Jonathan Stone v. City of Claremont

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This is Case 1 23 0 0 8 3. Jonathan Stone versus City of Claremont. Good morning, attorney Taketo. I understand you reserved one minute and, um, I understand Attorney Bisat, you'll be, um, handling the argument for, um, that side. Good morning. My name is Peter Deto. I represent Jonathan Stone. I wanted to begin by telling you that my first lesson in contract law came from my father who had an eighth grade education, and he had told me that a man's word is a man's bond. Later on as I became a lawyer, I became familiar with Article one, section eight and Article one, section 23 of our constitution, and familiar with the US Constitution, part One, article 10, about the impairment of contract. I want to go back in time in 2006, uh, there was a contract made between the city of Claremont and my client, Jonathan Stone. They had agreed that an arbitration that in lieu of presenting some 30 some odd witnesses, that they, uh, would settle the case, And they settled it with a negotiated resignation. The city of Claremont got something. Mr. Stone got something that was the certainty of a result within that stipulated award, because it was approved by an arbitrator, there were certain agreements, one of them had to do with confidentiality of the agreement. It contained language. However, that said, unless, um, it violates the law or unless ordered by a court of competent jurisdiction, the settlement agreement would remain confidential. That's the only paragraph where that language occurred. The next paragraph said that the city of Claremont agreed to purge the record, purge the personnel file. As far as I know, the word purge means to get rid of, to eliminate. As it turned out, instead of purging, the city of Claremont decided that there was another file they would put it in and they put it in. I, I can't recall exactly what the name of the file was. I had called it an other file. I believe the city claimant called it an, in an, um, investigation, an IA file. However, they didn't distinguish between IA files with findings and IA finding and IA files without findings. Because what happened here is that when this case was resolved, they turned the clock back. You see that language in correspondence with the New Hampshire, uh, uh, police Standards and training, training. So the city tells the police standards in training would turn the clock back. We turned it back so far that there are no findings. And so there was no finding of moral turpitude. There was nothing that de-certified Mr. Stone, he was free to become an officer. So, Mr. Taketo, how is it that your client has standing to raise this issue? I'm sorry. How does your client have standing under 91 A To object? I hope that he has the same standing that Provinal had, uh, Provenza had in his appeal. So if we go back, the record reflects that Judge Tucker said, I'm sorry, let me go back a bit. The City of Claremont initiated a petition for declaratory judgment. They felt that was the best way to raise the issue, and incidentally, in that petition, they said that Mr. Stone's privacy rights were considerable substantial, his privacy right, because the city knew about that agreement. In any event, they brought it to Judge Tucker's, uh, attention, and Judge Tucker dismissed the petition for declaratory judgment and indicated to the city that he would prefer that they treat this as a right to know request on the 91 a four or five Roman numeral four. Are you making any claims under RSA 91 A? No. So you've waived any claim that the exemptions of under 91 A to your client, The 91? I, well, let me answer the question this way. The judge gave us a right to enjoin file, a Petition for injunction. I think that's pretty close to what happened. Provenza, uh, Mr. Provenza filed a petition to Enjoin. So at the time, the only parties were Mr. Stone and the city of Mont. The interveners came in and raised the 91 A request on Mr. Mr. Fisher had originally raised the complaint, but he never became a party as such, the interveners came in and raised the nine one A. So, so you're simply seeking to enforce the stipulated award as opposed to making any claim that these records are subject to the balancing of privacy interests under 91 A five Roman four, correct? Well, that's a, that's a high question to answer. I'm here because, you know, three quarters of this case is The way case seems. The way you brief the case seems limited to the contract claims. My feeling is that there's a collision here between impairment of contract and the right to know. I wanna enforce that agreement. I believe it should be enforced. I don't know why it shouldn't be enforced. These folks feel that it comes under the right to know As we're sitting here today, given the state of the law, would you agree that it cannot be enforced given this court's decisions in, in, uh, the right to no decisions, including Mann's being overruled? Essentially, I would say I'm sitting here today having watched the right to no law. Um, um, what do I wanna say? The, the law from 2020, and I've kept track of it emerged, but it wasn't that way in 2006. Our, my question is sitting here today, is the contract enforceable given the current state of the law? I believe it's enforceable, and here's why. There were no findings. There are no, there are no cases that I believe you've ever seen where there was a contract and there was a, there were allegations. It comes down to, uh, whether or not the right to no law requires allegations to be disclosed to the public. The city of claim line and their memorandum even said, this will appeal to the Ian interest of anybody that reads the newspapers. And it will, and it will embarra, embarrass and humiliate my client and embarrass and humiliate a bunch of other people in the city of Claremont. If Mr. Stone decides to defend against that. So is that the right to know law? Does it require the, um, the public to know the allegations are 17 years old? The question is whether the contract is enforceable or not, if it, if it violates public policy. Alright. Uh, that's what the local court said. It said it violated public policy. The, but I'm saying that the public policy we ought to look at was in 2000 6 0 7. Otherwise you'd have an improper retrospective application of a change in the Law. That's the way I feel. And I, I read the, the, uh, seacoast in United, uh, and, uh, the union leader case carefully, and I saw the discussion about Star Reis, and there's one paragraph in there about reliance. And in the course of your looking at whether or not stare decisis should be upheld here, you, you, uh, came to the conclusion that there there was no reliance on the old law. We rely on the old law because Inman Inman was in play, and it had been in play for, I think it was 1993, and we're talking in 2006. So that was the law of the case when they made this agreement. And, um, so that's what we relied on. That was the, uh, public interest of, uh, public right to know back then, uh, when Penman was there, I think the information would've been considered confidential, wouldn't have been disclosed to the public. And then you had the emerging law in 2020 when things changed. I understand that things changed. So, um, peace, justice, I'm not trying to avoid your question. Under today's law, it gets disclosed, but I don't think it should be disclosed. I think it's a retrospective law, and I think my, my client is caught in that trap. So do you agree that if we find that that agreement is void for, because it is against public policy, that's as far as we have to go. That's the end of the case. Your client Loses. I certainly feel that if you, if you find it void because it's, um, against public policy, I'm not sure I can prevail, but I, I do hope that you will look at the retrospective nature of my argument. How do you, 'cause there were expectations. I'm sorry. No, go ahead. Yeah, there were expectations back in 2006 or seven, I can't believe anybody in that room when they made this agreement, saw them coming. And so, uh, we're kind of shocked The the g grievance was with respect to his termination. Isn't that correct? Uh, I would say yes. Uh, it, it's a little, it's a little more than that. There were four grievances covering I think maybe four or five, uh, ias. So you, do you agree that the, uh, agreement only applies to a number of the information requests that are being made here? Not all of 'em. I do. And, uh, I haven't said much about the first eight, but just so I put this on the record, uh, there are eight disciplines. I believe that they're either oral reprimands, verbal reprimands, and on their face consistent with the collective binary agreement. They lasted for one year. So I think the issue is what's the public's interest in seeing a verbal reprimand or written reprimand that occurred 17 years ago? Uh, but, but it seems you agree that the, the stipulated award, the settlement agreement does not apply to the first 7, 8, 8, I think could be eight, but I agree with you. It doesn't cover it. All right. So the extent they're involved in the litigation, you don't have a right. That you're trying to enforce to keep those from becoming public. And Honestly, it's the least of our problems. I think we're we're concerned with the others we're concerned with the ones that were grieved. But at least I want to bring to your attention that the CBA at the time said that it would, um, we'd go away. And the understanding of the grievance procedure pursuant to the CBA at the time was that it was confidential procedure. Exactly. Otherwise, why would people avail themselves of the grievance process? That's true. I think everybody felt it was confidential. That's all I have for Thank you. Unless there's other questions. Were the, were the letters prior to these standards, the ladders prior correspondence between the city and police standards prior to the agreement? What, what are they covered by? Well, that's a good question because I, I think Mr. Fisher asked for those. I think these folks asked for those. Um, but they shouldn't certainly be seen in the vacuum because again, I have no problem with the, with the public seeing the stipulated award. That's how the government worked. That's what their government did in 2006. And if the o object of right to no law is to disclose how your government was working, that's how they operated in 2006. So getting back to the, uh, the correspondence with police standards in training, it just seems to me there's some s girlish charges sort of in the beginning, but at the end of it, because they're saying it was moral turpitude originally, but at the end of it, maybe the public ought to know the, the fact that, uh, that they turned back the clock. That's, those are their terms. They turned back the clock far enough so that there wasn't a finding of wrongdoing. There was no finding. So I said in my brief, this is, uh, using the criminal laws as sort of an analogy. This was placed on file without finding would, Would it be a circumvention, would it be contrary to public policy to have an agreement that would circumvent the de-certification process under New Hampshire law? The circumvented, The De cer Police de-certification process under New Hampshire law In 2006? I think this was appropriate under feineman. And I've, I've seen, for example, in 2003, even the legislature passed a, a bill saying, uh, begin a commission because there was confusion about what the right to no law applied to. So I, I guess my, I mean, my question is under existing police standard rules, at the time, the chief notified the director of the police standards and training counsel said that there had been a, and filed a Form B, that the officer had been discharged. And then the inquiry back from police standards was, well, does he meet any of these criteria for being de de-certified? And the chief responded back, well, I believe it appears that he does in effect. And the effect of this agreement is to, um, put a halt to any further proceedings under the de-certification process of police standards. And isn't that a concern in involving public policy? It, It didn't put a halt to it because the end of it was in furtherance of the agreement. They said that is the city said to police standards and training that we turned back the clock and there were no findings. This officer, You can back the clock, but you can't undo the events. It may implicate the police standards rules. Well, this officer wasn't de-certified. It was free to become a continuous officer. That's the, that's what happened. And this is a public need to know the, the, the volleyball here that the ball went over. I don't know. Thank you, attorney. Thank you. You reserve one minute. Attorney Binette. Thank you, Mr. Chief Justice may have please the court. Jill Binet on behalf of the interveners here

with me at Council Table is attorney Greg Sullivan represents Intervener Union Leader Corporation. Um, I understand that the interveners will have the full 15 minutes as, uh, the, uh, city has waived oral argument in this case. Um, I want to get to the core of what this case is about and what I think the threshold question really is, which is how do we look at the 2007 stipulated award here? And in particular, it's purging and confidentiality provisions in the context of a Right to know law request. And I think, um, here, that stipulated award doesn't apply, and that's for several reasons. First, I just wanna set aside right away, IA reports, uh, number one through seven, they are not covered under the stipulated award. There is no basis for withholding those documents under the Stipulated award. Their traditional nine one A principles apply. Um, and those principles, the balancing test favors disclosure to the extent that 91 a exempts are even being raised at this point, which is not clear to the interveners. So I just wanted to set those aside because with respect to the stipulated, The city's responsibility for the individual's responsibility to raise that privacy interest or vote. Sure. I think that goes to the core question with respect to whether or not a reverse 91 a action is permissible. And I think those concerns are to be raised by the government agency in court, not the particular individual. It is our position that reverse 91 a actions are inappropriate. But that does not mean though, that third parties that may have privacy interests cannot voice their concerns to the government actor, the government body, with respect to their particular privacy rights. But that decision does fall on the government entity. They are the gatekeeper of, uh, the records. Um, uh, and it is ultimately their determination. But isn't that what happened here? I mean, the city manager effectively invited, um, Mr. Stone to intervene and, and, and uphold the privacy, his privacy interest. Yes. But that decision at the end of the day though, is on the government body. The government body took that into consideration and ultimately concluded that the public interest here prevailed over the privacy interest. And we think that those that, Well, I mean the city city manager had concluded that this most the information should be disclosed yes. But then invited the officer to intervene and former officer to intervene and, and effectively overcome the city's dec Conclusion. That's, that is true. And in fact, that is what happened in the original lawsuit, um, that that was, uh, dismissed. And the Superior Court there did effectively invite, um, a lawsuit, um, uh, that the officer could bring if the officer disagreed with the city's decision. And we just respectfully disagree with that approach. Obviously, the, the permissibility of Reverse 91 a actions was not addressed by the Provenza case. And I think there are real costs in con I'm sorry, your Honor. I'm just interested in what is the textual basis for precluding a reverse 91 a? Sure. I I think when you look at R Rs 91 A seven, it says that any person aggrieved by a violation of this chapter a petition, the superior Court for injunctive relief. And here we think person aggrieved means a member of the public who's been aggrieved by a decision on behalf of a government body to, um, not produce information that's been requested. But, But isn't that intention with, uh, a number of cases that we've decided the Caremark, uh, health case and also the Union Leader versus New Hampshire Housing Authority, both of those cases, they have the names of these entities that have gotten involved, intervened in the case to assert their privacy rights. We've done been doing that for 20 years. That's certainly true. And I don't think the issue has actually been, was raised affirmatively in those cases with respect to the propriety of whether or not those actions are appropriate. And in fact, I think it was largely assumed that is okay. But we contested and in fact, in in the FOIA context and with respect to other states, um, that have interpreted, um, their right, right to no law, it is mixed throughout the country. But in this case, we have, we have a contract that somebody standing to enforce Isn't that different? It, it actually might be. I want to get to that point at its core here. So, and Before you leave this one though, don't we read the privacy exemption in light of the amendment to the Constitution solidifying the person's privacy interest That has, that has to do with informational privacy. But what that is designed to do is protect individuals from government intrusion with respect to their privacy rights. This is the reverse of that, and which is why the government Is disclosing or making the decision to Disclose. Well, I would also submit though, your Honor, that what you are actually, uh, what would be occurring here is the prevention, uh, of information concerning the government from being, uh, made accessible to the public. And I think that is a fundamental Concerning government and concerning a government employee. Well, here we are dealing with your honor, public records dealing with public officials. And here well, They're public to, they're public. If they're exempt, then That's true. But here, your Honor, dealing with a public servant, a public servant, where there have been some real concerns raised with respect to, um, the nature of what the officer did in his official Capacity and a redefinition retrospectively of whether that's a public document or not. Yeah, I wanna get to that core of retrospective. And, but, uh, first I wanna get to the standing question 'cause I think this is fun. This is important. I, I do think under our position with respect to reverse 91 a challenges, there is no standing to raise the contract as a specific exemption under 91 a five. Setting that aside, I think that is a separate question from whether or not just as a party to the contract, right? Mr. Stone has the ability to seek an enforcement of the contract. Those are two separate questions. So I think at its core, again, what this case is about is assuming he has standing apart from nine one A to simply seek enforcement of the contract, what does the contract mean? That is, I think, really what this case is about. And I would like to get to Justice Sans Marconis, um, issue and question raised with respect to retroactivity, because I want to be clear that I don't think there's anything impermissibly retroactive about concluding that these documents should be released in this case. And I wanna start with just the plain text of the stat of the, I'm sorry, the contract, what the city and Mr. Stone actually agreed to in this case, which I think is critical with respect to the confidentiality provisions. There is not blanket confidentiality. It does not say that these records shall be confidential, confidential and perpetuity, uh, period. What it says is there is an expectation of confidentiality, but that key provision being, except to the extent required by an order of some other agency, court of competent jurisdiction or by law, there, there is an understanding among the parties that the law can change, that there could be a moment in the future in which the law notwithstanding this special expectation. So is this contract void then mutual mistake of fact? Do we dial it back to, I think you only would need to conclude that it is void as a matter of public policy. If you agree with Mr. Stone's interpretation that this, this Is a void because the parties didn't contemplate what they understood to be confidential was going to change. I I don't agree they, um, that may be true if they said there was categorical confidentiality, but that is not what the parties understood or agreed to under the terms of the contract. They specifically carved out exceptions and exception here, that that says explicitly except to the extent required by an order of some other agency court of confidential jurisdiction or by law. There is an understanding here that the law, uh, can change over time and the law would then could be subjected to the documents in question. So I reject the notion that what was expected by the party was categorical confidentiality. I do think the court would only need to address the issue of whether or not this contract is void against public policy. If it agrees with Mr. Stone's interpretation that it provides for categorical confidentiality. I don't think you necessarily need to get there. If you conclude, as I think would be appropriate, that there was a critical limitation in the confidentiality provisions here and that those limitations ultimately borne out when the law did change, when this court did overturn the femen decision in May of 2020. I think the same is true with respect to the purging provisions. The purging provisions of this contract do not say that these documents will be de destroyed, that they will never exist within the Claremont Police Department. No. What the contract says is that the city shall purge these documents from his personnel file. It does not say that they would be purged in other locations, that they would not be purged. Say for example, if the city of Claremont wanted to collect all of their IA documents so they could have a mechanism to determine how their I IA process has unfolded and has been running. Um, and so I also, uh, would encourage this court to reject the notion that this contract required wholesale destruction of the documents. I don't think that's what it says, but if this court does conclude that, um, there, there would need to be destruction here under the contract, that is where, again, your honors, we think that this would violate public policy. And we think the courts, um, are, are quite clear on that. When you look at other courts that have addressed these questions, and I won't kind of go through the litany of all of them, they're in our briefs, but why the courts have reached the, that those conclusions, um, is because, and agreements, confidentiality provisions cannot trump a public records law. Especially where the whole point here of this contract, I want to be very clear, was to limit public access. That was the goal. That was the desire. And this is an important principle that those provisions cannot be enforced. If you believe, if you interpret it as requiring wholesale confidentiality, um, and destruction, it can't be enforced because the public would've lost a remedy here under our public records law. The public was not a party to this contract. But if these provisions are to be enforced, the public would be subjected to a contract that they were not a part to, But what's going to be disclosed didn't reach a conclusion. So given the posture of this settlement agreement, you're getting sort of incomplete or one-sided disclosure because didn't go to trial. There wasn't a fine, there wasn't a final decision. So how do we deal with that? Sure. It's no more one-sided than with respect to documents and criminal cases that can be public when they are, say, placed on trial without a finding. Those documents are ly public because there is an intrinsic value in the public knowing how that proceeding was handled and managed and the decisions that were made by Relevant actions. Isn't there a, a sustained finding discipline is meted out. Yeah. Yes. In fact, I want to, I want to to to get to that. Certainly that is true with respect to number, uh, I files one through seven, they were all indicated, right? I don't think there's any dispute there with respect to eight through 14 minus, uh, 11 through 12, which we are not seeking. I want to be very clear about that. There still was a determination by the department that, um, there is a protective order. So I don't want to get into the contents, but there was a relevant finding there made by the city, uh, the city police department. But even the, even if they were not, that Was grieved. It was grieved for some of them. Yes. Yeah. Yes. No, I think I, I I think that's, that's accurate. But even the fact that this is non adjudicated, if we were to credit the conclusion by Mr. Stone, I still think that, uh, the information should be released similarly in the preventive case where that information was released, even though there was a non-sustained finding there. How, how should it affect our analysis, if at all, that, um, Mr. Stone was a candidate for public office and now holds public office? I, I, I think it only magnifies the public interest in disclosure here. I think there's a public interest regardless of those facts, given the fact that we're dealing with, uh, a police officer, um, on the job. Um, but I think that only enhances the public interest in disclosure. And I just want to close 'cause I know that my time is, is wa I'm sorry, your Honor. I just, this contract was signed after, after the IASS had been sent to police standards. So, and obviously police standards is not a party to this contract. And, and, and so that, I mean, do we have to think about the purging requirement and confidentiality to the extent it has any breadth and in light of the fact that the documents had already been, uh, the IAS had already been sent over pursuant to plea standard rules? The answer is no, you do not. Those documents are wholly separate. And in fact, they were created and disseminated outside of the employment human relations process. Those documents were disseminated for the police standards and training counsel to make an evaluation concerning whether or not there should be certification consequences, which are wholly unrelated to the separate employment function that exists with respect to the City of Claremont. So in our view, um, those documents, uh, clearly should be released for the reasons explained in our brief. So why isn't that sufficient? Well, 'cause it's, frankly, it's unclear to us from the documents what was transmitted to police standards in Training. That, that was my question. I mean, the record that I've seen doesn't appear to have the attachments. Yes. And I I think that's right. And in fact, your Honor, I, I don't, I don't even think we have it in the record, the March 27th, 2006 notice of termination for various reasons. So, um, I think any documents that were relay to PSDC we think should be released. But I do want to acknowledge that I think it is difficult for, for me to evaluate, based on the record, what was transmitted to PSDC. I just want to close here again, to be clear that nothing in this case implicates retroactivity. We are simply asking in a manner no different than any other right to no request, that the law in effect at the time this request is made and at and, uh, under the law that currently exists today, that that law be applied to documents that currently exist in the department's possession. The same was the case at Provenza with respect to documents there that were created before, uh, May, 2020. Same was the case with respect to the same, uh, uh, CCO newspaper decisions, uh, documents there that were ultimately released because of this court's decision. And here, the legislature hasn't done anything retrospectively. The statute is unchanged. And as this court concluded in matter of blazedale act, common law, appellate decisions are presumptively retroactive. Uh, and that that is the case here. But again, the contractual provisions here do not mandate purging and, uh, confidentiality as Mr. Snow suggests in our thank You attorney Binette. Attorney Dec Cato Be very brief. I, I think it's amazing, um, that the City of Claremont at that arbitration tell us that purging it from the personnel file, they were gonna create another file. You would think it would be part of the agreement. They, they're gonna purge it from the personnel file. Maybe the parties to that arbitration should have known that. Thank you. Thank you very much, counsel. Case courts in recess.