Agenda - Planning Commission - 03/01/2012

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Zoning Bulletin January 25, 2012 1 Volume 61 No. 2 At the scheduled time of the hearing, the Board went into a private ses- sion for 30 minutes. During the private session, they read and discussed: e -mails from the Board's attorney; a m emorandum summarizing legal ad- vice relayed over the phone from the Board's attorney to the Board's ad- ministrative assistance; and letters from the Ettingers' attorney. After this private session, the Board reopened the public hearing. At the conclusion of the public hearing, the Board granted final approval to the Pomeroy application. The Ettingers subsequently filed a petition in superior court. They ar- gued that the private session violated New Hampshire's Right -to -Know Law (the "Law "), RSA 91 -A:2, I(b). The Board argued that its members were permitted to read a letter from counsel and discuss its contents in a private session under the "consultation with legal counsel" exclusion from the definition of "meeting" in the Law. The Law provides that "all meetings, whether held in person, by means of telephone or electronic communication, or in any other man- ner, shall be open to the public." (RSA 91 -A:2, II.) "Meetings" are de- fined as "the convening of a quorum of the membership of a public body `for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.'" (RSA 91 -A:2, I.) "Consultation with legal counsel" is exclud- ed from that definition and therefore not subject to the various require- ments for open meetings contained under the Law. (RSA 91 -A:2, I(b).) The Superior Court agreed with the Ettingers that the private session violated New Hampshire's Right -to -Know Law. The Board appealed. DECISION: Affirmed. As a matter of first impression (i.e., first time the issue was addressed by this appellate court), the Supreme Court of New Hampshire (the "Court ") held that a public body's closed session to discuss the written advice of counsel who is absent does not fit within the "consultation with legal counsel" exclusion of New Hampshire's Right-to-Know Law, RSA 91 -A:2, I(b). In so concluding, the Court looked at the plain language of the stat- ute. It found that a "consultation with legal counsel" did "not encom- pass a situation in which the public body convenes a quorum of its mem- bership only to discuss a legal memorandum prepared by, or at the direc- tion of, the public body's attorney where that attorney is unavailable at the time of the discussion." The court found that, "[a]t the very least," the "consultation with legal counsel" exception required "the ability to have a contemporaneous exchange of words and ideas between the pub- lic body and its attorney." © 2012 Thomson Reuters 3