June 14, 2008
Fosters
The New Hampshire Supreme Court has ruled that the hiring of Belknap County Sheriff Craig Wiggin by the Belknap County Legislative Delegation was illegal because the vote was taken secretly instead of in public.
Lakes Region political activists Doug Lambert of Gilford and Thomas Tardiff of Laconia had challenged the convention’s selection of Wiggin to replace Dan Collis, who left mid-term to take a job in the private sector. The pair filed a lawsuit in Belknap County Superior Court and Judge Bruce Mohl ruled that the replacement process followed by the delegation violated the state’s Right-to-Know Law by using a secret ballot, but said that the entire process could have been conducted in nonpublic session.
But in an 11-page opinion released on Friday, the Supreme Court found the convention was required to fill the vacancy in public session rather than via secret ballot and said Wiggin’s appointment must be “invalidated” as a result.
Stephen Nedeau of Meredith, chairman of the convention, did not returned a telephone message seeking comment.
“The timing is unfortunate,” said Wiggin, a Meredith resident, noting that his department was undergoing final preparations for the start of Motorcycle Week. Essentially saying he was a pawn in the process and didn’t have the authority to tell the convention how to do its job, Wiggin said that despite the legal challenge to his appointment he has enjoyed the chance to serve county residents and work with the staff at the Sheriff’s Office.
“It’s unfortunate that this has dragged on for a year and I have no control,” he said. “I’m just the guy in the middle who can’t tell the delegation what to do. I just hope that it is resolved quickly and that I can get back to work.”
Saying that he was confident that he’s done a good job during his one-year tenure, Wiggin said he holds no animosity toward the delegation, saying it is a citizen legislature attempting to do the best job that it can.
“It certainly wasn’t intentional,” Wiggin said of the since-declared error. He lamented that his deputies had to cope with the unknown when Corliss left and a successor was selected, and then immediately after he was appointed the legal challenge was filed. But in the wake of the challenge, Wiggin said he’s been pleased to receive the support of his staff and the public and for being recognized by his peers and named to head the Belknap County Chief’s Association.
“It was a tug of war,” former Laconia Mayor Tom Tardiff said of the legal battle. Unless the convention files a motion asking for reconsideration within 10 days, Tardiff said the fight is over.
Tardiff said it is his understanding that because the high court had invalidated Wiggin’s appointment, he can no longer serve as sheriff because of potential liability.
Explaining that he felt bad in having a hand in causing Wiggin, a retired state police major, to at least temporarily lose his job, he argued that Wiggin could have “taken the honorable course” and told the delegation that while he appreciated its support, that the vote should be taken again in public to avoid any violation of the law.
“Who’s going to repay the $70,000 that was paid (in salary) to someone who had no authority?” questioned Tardiff. He said the high court’s ruling clearly proves that the convention didn’t follow the law.
In the ruling authored by Justice James Duggan, the high court disagreed with Mohl’s belief that the entire hiring process could have occurred behind closed doors. The court also found that the convention stymied Lambert and Tardiff’s efforts to get copies of the applications the seven candidates for the position of high sheriff had submitted, but it sent back to the lower court for review consideration of whether certain personal information that may be contained in those applications should be redacted or blacked out prior to being released.
Wiggin said he understands the convention will post an agenda for a meeting immediately and that he hopes they can rectify the error without further court order.
On May 29, 2007, the convention convened to discuss the mid-term vacancy created by Sheriff Collis’ departure. To discuss the process for filling the vacancy, the convention voted to enter nonpublic session.
The minutes of that session note, in pertinent part:
“Chair[person] Nedeau announced that the applications for seven candidates have been sent to each . . . member, and that letters of recommendation are on file in Angela Bell’s office and will also be sent out. The [convention] agreed that all seven should be interviewed and asked specific questions. Each [member] will have a score sheet for each candidate.”
On June 11, 2007, the convention again voted to enter nonpublic session. During the nonpublic session, the convention interviewed the seven candidates and ultimately selected two finalists for the vacancy. The convention publicly announced the names of the two finalists but did not disclose the full list of applicants.
On June 23, 2007, the petitioners submitted a written request to Bell to review the seven applications, all letters of recommendation and all score sheets. After speaking with Nedeau, Bell refused to disclose the documents. Alleging a violation of the Right-to-Know Law, the petitioners filed a petition for declaratory judgment against Nedeau and Bell, seeking disclosure of the documents.
Saying the privacy interests of the seven candidates outweighed the public’s interest in disclosure of “otherwise personal information,” Judge Mohl denied Lambert’s and Tardiff’s request.
On June 25, 2007, the convention interviewed the two finalists in public session. After deciding to use a secret paper ballot to vote, the convention, by a vote of 10-4 with one abstention, selected Wiggin as sheriff. Before Wiggin began his official duties as sheriff, the petitioners filed a declaratory judgment action against the convention. They alleged that the convention violated the Right-to-Know Law by using a secret ballot to fill the vacancy and requested that the trial court invalidate the selection of Wiggin as sheriff.
In his ruling, Judge Mohl found that the convention went further than the mandates of the Right-to-Know Law by conducting interviews with the two finalists in public and voting in public session, albeit by secret ballot.
“There was no reason to believe that the convention would reach a different result if the matter were to be revisited,” Mohl wrote of why he declined to invalidate the selection of Wiggin as sheriff.
But the high court found differently, ruling that the vote revealed that four representatives opposed the selection of Wiggin as sheriff and one representative abstained from the vote altogether. In these circumstances, the public’s need for scrutiny was critical since there was no other manner in which members of the public could determine how their representatives voted such that they could then hold the representatives accountable.
“Accordingly, we conclude that the trial court unsustainably exercised its discretion in failing to invalidate the convention’s selection,” the opinion reads.
The high court also disagreed with Mohl’s finding that information in the applications submitted by the candidates should be protected, saying the candidates applied for a vacancy in an elected office.
“Under normal circumstances, they would have run for election and much of their personal information would have been subject to public scrutiny,” the high could found, and that in applying for an elected office the candidates should not have reasonably expected to keep his or her “application” private.
“Finally, in balancing the foregoing interests, we conclude that the public’s interest in disclosure significantly outweighs the privacy interests of the candidates. The sole reason for the application process was the mid-term vacancy caused by the retirement of a sheriff who had been chosen by the people in a prior election. The public has a significant interest in information about the candidates who will fill the elected position. By applying to fill an elected public office, the candidates surrendered much of “the privacy secured by law for those who elect not to place themselves in the public spotlight,” the opinion says.
Attorney Daniel Mullen of Ransmeier & Spellman of Concord represented the convention. Tardiff argued the case orally before the high court.
Chief Justice John Broderick Jr., Justice Linda Dalianis and Justice Gary Hicks concurred.