Electronic messaging saturates New Hampshire life, but holding elected officials accountable for using electronic means to make decisions privately has been mired in a debate that goes to the heart of the state’s rural nature: its three-member, volunteer local boards.

When two board members happen upon each other at the town dump or store, they constitute a quorum, so deciding town business is illegal under the state’s Right-to-Know Law.

Legislation to guide small boards on chance or “outside” meetings and electronic-record keeping and electronic communications, including e-mails, has died twice in three years. At issue is whether board members happening upon one another should be able to talk about town business at all.

Those who say yes argue the public has to have some faith that elected officials won’t deliberate at chance meetings, or use sequential e-mails – reaching a majority of members step-by-step – to bypass the spirit of the law. Right-to-know advocates say faith must be tempered with strict dos and don’ts.

Legislators on both sides think they’ve struck a fair balance this year in a bill that appears to have key support it needs to pass.

“After six years, I’m not predicting anything. I feel a lot better about this one,” says Rep. John Thomas, chairman of the state Right-to-Know Oversight Commission and the main sponsor of the bill. The commission was created after the state Supreme Court urged lawmakers in 2001 to bring the Right-to-Know Law into the electronic age.

Open meetings are not required by the First Amendment, according to the national First Amendment Center.

But in New Hampshire, the public’s right to know what its government is doing is enshrined in the state constitution’s Bill of Rights. It says government should be “open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”

The Right-to-Know Law spells out what constitutes a meeting, how the public should be notified, when copies of documents should be provided and when meetings can be closed. The law does not cover electronic records and communications and pays little attention to conduct outside official meetings – all of which are addressed in the bill.

The bill also would allow one or more members of a board to participate electronically if the public can hear or see the discussion.

The bill purposely does not define electronic communications as e-mail, so all forms of electronic messaging are covered when public business is conducted – from instant-messaging from a home computer to text-messaging by cell phone. Private e-mails about public businesss would have to be made public upon request under the bill.

The bill does not ban outside, unscheduled meetings by members of a board and it clarifies existing law by stating that chance meetings are not violations if board members do not deliberate. Thomas acknowledges that won’t satisfy everyone.

“There are conspiracy theorists. Those people are never going to change. You can’t base your system around a perception,” he said. “In this case, there has to be a broad brush, but the brush has to contain all the bristles.”

Rep. Shawn Jasper, chairman of Hudson’s five-member board of selectmen, led the fight last year to derail a bill containing stronger restrictions on outside meetings. He said he supports this bill because it recognizes New Hampshire’s small-town character and that everyday chance encounters and discussion happen.

The bill’s proposed bright line?

“Don’t reach decisions. I understand there are some people who feel the mere discussion of town business is a problem. I think that is not dealing with the reality of how you have to govern,” he said.

The law already shows sensitivity to the needs of small, volunteer boards in how it deals with violators. Judges can award attorneys fees and court costs, but only if the public body knew or should have known it was violating the law. Fees also may be awarded if either side shows bad faith.

A commission subcommittee that worked on the bill recommended against adding criminal penalties and instead suggested considering civil fines ranging from $50 to $1,000 and mandatory attendance at educational programs on the law.

“For the most part, the people who violate the Right-to-Know Law have just made a mistake, especially in a small town,” Thomas said.


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