The Gunstock Area Commission (GAC) is a public body and is required to operate in compliance with RSA 91-A. If they were following the law there would be minutes and notices coming from the Master Planning Committee outlining the work of the committee. They can not produce any such record.
GAC Minutes February 24, 2021
A further troubling issue is that they admit that there has been no vote on that which is included in their Master Plan. Above we can see that they did vote to ‘bake into’ the following year’s budget $100,000 toward producing the Master Plan. One might think that such a contract might have some sort of guidance toward the goals of the Master Plan. One is left to speculation.
This sort of government operation in the shadows is sadly not uncommon. Our Right-To-Know laws are much too weak, and place the burden of oversight on the public. A citizen would have to file a suit in superior court in order to resolve the issue.
In this instance there is a more direct solution available. The county delegation is responsible for the appointment of GAC members. We also have the ability to remove commissioners ‘for cause.’ Violation of RSA 91-A sure seems to be a reasonable cause for removal of the chairman in charge of the commission.
Comments to the Belknap County Delegation November 16, 2021:
We are here tonight to address what has become a hot topic around Belknap county and beyond; Gunstock Mountain Resort.
Let’s start with a point on which all agree; Gunstock is a valuable county asset. As such it is in the interest of all in the county to assure it continues to be properly run and maintained. As far as I know there is no one that is interested in closing or harming Gunstock.
Many people have been chiming in with their opinions on the proper operation of the Gunstock ski area. Having attended most Gunstock Area Commission (GAC) meetings for the past couple of years I have to ask, where have you been?
If all those who write letters to the local paper had been attending GAC meetings, we might not be in the position which requires involvement of the delegation. The letters you write are based solely on information delivered by sources that have their own agenda. You have been used to support a plan of which you know little. Even those who have been following the actions of the GAC have only partial knowledge of the soon to be revealed Master Plan. It might be a useful exercise to ask the GAC when they voted to approve the Master Plan and when the public was allowed to comment on said plan.
Gunstock is a county owned and operated asset. It is not a private business. The GAC is a public body appointed by the Belknap county delegation. As a public entity it is required to adhere to the public meeting laws under RSA 91-A. The development of the Master Plan has had little to no public input and seems to have been produced by a subcommittee of the GAC, yet such a subcommittee has not met publicly nor produced minutes of any meetings. If this is true it is a violation of the right-to-know law, RSA 91-A. If it is not true the GAC can produce records of meeting dates and minutes, along with recommendations from the subcommittee made to the GAC. I have seen no evidence supporting the existence of such records.
GAC By-laws
Article II
Article III
Many letter writers have questioned the timing of the delegations action against members of the GAC. It was not the delegation that demanded the removal of commissioner Ness. The GAC put this issue on the table when they produced a defamatory and baseless claim against Ness. The GAC voted to get a legal opinion regarding the validity of their ethics policy, yet the resulting report from attorney Quarles wandered into defamatory allegations which lacked support of any witnesses or testimony. The GAC voted to censure commissioner Ness without due process. This key failure, to assure that the claim which was delivered to the delegation had merit, is the reason it was dismissed.
While there is currently insufficient evidence available, the GAC votes lacking verifiable facts might be considered reckless and harmful actions against a public official and should be referred to the Attorney General. The report produced by attorney Quarles went beyond the issue of the ethics policy which was approved by the GAC. The report was clearly defamatory. Motivation for the production of the report may be tied to commissioner Ness’ diligence in seeking information necessary to his duties as a member of the GAC. As the scope of work was beyond that which had been authorized, a case for the misuse of funds may be made. Improper Influence – RSA 640:3, Criminal defamation, RSA 644:11, Obstructing Government Administration, RSA 642:1, Official Oppression – RSA 643:1, Conspiracy – RSA 629:3, are criminal elements that may be at issue, along with civil claims that could be brought in the future.
It has been said that the actions of the delegation are unprecedented, and it is true. Unfortunately it is also extremely rare for a board to seek the removal of one of its own members. Once again the delegation is not the initiator of the events. We as a delegation have a duty to ensure that the GAC is properly serving in the public interest. To do anything less is to shirk our responsibilities.
Among many false allegations is an assertion that Gunstock might be closed. This is pure nonsense. Those who spread such absurdities only wish to irresponsibly drum up fear. One is left to speculate as to the source. Perhaps the Laconia Daily Sun would like to advise the public as to the people behind Citizens For Gunstock’s full page ads, or those 2 pages of petition signatures. Sadly it is unlikely that those who signed the petition had much knowledge of that which they signed.
The GAC repeatedly claims credit for the great performance of Gunstock in the past year. While it was a very good year, it would be hard to find a business in outdoor recreation that did not do extremely well in the year of COVID19; housebound people were deprived of their normal activities which would have them in close contact with other people. Boston area skiers unable to get on airplanes swarmed to the north making it a great year for all eastern ski areas. It certainly didn’t hurt to have a reasonably good winter for snow cover. This is said not to diminish the efforts of the employees but to simply put the great fiscal performance in perspective.
Speaking of the financial success of Gunstock, the GAC never fails to remind the public that they have always paid off in a timely fashion their Revenue Anticipation Notes (RAN). It is indeed true. What they never mention is the $6,000,000 default in 2000 which was picked up by county taxpayers. I can assure you the payments made to the county over the past 20 years have not amounted to recovering that loss. I’ll not venture into what kind of bonding might be suggested in the new Master Plan as I have no such knowledge.
As was noticed on Nov. 6, 2021, “On Monday October 25, 2021 attorney Thomas Quarles presented to the Belknap county delegation a Request for Disqualifications (RFD). This request was addressed from four members of the Gunstock Area Commission (GAC), Kiedaisch, Gallagher, McLear, and Dumais. In this request it is made clear by the use of their titles that they are acting as members of GAC.” What is not clear is how attorney Quarles was hired without a meeting of the GAC. This is contrasted by the vote on Nov. 10, 2021 in a public meeting (for which public comment was not allowed) to have attorney Quarles file for a temporary restraining order against the delegation. It appears that attorney Quarles was hired in an unnoticed meeting, prior to producing the RFD, in violation of RSA 91-A. If true, this stands as ‘just cause’ for removal.
Another perplexing question arises from that Nov. 10, 2021 vote to retain counsel. The temporary restraining order explicitly seeks to protect commissioners Kiedaisch, Gallagher and McLear from removal. They had a clear conflict of interest yet they were the only commissioners voting to approve the motion to engage counsel. Expending funds from Gunstock for their own personal protection might be viewed as ‘just cause’ for removal.
Once again, I know of no one that wants to close or harm Gunstock. My only agenda is open and transparent operation of a county asset. I will continue to work for good government and a successful Gunstock Mountain Resort.
Rep. Mike Sylvia Chairman, Belknap County Delegation
PUBLIC MEETING NOTICE:
The
November public meeting of the Gunstock Area Commission will be held on
Wednesday, November 17th at 6PM in the Historic Lodge at Gunstock
Mountain Resort. To view the public notice and tentative agenda, please
click here.
Let’s start this exploration with a very short clip from the August 27, 2020 meeting of the Belknap county commissioners.
Meeting chairman DeVoy stated, “we need to ratify the vote to implement a stipend for mandatory overtime.” He then asked for a roll call vote. The total time spent on this subject in public meeting was 22 seconds.
Go ahead and have another look. Was there a motion to approve a policy? Was there any discussion? What is this vote that they claim to be ratifying?
The relevant section of the meeting agenda tells us:
and the minutes of that meeting;
The commissioners “voted” for this policy on August 17, but that vote seems to have taken over four hours. Anyone with the slightest comprehension of RSA 91-A will understand that the commissioners did not vote on August 17, they did not have a meeting. Lacking a meeting, there was no vote. If there was no vote, then there was nothing to ratify. At best this is a clear admission of a violation of our right-to-know law.
91-A:2 Meetings Open to Public. – I. For the purpose of this chapter, a “meeting” means the convening of a quorum of the membership of a public body… whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously… for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.
I advised the commissioners of their error, in the hope that they would give more consideration to the command of our constitution in Part I, Article 8.
Government, therefore, should be open, accessible, accountable and responsive.
Not only did they ignore it, they paid their attorney to try to explain the problem away.
Attorney Fitzgerald’s first attempt to make the problem go away, his response to the county administrator:
Notice that he states, “a particular action is of no legal effect and did not constitute a binding vote.” And he goes on, “if the tentative approval became a reality through a formal vote at a properly noticed meeting.” I agree, it will become a reality if they ever do have such a vote.
It is clear that attorney Fitzgerald has not seen that 22 seconds of video above. His “understanding is that the matter was raised at the actual meeting, an explanation of the proposed action was provided by Chairman DeVoy and then a vote was taken,” is not based in reality. A good attorney practicing due diligence would not allow such a deviation from the facts.
By stating, “Given the fact,” when operating from a false premise, the result will fall short of good legal advice. We can not know from this if he has failed to acquire the proper facts from which to make his conclusion or if he is trying to be elusive of his own accord. Either case opens attorney Fitzgerald to a question of integrity.
Being less than satisfied with the attempt to brush off my concerns, I formally addressed the commissioners in a letter written on November 2, 2020.
On November 5, 2020 the county administrator wrote to the commissioners outlining her version of the timeline of events. Notably she states, “At the commission meeting 8/27/20, the Board reviewed the policy and ratified its vote of approval in public.” As we saw earlier, attorney Fitzgerald properly had stated that there was no vote on 8/17. And “the Board reviewed the policy” is a stretch referring to the Board’s action (go take another look at the video if you don’t recall all 22 seconds).
The administrator’s letter has another concerning detail, the first shift worked under the new policy happened on August 23, 2020, five days prior to the scheduled vote.
On November 10, 2020 attorney Fitzgerald wrote to the administrator explaining away concerns. He makes the claim that the policy was to be instituted retroactively to 8/14/2020. Once again, do you recall from the video, the discussion of this being implemented retroactively as attorney Fitzgerald suggests.
Next in his letter attorney Fitzgerald re-affirms that there was no illegal communication outside of a meeting; a fine bit of distraction as that was not at issue. The issue is that there was no vote on 8/17/2020 that would need to be ratified on 8/27/2020. Oddly, he mentions ‘the meeting later that evening’ referring to 8/17/2020, there was NO meeting held on that date.
Being less than satisfied with the responses to this issue I sent another letter to the commissioners on November 16, 2020.
Where will this end?
91-A:7 Violation. – Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief.
The county commissioners have a rather poor track record when it comes to abiding by injunctions.
91-A:8 Remedies. – III. The court may invalidate an action of a public body or public agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation.
What judge would say that all those stipends paid in the past year are invalid payments? Can I dream of the commissioners being personally hit with the bill?
Our NH Constitution is the foundation of our republic, without it we would have no state government. Part I of this fundamental document speaks not about the government, but of the rights reserved to the people which are not necessary to the operation of a government. The process of establishing the state government, and assigning only those powers necessary, is outlined in Part II. The reservation of rights in Part I is commonly called the bill of rights.
“Part I, [Art.] 8. All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, 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.”
If we place that in the context of rights reserved by the people, we can see that government should have no secrets. We can observe the qualification ‘unreasonably restricted’ and understand this to be a very high hurdle.
The statutes set the law enforcing Part I, Art. 8 in chapter 91-A, also called our ‘right to know’ law. It starts with a preamble: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter 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.” Greatest possible access!
The House of Representative also incorporates this noble goal in its rules: “110. Open Meetings. All meetings of any committee of the House and Senate shall be open to the public subject to the provisions of N.H. RSA 91-A.”
With all of this as background, the House will again be meeting away from our historic chamber, away from public view. You see our temporary accommodations in Durham excludes the public from the arena. The substitute for the gallery is a computer screen. The view for the public is selected by a camera operator. Interaction between the representatives and the public is eliminated. Greatest possible access?
Were this this worst violation of the people’s rights, that would be bad enough. It does get worse; public hearings on tremendous mash-ups of legislation were cobbled together in the senate. Did the public have access to their senators in that process? Was it a meaningful public hearing? Was the public heard?
The majority in the House has shown its disregard for the constitution, the statutes, and their own rules. Twice this year alone they ignored the rules and when the Speaker was challenged, they demonstrate the evil of pure democracy; might makes right. They are happy to toss away any glimmer of principles and deprive the minority of the justice found in a republican form of government. When challenged on their violation of the public’s access to their government, they will happily vote away the people’s rights; majority rule is their only rule.
