that the information disclosed did not
adversely affect the plaintiff’s reputation, he failed to state a claim under RSA
42:1-a, II(a). The Selectwomen’s motion for judgment on the pleadings
therefore should have been granted.
7
B. The Selectwomen’s Motion for Attorney’s Fees
We now turn to the Selectwomen’s argument that the trial court erred by
denying their motion for attorney’s fees. We review the trial court’s decision
concerning attorney’s fees for an unsustainable exercise of discretion. Fat
Bullies Farm, LLC v. Devenport, 170 N.H. 17, 30 (2017). To warrant reversal,
the discretion must have been exercised for reasons clearly untenable or
unreasonable to the prejudice of the Selectwomen. Id. In evaluating the trial
court’s ruling on attorney’s fees, we give “tremendous deference” to its decision
on whether to award fees. Id. (quotation omitted).
The general rule in New Hampshire is that parties pay their own
attorney’s fees. Id. at 29. However, there exist two judicially-created
exceptions to this rule: the bad faith litigation and substantial benefit theories.
Id. at 30. The Selectwomen argue that they are entitled to attorney’s fees
under either theory.
Attorney’s fees may be awarded under the bad faith litigation theory
against a party who has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons, when the party’s conduct can be characterized as
unreasonably obdurate or obstinate, and when it should have been
unnecessary for the prevailing party to have brought the action. Id. The
purpose in awarding attorney’s fees against a party who has acted in bad faith
is to do justice, vindicate rights, and discourage frivolous lawsuits. Id.In support of their argument that the plaintiff acted in bad faith, the
Selectwomen allege that the plaintiff sought to remove them from office through
the electoral process, singled them out for litigation without bringing suit
against the other Board members who were involved with the June 4
disclosure, and engaged in “substantial discovery,” including “lengthy
interrogatories,” “extensive” document production requests, and “protracted
depositions.” The trial court, however, after engaging in a “dispassionate
review of the evidence,” found that “[a]ll of the parties have litigated this case
vigorously” and concluded that insufficient grounds existed to award attorney’s
fees under the bad faith litigation theory. In light of the record, which includes
only a portion of the parties’ interrogatories, document production requests,
and depositions, and the deference we accord trial courts in deciding whether
to award fees, we cannot conclude that the trial court acted unreasonably by
denying the Selectwomen attorney’s fees under the bad faith litigation theory.
See Grenier v. Barclay Square Commercial Condo. Owners’ Assoc., 150 N.H.
111, 118 (2003) (affirming trial court’s decision not to grant fees under the bad
faith litigation theory because the record supported the trial court’s decision).
We observe that the plaintiff did not sue the town administrator or any of
the other three Board members who were present at the meetings with which
the plaintiff takes issue and on which his action is based. Although bringing
8
suit solely against the two Selectwomen suggests that animus may have
motivated this litigation, our prior cases make clear that “[a] plaintiff’s motive
in bringing an action . . . does not determine whether an action is frivolous”
and that simply “bear[ing] the opposition ill will” provides an insufficient basis
upon which to award fees against a party. Kukene v. Genualdo, 145 N.H. 1, 6
(2000).
The Selectwomen next argue that the substantial benefit theory entitles
them to attorney’s fees. Under the substantial benefit theory, attorney’s fees
may be awarded when a litigant’s action bestows a substantial benefit not only
on the party who litigated the action, but on the public as well. See Jesurum v.
WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016); Bedard v. Town of Alexandria,
159 N.H. 740, 744 (2010).
We first recognized the substantial benefit theory in Silva v. Botsch, 121
N.H. 1041 (1981). There, we found it appropriate to award fees to a selectman
who “expended his own funds” to successfully bring an action against other
select board members who attempted to remove him from a town planning
board. Id. at 1042-43. Likening the case to a situation in which a trustee is
entitled to fees for successfully litigating for the benefit of the trust as a whole,
we reasoned that fees were justified because the selectman’s actions “conferred
a ‘substantial benefit’ on the” town and State. Id. at 1043. We have since
applied the theory to other instances in which a public official has successfully
prevented his or her removal from office. See Town of Littleton v. Taylor, 138
N.H. 419, 421, 424-25 (1994) (requiring a town to pay fees, under the
substantial benefit theory, to a selectwoman who successfully defended against
an action to declare her simultaneous employment as a town librarian and
service as a selectwoman illegal); Foster v. Town of Hudson, 122 N.H. 150, 152
(1982) (requiring a town to pay fees, under the substantial benefit theory, to a
police chief who successfully challenged an attempt to oust him from office).
Although the Selectwomen have successfully defended against an
attempt to remove them from public office, we have rejected previous entreaties
to apply the substantial benefit theory as a basis for awarding fees to
government bodies or against private individuals. See Jesurum, 169 N.H. at
482-83; Bedard, 159 N.H. at 746. In Bedard, 159 N.H. at 746, we explained
that “[a] governmental entity’s responsibilities include protection of the public
interest, and therefore, the award of attorney’s fees for successfully meeting
this responsibility is neither necessary nor warranted.” Id. Accordingly, we
declined to award fees under the theory to a town that successfully defended a
declaratory property action brought by individual property owners. Id. at 741-
42, 746. In Jesurum, 169 N.H. at 473-74, 482-83, an action between two
private parties, we refused to grant fees under the theory to a plaintiff who won
a judgment declaring that both he and the public had a prescriptive easement
9
over land owned by the defendant trust, observing that “such an award would
be a substantial departure from our case law, as we generally do not grant fees
against a private litigant absent a showing of bad faith.”
Thus, although we agree that the Town of Ashland’s residents benefited
from the Selectwomen’s successful defense of the plaintiff’s attempt to remove
them from public office, see Silva, 121 N.H. at 1043, it does not follow that they
are entitled to fees under the substantial benefit theory. The Selectwomen seek
to invoke the theory to justify an award of fees against a private party, an
outcome we rejected in Jesurum. See Jesurum, 169 N.H. at 483. As we
explained in Jesurum, “the cases in which attorney’s fees have been imposed
against a losing party under a public benefit theory generally involve situations
in which the party bearing the fees is able to spread such costs amongst the
persons who receive the benefit of the litigation.” Id.; see, e.g., Claremont
School Dist. v. Governor (Costs and Attorney’s Fees), 144 N.H. 590, 596, 598
(1999) (awarding fees under the substantial benefit theory to a group of
plaintiffs who sued the State and successfully established a constitutional right
to an adequate education because the plaintiffs “conferred a significant benefit
upon the general public, and it is thus the general public that would have had
to pay the fees incurred if the general public had brought the suit”).
The plaintiff sued the Selectwomen in their official capacities and,
according to the Selectwomen, the Town of Ashland paid for their defense.
Thus, because the public, which has benefited from the Selectwomen’s defense,
has already funded that defense, the rationale underlying the substantial
benefit theory is already fulfilled. Cf. Silva, 121 N.H. at 1042-43 (awarding fees
to a selectman who used his own funds to successfully prevent his removal
from public office). Furthermore, because the Town of Ashland covered their
costs, granting the Selectwomen fees under the theory would essentially be
granting the town fees, which is “neither necessary nor warranted” when a
town satisfies its responsibility to protect the public interest. Bedard, 159 N.H.
at 746. Accordingly, we affirm the trial court’s conclusion that the
Selectwomen are not entitled to fees under either the bad faith litigation or
substantial benefit theories.
C. The Board’s Motion to Dismiss
Finally, we address the Board’s argument that the trial court erred by
denying its motion to dismiss for failure to state a claim. As explained above,
in reviewing a trial court’s ruling on a motion to dismiss, we consider whether
the allegations in the pleadings are reasonably susceptible of a construction
that would permit recovery. Clark, 171 N.H. at 645. We assume the
allegations in the plaintiff’s pleadings to be true and construe all reasonable
inferences in the light most favorable to him. Id. We will reverse the trial
court’s denial of a motion to dismiss if the facts pled do not provide a basis for
legal relief. See id.
10
In his complaint, the plaintiff alleges that, before the Board entered
nonpublic session, he was entitled to some form of notice that the Board
intended to discuss matters which it believed would likely adversely affect his
reputation, so that he could request an open meeting. See RSA 91-A:3, II(c).
The Board asserted in its motion to dismiss that RSA 91-A:3, II(c) does not
impose upon it the obligation to provide such notice. In denying the Board’s
motion, the trial court concluded that “[a] plain reading of the statute implies
at least some form of notice.” It reasoned that the plaintiff’s “right to request
an open meeting on matters pertaining to him” under RSA 91-A:3, II(c) “‘is
rendered meaningless if [he] does not get an opportunity to exercise this right.’”
(Quoting Johnson v. Nash, 135 N.H. 534, 538 (1992).)
On appeal, the Board renews its argument that RSA 91-A:3, II(c) does not
require that a public board provide notice of its intent to discuss matters which
would likely adversely affect an individual’s reputation. Addressing this issue
requires that we interpret RSA 91-A:3, II(c). We review a trial court’s
interpretation of a statute de novo. Clark, 171 N.H. at 650. When interpreting
a statute, we look first to the language of the statute itself and, if possible,
construe that language according to its plain and ordinary meaning. Id. at
651. We interpret legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include. Id.
RSA 91-A:3, II(c) permits a public body to enter nonpublic session to
consider or act upon “[m]atters which, if discussed in public, would likely affect
adversely the reputation of any person, other than a member of the public body
itself, unless such person requests an open meeting.” The statutory language
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. Rather, the notice provision of New Hampshire’s Right-to-Know Law
provides, with additional requirements and exceptions not relevant here, that
“a notice of the time and place of each [public body] meeting, including
nonpublic session, shall be posted in 2 appropriate places.” RSA 91-A:2, II
(Supp. 2020). The plaintiff’s complaint does not allege that the Board failed to
comply with RSA 91-A:2, II’s notice requirements.
Because we will not read language into a statute that the legislature did
not see fit to include, Clark, 171 N.H. at 651, we will not add language to RSA
91-A:3, II(c) requiring that a public body provide notice of its intent to enter
nonpublic session to discuss a particular person. See Brown v. Bedford School
Board, 122 N.H. 627, 628-29, 631 (1982) (refusing to read into RSA 91-A:2 a
personal notice requirement for probationary teachers who were not rehired
following a discussion of their employment status at a meeting of a public
body). Had the legislature sought to require such notice, it would have done so
11
explicitly, as other states have done. Massachusetts’ public meeting law, for
example, expressly requires that, if a public body plans to meet in nonpublic
session to discuss a person’s “reputation, character, physical condition or
mental health,” that person must “be notified in writing by the public body at
least 48 hours prior to the proposed” nonpublic session and be allowed to
request a public session. Mass. Gen. Laws Ann. ch. 30A, § 21(a)(1) (West
2021); see La. Rev. Stat. Ann. § 42:17 (2021) (allowing a public body to meet in
nonpublic session to discuss “the character, professional competence, or
physical or mental health of a person” and requiring personal notice to that
person so that they may request a public meeting).
The plaintiff, like our dissenting colleague, relies, in part, on Johnson,
135 N.H. 534, to argue that RSA 91-A:3, II(c) requires some form of notice that
the Board intended to discuss him in nonpublic session. In Johnson, we
interpreted a prior version of RSA 91-A:3, II(a), which allowed a public body to
enter nonpublic session to consider or act upon “[t]he dismissal, promotion or
compensation of any public employee or the disciplining of such employee, or
the investigation of any charges against him, unless the employee affected
requests an open meeting.” Id. at 537 (quotation and emphasis omitted). We
noted that “RSA 91-A:3, II(a), is grounded in a legislative concern for protecting
the public employee from improper official conduct by compelling the
government to make public the considerations on which its actions are based”
and that “an employee’s right to ‘compel’ public discussion of his or her
termination is rendered meaningless if the employee does not get an
opportunity to exercise this right.” Id. at 537-38 (quotation omitted). “Because
it would be unreasonable to expect public employees to attend every public
meeting in which their termination could conceivably be considered,” we
concluded that a public body could not go into nonpublic session under RSA
91-A:3, II(a) “unless it ha[d] previously put that employee on notice” of the
nonpublic session.4 Id. at 538.
The plaintiff and our dissenting colleague contend that our reasoning in
Johnson compels a similar interpretation of RSA 91-A:3, II(c) as requiring a
public body to provide some form of notice of its intent to discuss an individual
before it may meet in nonpublic session under that provision. We disagree. In
Johnson, we based our analysis of RSA 91-A:3, II(a) upon the recognition of a
specific and narrow “legislative concern for protecting the public employee from
improper official conduct by compelling the government to make public the
considerations on which its actions are based.” Johnson, 135 N.H. at 537
(quotation omitted). We do not perceive a similar specific legislative concern
4 Before Johnson was decided, the legislature amended RSA 91-A:3, II(a) to essentially its current
form, which provides that a public body may enter nonpublic session to consider or act upon the
dismissal, promotion, or compensation of, or the investigation of charges against, any public
employee, “unless the employee affected (1) has a right to a meeting and (2) requests that the
meeting be open, in which case the request shall be granted.” RSA 91-A:3, II(a); see Laws 1992,
34:1; see also Laws 2008, 303:4 (adding a comma and pronoun).
12
underlying RSA 91-A:3, II(c). Furthermore, the purpose of the Right-to-Know
Law is to facilitate governmental transparency, see Lambert v. Belknap County
Convention, 157 N.H. 375, 378-79 (2008), not to create personal rights to
notice for individuals who may be discussed in a non-public session, cf. San
Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991)
(observing that the Texas Open Meetings Act “is not a legislative scheme for
service of process” and “[t]he intended beneficiaries of the Act are not
individual citizens, . . . but members of the interested public”).
Indeed, we question to what extent Johnson has any precedential value,
given that it was decided after the legislature amended the language in RSA 91-
A:3, II(a) that we addressed in that opinion. Nevertheless, the legislature did
not, and has not, amended the statute to confer the broad rights of notice that
the minority suggests that the “reasoning” of Johnson mandates. Nor do we
believe that this court (or the legislature, for that matter) ever intended to
impliedly confer such an expansive right to notice upon an even broader
category of citizens, i.e., “any person” who might seek to prevent a public body
from entering into a nonpublic session upon the assumption that the body’s
discussions “would likely affect adversely [his or her] reputation.” RSA 91-A:3,
II(c). Beyond the practical implications of imposing such a rule, we, unlike our
colleague, are unwilling to read language into the statute that the legislature
did not see fit to include. See Clark, 171 N.H. at 651. Should the legislature
disagree with our interpretation of RSA 91-A:3, II(c), it is, of course, “free,
subject to constitutional limitations, to amend the statute.” State v. Dor, 165
N.H. 198, 205-06 (2013).
III. Conclusion
For the reasons stated above, we affirm the trial court’s decision denying
the Selectwomen attorney’s fees. However, we reverse its decisions denying the
Selectwomen’s motion for judgment on the pleadings and the Board’s motion to
dismiss.
Affirmed in part; reversed in part;
and remanded.
HICKS and BASSETT, JJ., concurred; HANTZ MARCONI, J., concurred
in part and dissented in part.
HANTZ MARCONI, J., concurring in part and dissenting in part. I agree
with my colleagues that the plaintiff’s complaint fails to adequately allege that
the information the Selectwomen disclosed would adversely affect his
reputation under RSA 42:1-a, II(a) (2012) and that the Selectwomen are not
entitled to attorney’s fees. We part ways, however, on the question of whether
RSA 91-A:3, II(c) (2013) required the Board to notify the plaintiff prior to its
June 4, 2018 nonpublic session. Given the purpose of, and our rules of
13
statutory construction regarding, the Right-to-Know Law, I would hold that,
when a public body seeks to invoke RSA 91-A:3, II(c) to enter nonpublic session
to discuss matters that would likely adversely affect a person’s reputation, the
public body must provide some form of notice to the person whose reputation
would likely be adversely affected. Accordingly, I respectfully dissent from the
majority’s conclusion to the contrary.
The ordinary rules of statutory construction apply to our review of the
Right-to-Know Law. CaremarkPCS Health v. N.H. Dep’t of Admin. Servs., 167
N.H. 583, 587 (2015). When examining the language of a statute, we ascribe
the plain and ordinary meaning to the words used. Id. We interpret legislative
intent from the statute as written and will not consider what the legislature
might have said or add language that the legislature did not see fit to include.
Id. We also interpret a statute in the context of the overall statutory scheme
and not in isolation. Id.The Right-to-Know Law’s purpose “is to ensure both the greatest possible
public access to the actions, discussions and records of all public bodies, and
their accountability to the people.” RSA 91-A:1 (2013). Thus, the Right-to-
Know Law “furthers our state constitutional requirement that the public’s right
of access to governmental proceedings and records shall not be unreasonably
restricted.” Censabella v. Hillsborough Cnty. Attorney, 171 N.H. 424, 426
(2018); see N.H. CONST. pt. I, art. 8. Accordingly, as we have often stated, “we
resolve questions regarding the Right-to-Know Law with a view to providing the
utmost information in order to best effectuate the statutory and constitutional
objectives” of public access to governmental proceedings. Censabella, 171 N.H.
at 426. As a result, we broadly construe provisions favoring disclosure and
interpret exemptions restrictively. CaremarkPCS Health, 167 N.H. at 587.
The Right-to-Know Law provides that “all meetings . . . shall be open to
the public.” RSA 91-A:2, II (Supp. 2020). Public bodies, therefore, “shall not
meet in nonpublic session, except for one of the purposes set out in paragraph
II.” RSA 91-A:3, I(a) (2013). RSA 91-A:3, II(c) — one of twelve exemptions set
forth in paragraph II — permits public bodies to meet in nonpublic session to
consider or act upon “[m]atters which, if discussed in public, would likely affect
adversely the reputation of any person, other than a member of the public body
itself, unless such person requests an open meeting.” RSA 91-A:3, II(c); see
RSA 91-A:3, II (Supp. 2020). This exemption, therefore, restricts a public
body’s ability to meet in nonpublic session, in that it cannot do so if the
affected “person requests an open meeting.” RSA 91-A:3, II(c).
When RSA 91-A:3 is construed in the context of the overall statutory
scheme, requiring some form of notice to the person whose reputational
interest justifies the public body entering nonpublic session under RSA 91-A:3,
II(c) effectuates the Right-to-Know Law’s overall purpose of promoting the
“greatest possible public access to the actions, discussions, and records of all
14
public bodies.” RSA 91-A:1; see White v. Auger, 171 N.H. 660, 666 (2019). A
person cannot exercise the right to request an open meeting — and thereby
prevent a public body from needlessly entering nonpublic session — when he
or she lacks notice of the body’s intent to enter nonpublic session to discuss
“[m]atters which, if discussed in public, would likely affect adversely” his or her
reputation. RSA 91-A:3, II(c). Giving full effect to the language the legislature
saw fit to include, in my view, requires notice to such individuals. See
CaremarkPCS Health, 167 N.H. at 587.
The majority concludes, to the contrary, that RSA 91-A:3, II(c) does not
require notice to the person whose reputational interests prompt the public
body to enter nonpublic session “to afford the individual an opportunity to
request an open meeting.” This conclusion rests, at least in part, on the
premise that because RSA 91-A:3, II(c) does not contain an express notice
requirement, such notice is not required. In my view, the majority’s reading of
RSA 91-A:3, II(c) contravenes both our rules of statutory construction and the
sole purpose of the Right-to-Know Law.
RSA 91-A:3, II(c) balances the public’s right to know with the privacy
interests of a person whose reputational interests would likely be adversely
affected if a particular matter were discussed in public. See RSA 91-A:3, II(c).
Under paragraph II(c), the preservation of a person’s reputational interest is the
sole justification for a public body entering nonpublic session. RSA 91-A:3,
II(c). Where the affected person would rather the discussion remain open to
the public, that justification evaporates and the public body is no longer
entitled to meet outside of public view. See RSA 91-A:3, I(a), II(c); Ettinger v.
Town of Madison Planning Bd., 162 N.H. 785, 788 (2011) (“A public body bears
the burden of proving that it may hold a nonpublic assembly of its members.”).
Absent notice, giving the affected person an opportunity to request an open
meeting, the majority’s interpretation will, essentially, lead to more discussions
occurring outside of public view, contrary to the purpose of the Right-to-Know
Law. See RSA 91-A:1.
As the majority acknowledges, the plaintiff’s complaint suggests that he
would have requested an open meeting had he known that the Board intended
to enter nonpublic session to discuss matters that would likely adversely affect
his reputation. Thus, the Board’s discussion during the June 4 nonpublic
session appears to have been unjustifiably concealed from public view. To me,
this result, one that the majority appears to endorse, is contrary to the
statutory and constitutional objectives of public access to governmental
proceedings. See N.H. CONST. pt. I, art. 8; RSA 91-A:1; see also Censabella,
171 N.H. at 426.
Additionally, if the majority’s reading of RSA 91-A:3, II(c) is correct, the
legislature’s addition of “unless such person requests an open meeting” is
meaningless. RSA 91-A:3, II(c). The practical consequence of the majority’s
15
decision is that an individual will likely never have the opportunity to request
an open meeting under RSA 91-A:3, II(c). Without some sort of notice, the
person whose reputational interests prompt the public body to enter nonpublic
session does not know about his or her right to request an open meeting. It is
difficult to imagine that the legislature, in drafting RSA 91-A:3, II(c), intended
to create a statutory right that cannot be exercised. See White, 171 N.H. at
666 (“The legislature is not presumed to waste words . . . .”). Requiring that a
public body notify the affected person of its intent to enter nonpublic session to
discuss matters that would likely adversely affect the person’s reputation
allows him or her to exercise the right created by RSA 91-A:3, II(c), advances
the principles of open government embodied in our Right-to-Know Law, and
gives full effect to the legislature’s choice of words. See id.; Censabella, 171
N.H. at 426.
Although our principles of statutory construction regarding the Right-to-
Know Law, and its purpose, are sufficient to persuade me that the plaintiff was
entitled to notice of the nonpublic session under RSA 91-A:3, II(c), I find
further support for my position in our decision in Johnson v. Nash, 135 N.H.
534, 537-38 (1992) (reading a notice requirement into the language of RSA 91-
A:3, II(a), which has since been amended). Johnson involved a meeting of the
Town of Middleton select board at which the selectpersons entered nonpublic
session to discuss the termination of the plaintiff, a town employee, without
providing him notice of its intent to discuss his employment at its meeting or in
nonpublic session. Id. at 535. Upon reentering public session, two of the three
selectpersons voted to terminate the plaintiff. Id. The other selectperson, “who
warned his colleagues that firing the plaintiff in this manner was illegal,”
abstained. Id.At the time, RSA 91-A:3, II(a) permitted public bodies to enter nonpublic
sessions to consider or act upon “[t]he dismissal, promotion or compensation of
any public employee or the disciplining of such employee, or the investigation
of any charges against him, unless the employee affected requests an open
meeting.” Id. at 537 (quotation omitted). The two selectperson-defendants
argued on appeal that “personal notice [to the plaintiff] was not required”
because “the statute did not explicitly create an affirmative duty for them to
inform the plaintiff that a motion would be made to consider his termination in
[nonpublic] session.” Id. We disagreed, explaining that, “[c]learly, an
employee’s right to ‘compel’ public discussion of his or her termination is
rendered meaningless if the employee does not get an opportunity to exercise
this right.” Id. at 537-38. Therefore, we held that “a governmental body may
not move to go into [nonpublic] session for the purpose of considering the
termination of a public employee unless it has previously put that employee on
notice that such a motion would be made.” Id. at 538.
Johnson supports my interpretation of RSA 91-A:3, II(c) because,
construing language that is identical to the language of RSA 91-A:3, II(c) in all
16
relevant respects, we reached the opposite result there than that reached by
the majority here. See id. at 537-38; see also RSA 91-A:3, II (only two of the
twelve exemptions — paragraphs (II)(a) and (II)(c) — afford affected persons the
right to prevent nonpublic session). The Board suggests, and the majority
infers, that Johnson is distinguishable from this case because Johnson
involved a public employee’s interest in his employment, whereas this case
involves an individual’s reputational interest. The majority contends that, in
reading a notice requirement into the language of RSA 91-A:3, II(a), our
analysis in Johnson rested upon “a specific and narrow ‘legislative concern for
protecting the public employee from improper official conduct by compelling
the government to make public the considerations on which its actions are
based.’” (Quoting Johnson, 135 N.H. at 537.)
Even if I agreed that Johnson’s analysis of RSA 91-A:3, II(a) rested solely
upon so narrow a ground, RSA 91-A:3, II(c) is rooted in a legislative concern for
protecting a person’s reputation — an interest at least as significant as the
public employment interest at issue in Johnson, if not more significant.5 See
State v. Veale, 158 N.H. 632, 638-39 (2009) (finding “ample support in our
jurisprudence for the proposition that reputational stigma can, by itself,
constitute a deprivation of liberty deserving due process” under the State
Constitution); cf. Appeal of Alexander, 163 N.H. 397, 407 (2012) (“[W]e have
repeatedly reaffirmed that, as a matter of State law, public employment without
more, such as a commission of office, does not rise to the level of a protected
property right” for due process purposes.). Accordingly, if the specific
legislative concern at issue in Johnson warranted our reading a notice
requirement into the language of RSA 91-A:3, II(a), as the majority contends, I
see no reason why the reputational interest underlying RSA 91-A:3, II(c) would
not likewise require notice to affected persons.
5That the information disclosed by the Selectwomen could not adversely affect the plaintiff’s
reputation does not alter my belief that, prior to entering nonpublic session, the Board was
required to provide the plaintiff notice of its intent to do so under RSA 91-A:3, II(c). The right to
request an open meeting is triggered by a public body’s decision to enter nonpublic session to
discuss matters that would likely adversely affect a person’s reputation — not the result of a
court’s post hoc determination as to the actual adverse effect. See RSA 91-A:3, II(c) (2013).
17