Laurie Ortolano v. City of Nashua et al.

STATEMENT OF FACTS: I. Nashua Performing Arts Center - The Beginning of a Public Project In February 2018, the Nashua Board of Aldermen (“BOA”) approved a bond resolution (R-18-001) to construct the Performing Arts Center in Downtown Nashua. See Vol. I1, Appx. at 93. The resolution covered the purchase, renovation, and construction of a new facility at 201 Main Street and the purchase of an existing building for renovations and construction. Additionally, the resolution included the condition that $4M in private donations must be raised within two years. See Vol. II Appx at 93. II. Amendments to the Bond Resolutions and the Acceptance of Federal Money – the Undisclosed Shift to a Private Project Recognizing insufficient private donor participation by November 2018, the bond resolution was amended to 1): accept funds through a New Markets Tax Credit (“NMTC”) federal program; 2): reduce the $4M private donation requirement (See R-18-092 at Vol. I, Appx. at 137); 3): extend the time deadline for both obtaining NMTC funds and private donations. At this public hearing for the first amended bond resolution, R-18-092, the Mayor stated that the project would be a non-profit entity. Complaint ¶ 12, Vol I, Appx. at 6. City officials (the hired expert consultants did not attend this meeting1) did not disclose in this meeting that they were entering a public-private partnership with the government in which a private-profit corporation would construct and own the Arts Center. See Vol. III Appx. at 174, Meeting Minutes BOA public hearing. 1 Attorney Kaminski, Drummond Woodsum and Niel Cannan were contracted by the City to assist with obtaining the NMTC funding and creating and reviewing documents to enact the transaction. See Vol. II, Appx. at 23, 27 for contracts.

“The NMTC Program incentivizes community development and economic growth through the use of tax credits that attract private investment in distressed communities.” See Vol. II, Appx. at 52, footnote. On February 6, 2020, the BOA held a hearing on a second amendment to R-18-001 to expand the time required to obtain the money to the end of 2020. See R-20-001, Vol. III, Appx. at 59. The City required another bond for $5.5M to meet increases in construction costs; In October 2020, R-20-071 was approved by the BOA for $5.5 M. See Vol. III, Appx. at 61. On December 17, 20202, the City closed the NMTC transaction and raised, via private donations, an additional $1.5M to meet the $4M requirement specified in the bond resolution. At this time, the costs included 21M in bonds sold, plus $4M in private donations and NMTC funding of $9, 550, 000, guaranteed by the City. Complaint ¶ 8, Vol. I, Appx. at 5. III. The Three Corporations required to Execute the NMTC Transaction The Formation of Two RSA162-G non-profit, body politic Corporations On May 20, 2019, the BOA held a public hearing on R-19-136 (See Vol. I, Appx. at 147) to form two non-profit body politic corporations under RSA Ch. 292:1 and RSA162-G, Acquisition, Development and Disposal of Industrial Land and Facilities. The Board of Director members were approved by the BOA within this legislation. See Vol. I Appx. at 141 Omnibus Resolution, R-20-094, which references the 201 Corps. by name. In October 2020, 201 Main Street Real Estate Corp. (“201 Main St. RE”) and 201 Main Street Financing Corp (collectively referred to as “201 Corps”), were registered with the N.H. Secretary of State with “all powers granted by RSA 162-G. See Vol. III Appx. at 146, 154. 2 The Omnibus Resolution R-20-094 specified that the NMTC transaction would close “on or before December 15, 2020”. See Vol. I, Appx. at 141. The actual closing date was December 17, 2020. The Court will find a number of contracts and agreements in the appendices with the December 17, 2020 date.

Resolution R-19-136, specifically references RSA 162-G:15, which states: Any voluntary, nonprofit corporation or association formed under RSA 292:1 for the purpose of taking advantage of this chapter shall be a body politic and corporate constituting a public corporation. The governmental unit may loan money to such corporation or association or an authority established under RSA 162-G:15-a, with proper security. Such corporation or association shall have all the authority and powers granted to a governmental unit by this chapter to act in behalf of the governmental unit except the powers to execute trust indentures and issue bonds. Sums of money may be advanced to such corporation or association or an authority established under RSA 162-G:15-a by the governmental unit to meet operating and maintenance costs and shall be repaid by it, if the governmental unit so requires at the time of making such advances. The two non-public body politic corporations were created to serve as the [1] 201 Main Street Financing Corp. as the Senior Leverage Lender [2] 201 Main St. RE as the Qualified Area Low Income Community Business (“QALICB”) See Vol. II at Appx. at 144, Deal Diagram, red boxes. The QALICB entity would control the construction of the project, including construction and financial management and ownership of the building through the seven-year tax credit payout period. Complaint ¶¶ 22, 23, Vol. III, Appx. at 81. The Corporations were serving an essential governmental function as outlined in RSA 162-G:2. The 201 Main St. RE Bylaws incorporate the essential government function language in the Recitals Section [B], writing, … “voluntary nonprofit corporation and the lease of such facility is a public purpose and shall be regarded as preforming [sic] an essential governmental function.” See Vol. I Appx. at 127, Plf, Obj. to Motion to Dismiss. The 201 Corps. by-laws, approved on December 8, 2020, were written as if the Corporations were private entities rather than public. This matter was raised by the Plaintiff in 2021 and was a matter before the Court in a December 2023/April 2024 Trial. In September 2023, the BOA and, subsequently, the 201 Corps. approved corrected bylaws to comply with RSA 91-A. Complaint ¶ 132, Vol. I, Appx. at 45.

The Formation of NPAC Corp, a private, for-profit corporation In early November 2020, the City leaders, Mascoma Bank3, and city-hired consultants determined a third private corporation had to be formed to execute this NMTC transaction. The NPAC Corp. was registered with the NH Secretary of State on November 9, 20204. It has a principal office address as Nashua City Hall, “229 Main Street, Nashua, NH 03060” and the mailing address for City Hall as “P.O. Box 2019, Nashua, NH, 03061 - 2019, USA (Nashua City Hall)” The Principal purpose in the Business Formation paperwork on the NH Secretary of State website is “53 - Real Estate and Rental and Leasing – 390 Other Activities Related to Real Estate.” See Vol. I Appx. at 69. But NPAC Corp did more than just Real Estate and Rental and Leasing. NPAC Corp. became the owner of the building and managed the complete construction of the facility funded by taxpayers. Its sole customer is the City of Nashua as Master Tenant. Complaint ¶ 59, Vol I Appx. at 21. On November 24, 2020, the BOA held a special meeting to adopt the Omnibus Resolution R-20-094. The hired expert consultants never disclosed that NPAC Corp would be a for-profit private corporation. Attorney Kaminski disclosed that the three corporations were affiliates of the City. Complaint ¶ 21 and Vol. III Appx. at 81. Attorney Kaminski explained: We had to create Impact Corp. [sic] which is a New Hampshire Business Corporation to serve as the location for the business that’s going to be financed with the New Market Tax Credit money. Impact Corp.’s [sic] business is leasing property. It is in the business of developing the site at 201 Main Street and leasing it to the City. So, the facility will be constructed and equipped under the plans that the City has evolved over the last several years. The City will then have a 25-year lease of the facility and will have a 5-year renewal option on the facility. The purpose for this lease is to demonstrate that the Impact Corp.[sic] has an ongoing business. We can’t simply have a business that lasts for 7 3 Mascoma Bank serves as the Community Development Entity to receive these federal tax credits. 4 Mr. Lannan’s affidavit in support of McLanes Motion to Dismiss given the incorrect date of December 9, 2020. years and qualify for the New Market Tax Credits, we have to have a business that is a long-term operational potential in front of it. So, we demonstrate that Impact Corp. [sic] 5has a business going on and that enables us to qualify for the New Market Tax Credits. Complaint ¶ 22 Vol. I, Appx. at 9, and See Vol. III Appx. at 81. NPAC Corps. only business revenue source is from the City of Nashua. The Master Tenant agreement was determined based on the City’s need to cover the costs of the interest and principal payment for the $9.5M bank loans and the $7.1M City loan6, and other expenses. The City pays supplemental rent to NPAC Corp. in the exact amount of the property taxes paid by NPAC Corp. to the City. The City makes a lease payment for equipment to 201 Main St. RE. The City reimburses 201 Main Street Financing Corp. for the interest payment for the $7.1M City Loan given by the City to 201 Main Street Financing Corp. See Vol. III, Appx. at 183, “How the money moves”. City consultant Niel Cannon stated that NMTC transactions are not often done with municipalities. Complaint ¶ 26, Vol. I Appx. at 10, and Vol. III, Appx. at 87. At this meeting, a new deal diagram was shown to the BOA, which added a third corporation, NPAC Corp., and labeled it as the QALICB. The City Economic Development Director and project leader, Tim Cummings, described this change as follows: The structure before you is pretty simple, pretty standard deal structure; ultimately, however, every New Market Tax Credit transaction is unique and may require certain nuances tweaks. I am going to pull up a similar type diagram that was just shown but it’s going to have a little nuance to it to make sure we are very clear on the legal aspects of this transaction. For almost three years, City disclosures presented the NMTC deal structure as publicly funded and controlled. On November 24, 2020, twenty-five pieces of legislation were knit 5 The flow of Funds diagram to follow the rent, supplemental rent lease, and loan payment was not available to the public at the time of the closing. 6 $7.1M in bond proceeds were converted into a Loan by the City to lend to 201 Main St. Financing Corp. to serve as the Senior Leverage Lender in the NMTC Transaction. together in an Omnibus Resolution, with the “approvals” to be reviewed for the first time. Without public disclosure, NPAC Corp. had become the “QALICB”; however, within the written legislation, NPAC Corp. was not identified by name but referred to as “a controlled affiliate thereof.” This is noteworthy because NPAC was NH registered weeks earlier; the 201 Corps. were referenced by name in the Resolution. (See Vol. I Appx. at 140). Public money and public records were shifted to the now private corporation/entities. Mascoma Bank required the City of Nashua to pay the insurance for NPAC Corp.’s mortgage on the building as the owner of the facility, not the renter, as well as requiring the City to pay all the liability insurance for the construction of the facility. Yet, NPAC Corp. owns the facility. See Vol. II Appx. at 34-44. IV. Right to Know Requests to NPAC Corp. and City of Nashua – Requests Ignored The Plaintiff cited the City of Nashua and NPAC Corp. with twelve records violations in the Petition. The plaintiff submitted a records request to City Officials on November 29, 2021 for budgets that were reviewed. On August 11, 2022, Plaintiff emailed Dir. Cummings and City officials for Construction project schedules, soft costs and all financial records. The plaintiff asked about the public records disclosure of 201 Corps. The plaintiff requested, through the Board of Directors President, all emails between Corporations and the City, which was denied. Complaint ¶ 89, Vol. I, Appx. at 29. The Petition was brought forward to determine if NPAC Corp is a public entity that is holding public records required for disclosure under RSA 91-A and Part 1 Article 8 of the NH Constitution.

STATEMENT OF THE CASE Not satisfied with the responses received from Director Cummings, City Officials, and Mr. Lannan as President of NPAC Corp, the Plaintiff filed the Right-to-Know petition in Hillsborough Superior Court South, Petition For Access To Public Records Pursuant To RSA 91-A:7 (June 8, 2023). See Vol. 1, Appx. at 3 (referred to as “Complaint”) Plaintiff alleged that City and NPAC largely ignored her requests for records in the possession of the City and/or NPAC Corp. The City provided no reason for withholding. NPAC Corp. noted that their meetings were public and that “their understanding” or “my understanding” was that NPAC Corp. was a for-profit not subject to RSA 91-A. NPAC Corp. provided no definitive legal response to justify this. Complaint ¶¶ 35, 36, 38, 43, 50, and 53, 96. Plaintiff’s petition sought documents, a record retention schedule for NPAC Corp. documents, costs, enjoin future violations, remedial training, and costs. See Vol. I, Appx. at 45. NPAC and the City denied the RTK violations, claiming that NPAC Corp was not a public entity. NPAC Corp claimed that the 2008 legislative overhaul of the RTK rules specifically defined public bodies/agencies, requiring them to be 501(C)3 Corporations, not-for-profit corporations. NPAC further argued that the legislature did not intend NH-registered entities such as NPAC to be considered “public” for the purpose of RTK compliance. See Vol. I, Appx. at 58, 59. The NPAC Corp. also claimed that NPAC Corp. was not providing an essential governmental function, as it is not a public entity. See Vol. I, Appx. at 60. On September 11, 2023, the Court held a hearing on the merits of the Petition. (Transcript provided to the Court) The Plaintiff explained the violations based on documented evidence in her possession. She went on to detail the intertwined business relationship between the City and the NPAC Corporation and 201 Corporations.

On December 20, 2023, the Court issued an order on Pending Motions (See Vol. II, Appx. at 85) writing: [1] In response, the plaintiff does not argue that NPAC fits the statutory definition of a "public agency" or a "public body." Rather, she contends that "the fundamental issue" in this matter is whether NPAC "was performing an essential governmental function that requires disclosure of certain public records. [2] The legislature provided specific definitions for "public bodies" and "public agencies" when it overhauled the Right-to-Know Law in 2008. NPAC therefore maintains that the Court need not analyze whether NPAC is subject to RSA chapter 91-A under the pre-2008 line of cases. [3] Citing to the interpretive canon expressio unius est exclusio alterius, NPAC contends that the legislature must have intended to exclude all other types of government-affiliated corporations--including for-profit corporations such as itself from the requirements of Right-to-Know Law. See Appeal of Cover, 168 N.H. 614, 622 (2016) (explaining that expressio unius canon means "[normally the expression of one thing in a statute implies the exclusion of another"). [4] It appears that the crux of the complaint is directed at the disclosure of NPAC's records, and there does not seem to be any independent claim lodged against the City for specific records belonging to the City. [5] Permitted the Plaintiff to amend the complaint as she had requested to do so. On January 2, 2024, the City asked for partial reconsideration (See Vol. III, Appx. at 19) based on a footnote in the court order, in which it noted the plaintiff’s concerns: plaintiff's concerns concerning the legality of this ownership structure are not without merit. (See, e.g., Pl.'s Obj. M41 (arguing that "NPAC Corp should be changed to an RSA 162-G [non-profit] Corporation".) Specifically, it appears that NPAC-a self-described "profit corporation"-is wholly-owned by another corporation (201 Main) that is wholly-owned by the City. In other words, the City now indirectly owns NPAC, which is a for-profit corporation. However, the New Hampshire Constitution specifically prohibits a "town" from owning, either directly or indirectly, the stock of a private, for-profit corporation. See N.H. CONST. pt. II, art. 5 (prohibiting any legislation that allows a "town to loan or give its money or credit directly or indirectly for the benefit of any corporation having for its object a dividend of profits or in any way aid the same by taking its stock or bonds" (emphasis added)); see also Leavitt v. N. Hampton, 98 N.H. 193, 198 (1953) On January 9, 2024, the Plaintiff filed a Motion for Reconsideration which addressed the fact that the government function test was not abandoned by the Court in Martin v City of Rochester 239 A.3d. 1002 (N.H. 2020) and that the lower court misapplied Maxim Expressio Unius est Exclusio Alterius. NPAC Boards are advisory Committees to the City, and NPAC is a public body and public agency affiliated with the City. See Vol. III Appx. at 4. On January 11, 2024, Plaintiff filed an objection to the City's Motion to Reconsider of the Court footnote. On January 19, 2024, NPAC Corp. files an Objection to the Plaintiff’s Motion to Reconsider the Dismissal of the NPAC Petition. See Vol. III, Appx. at 14. On January 29, 2024, Plaintiff sought legal advice and had an attorney file a limited appearance to assist with the amended and numerous filings. Through Counsel, Plaintiff filed a Memorandum of Law replying to NPAC Corps Objection to Motion to Reconsider, a Motion to Amend, and a proposed amended complaint. See Vol. III, Appx. at 39, 41, 47. On February 29, 2024, the Court issued two orders denying the Motions for Reconsideration filed by the City of Nashua and the Plaintiff’s Motion for Reconsideration. See Vol. III, Appx. at 23, 29. On March 6, 2024, the Court issued an order denying the Plaintiff’s Motion to Amend. See Vol. III, Appx. at 57. SUMMARY OF ARGUMENT The Plaintiff has shown that the City of Nashua had records in its possession that related to the construction and financing of the Arts Center under the ownership and control of NPAC Corp. and should disclose those records. NPAC Corp. and the 201 Corps. affiliated relationship with the City and the flow of over $21M in taxpayer money from non-profit public corporations to a private for-profit corporation warranted Court review prior to dismissal. Formed under RSA 162-G and RSA 292:1, the 201 Corps, controlled by the City, were statutorily bound, and City legislated to perform an essential government function, and 201 Main St. RE was the 100% shareholder of the NPAC Corp., the private, for-profit corporation. This created a unique and complex relationship between public and private corporations, with the flow of public money through these corporations ultimately ending in NPAC Corps. custody. The trial court erred because it could not determine NPAC Corp’s public nature and the essential governmental function it performed in managing the finances (public money), constructing, and ownership of the Nashua Arts Center at the Motion to Dismiss stage. Additionally, the Plaintiff presented evidence that the Court’s reliance of expressio unius est exclusio alterius to dismiss the Petition is misapplied as it would lead to an absurd result. The Plaintiff’s amended complaint, while the Court denied, should have been accepted as a “plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint”, Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990). ARGUMENT I. Did the trial court err by limiting its analysis for dismissal to RSA 91- A:1-a VI(e) when the court ruled that NPAC Corp. was not a public entity subject to RSA 91-A, thereby effectively and impermissibly ignoring the other definitions of public body and public agency set forth in RSA91-A:1-a, V, and VI and dismissing the Plaintiff’s claims of RTK violations for records from the City of Nashua and NPAC Corp? a. Plaintiff’s Petition has claims for Relief under RSA 91-A:7 for records The Plaintiff filed a claim under RSA 91-A:7 seeking a remedy for records withheld as well as questions of law regarding the structure of the NPAC Corp. The Plaintiff provided an explanation of the NMTC program and factual exhibits referencing the deal structure and the affiliated relationship between the NPAC Corp., 201 Corps., and the City. The Plaintiff identified records she believed in the possession of the City that were NPAC construction records and financial records. Complaint ¶¶ 35, 36, 38, 43, 50, 53, 96. Vol. I, Appx. 1-48. “In reviewing a trial court's grant of a motion to dismiss, we consider whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 673, 156 A.3d 147 (2017). We assume the plaintiff's pleadings to be true and construe all reasonable inferences in the light most favorable to her. Id. However, we need not assume the truth of statements in the plaintiff's pleadings that are merely conclusions of law. Id. We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id. In conducting this inquiry, we may also consider documents attached to the plaintiff's pleadings, documents the authenticity of which are not disputed by the parties, official public records, or documents sufficiently referred to in the complaint.” Automated Transactions v. Am. Bankers Ass'n, 172 N.H. 528, 532, 216 A.3d 71 (2019). Cited in, Gascard v. Hall, 293 A.3d 472 (N.H. 2022). The Plaintiff had not uploaded her exhibits before the Court dismissed her Petition, but the following City records are authenticated records of the City reference in the Complaint, Exhibit List. Exhibits 1-9 and Exhibit 35-41 are within the Appendices, Vol. I Appx. at 47, 48. 7 In the Motion to Dismiss, NPAC Corp. claimed that the 2008 overhaul of the Right-to-Know Law, in which RSA 91-A:1-a VI (e) added language identifying public bodies as 7 The Plaintiff has included Resolutions, City meeting minutes and NMTC contract and agreements. These records meet the Superior Court rules of Evidence, 901. However, the Plaintiff has found numerous “public” records posted on the City website or held in the Clerk office are unsigned. The City has no policy requiring signatures to create and authentic, certified record. corporations formed as 501(c) (3) entities, eliminated the public body/agency argument of this unique public-private corporate partnership required to accept the NMTC funding. In the City’s Motion to Dismiss, the City claimed, and the Court agreed, that the Plaintiff failed to describe any documents in the possession of the City that were not exempt under RSA 91-A:4 that the City did not make available. See Vol. 1, Appx. at 116; See Vol. I, Appx. at 90, December 20, 2023, Court Order. However, Plaintiff made numerous information requests to officials for PAC records, contracts, finances, construction budgets, change orders, soft costs bids, construction financial updates, and schedule deadlines. No responses were received. Complaint ¶¶ 35, 36, 38, 43, 50, 53, 96, Vol. I, Appx 1-45. The Petition meets the threshold requirements noted in state case law, and [Plaintiff] must present a plausible theory of relevancy and materiality sufficient to justify the review of other documents. State v Graham, 142 N.H. 357, 363 (1997). The Plaintiff presented violations under RSA 91-A with specific claims. b. Was NPAC Corp. subject to RSA 91-A as the Corporation received approximately $21M in bond proceeds, a $7.1M City Loan, City guarantees to back a Bank investment of $9, 550, 000 and pays yearly rent of $500, 000? Twenty-one million dollars in taxpayer bond proceeds flowed through two non-profit City-managed/controlled Corporations (the 201 Corps) that then sent the money to the for-profit NPAC Corp. NPAC Corp is the wholly owned subsidiary of 201 Main St. RE, both corporations with identical Boards of Directors. See Vol. III, Appx. at 149 and 164, Resolutions of 201 Main St. RE and NPAC Corp. A municipality is not a profit-making venture; therefore, diverting public money to a private corporation performing the City's duties without public oversight violates the RSA 91-A, N.H. Constitution, pt. 1 art. 8 and pts. II art. 5. See Vol. II, Appx. at 86. Court order on Motion to Dismiss, footnote #1. While the constitutional issues have not been briefed (but were identified in the Complaint), they should not be put aside and ignored in this matter. To construct the Nashua Art Center, taxpayers funded $21M in bonds and raised $1.5M through private donations. NPAC Corp. received a $9, 550, 000 Loan from Mascoma Bank, which the City guaranteed and is paying NPAC Corps. mortgage to MCD, a Mascoma Bank subsidiary, through a rental agreement. See Vol. I Appx. at 52 and 76. NPAC Corp. received an NMTC Equity investment of $2, 889, 900 as a tax incentive. The City made a $7, 108, 810 Loan to 201 Main Street Financing Corp, which ultimately went to NPAC Investment Fund, LLC. See Vol. III, Appx. at 128, Flow of Funds; See Vol. III Appx. at 149-153, Resolution of 201 Main St. RE. In Professional Firefighters of New Hampshire v. Local Government Center, 159 N.H. 699, 992 A.2d 582 (2010), the Court stated; Whether an entity performs an essential governmental function is not the exclusive method for determining whether it is subject to the Right-to-Know Law. Indeed, we have emphasized that: Any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done. The unavoidable fact is that each new arrangement must be examined anew and in its own context. Bradbury v. Shaw, 116 NH 388 - NH: Supreme Court 1976. “In the end, we examine the structure and function of an entity to assess the entity's relationship with government, and determine whether that entity is conducting the public's business. See RSA 91-A:1 (purpose of Right-to-Know Law is to facilitate openness in the conduct of public business).” c. What is NPAC Corp? – A for-profit private, a non-profit, public, or a hybrid Corporation? The trial court did not undertake a comprehensive review and analysis of NPAC Corp’s corporate and ownership structure and its operational scheme and activities. The public history of the Nashua Arts Center began as a fully public venture owned and operated by the City, bond resolution R-18-001. See Vol. II, Appx. at 93. Within a year after the City amended the Bond Resolution to include NMTC equity, the City formed two non-profit public corporations under RSA 162-G and RSA 292:1 to accommodate the federal requirements of accepting NMTC financing. The City identified these companies as public entities that would perform essential government functions as defined by statute. Almost three years into the process and within 6 weeks before signing the NMTC contracts and agreements, NPAC Corp was formed, taking on the exact function of 201 Main St. RE, but NPAC Corp. was registered as a private for-profit with no requirements to disclose records. In the complex structure of the NMTC deal, the trial court ruled that the defendants must provide answers. Complaint Court Note, Vol. I Appx. at 3. The dismissal was premature. The Court’s reliance on the 2008 legislative overhaul of RSA 91-A and added language to include 501(c)3 as public bodies/agencies and belief that the Court had eliminated the essential government function test was misapplied and too narrow to account for this unique public-private partnership where an approximately $2.5 million dollar NMTC equity allocation removed public accountability for this project that required $21M in taxpayer-funded bond proceeds, other expenses and loan guarantees of $9.55M. The legislature’s overhaul intent was not to narrow the review of public-private partnerships; Attorney Braun will address this further in his amicus. Although “discovery may be greatly restricted in FOIA cases, ” Heily v. U.S. Dep’t of Commerce, 69 Fed. Appx. 171, 174 (4th Cir. 2003), courts have “stressed the importance of permitting FOIA plaintiffs to take depositions... where the relevant factors are in the control” of the other party. ABC, Inc. v. USIA, 599 F. Supp. 765, 768 (D.D.C. 1984). This unique financing structure, along with the affiliated relationship between the City and the Corporations, warrants discovery as well as answers.

There exists a plausible advisory committee argument for NPAC Corp as there is evidence that the City was actively involved with the Construction and spending for the PAC as Director Cummings and Ms. DeRoche attended many of these meetings representing the interest of the City. Complaint ¶¶ 90, 132, Vol. I, Appx. at 31, 45. The City hired consultants, and closing documents reference that the three Corporations, NPAC Corp. and the 201 Corps., were affiliates of the City of Nashua. Complaint ¶ 21, Vol. III Appx. at 74. The term “affiliate” is not included in the public agency or public body definition of RSA 91-A:1-a. Definition: V. "Public agency" means any agency, authority, department, or office of the state or of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision. VI (d) Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto. Without fully understanding the Defendant’s definition of “affiliate” within the Omnibus Resolution language, it is reasonable that NPAC Corp. falls under an advisory committee or a subordinate body. The 201 Main Street Corps were formed under RSA 162-G and RSA 292:1 as Corporations under the City of Nashua as the governmental unit. NPAC Corp operates under the parent control of 201 Main St. RE, which is the 100% shareholder of NPAC Corp. It is accountable to 201Main St. RE. with the specific management function of owning and renting the Arts Center exclusively to the City of Nashua. Vol. III, Appx. at 11, Plf, Motion to Reconsider Dismissal. II. Eliminating the Essential Governmental Function Test prevents the proper analysis of the purpose of NPAC Corp. NPAC Corp. argued in its Motion to Dismiss that: (Vol. I, Appx. at 60.)

While each case presents unique facts, in each of its decisions, the court found at least one of the following to be essential: its governing structure and operations are comprised and controlled, at least in part, by governmental agents; and (2) the entity was formed for and is performing an essential government function. Neither is true for NPAC. The Court should have permitted the Plaintiff to defend that NPAC Corp. is, in part, controlled by governmental agents. As stated above, 201 Main St. RE is the 100% shareholder of NPAC Corp. 201 Main St. RE is “owned”, City-managed/controlled by the City of Nashua as it is an RSA 162-G entity formed to perform an essential government function. The Board of Directors for both NPAC Corp. and 201 Main St. RE are the same directors.8 Public records should be obtainable within these entities. Additionally, NPAC Corp. was formed to perform the exact same function as 201 Main St. RE Corp in serving as the Qualified Area Low-Income Community Business. 201 Main St. RE was performing an essential government function as prescribed by RSA 162-G:2. The Court, in its dismissal, relied on Martin v. City of Rochester, 239 A.3d 1002 (N.H. 2020), which used the statutory definition to determine a “public body” for a technical review group. But Martin falls short in that it does not involve the interpretation of RSA 91-A:1-a VI(e): Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax-exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code. To the extent the Court does rely on Martin, the Supreme Court ruling in Martin did not eliminate the courts’ use of the governmental functions test to determine if an entity is subject to 8 In the Plaintiff’s 226-2022-cv-00309 Trial (reference in Vol. I, Appx. at 50), the Plaintiff presented evidence of the City’s management/control/ownership of the 201 Corps. [1]Board of Directors members and changes are approved by the BOA; [2] the bylaws and changes to the bylaws require approval of the BOA [3] the 201 Corps business address and contact is City Hall and Director Cummings, [4] the 201 Corps have the same EIN number as the City [5] the City is responsible for federal and state tax filings for the 201 Corps [5] the 201 Corps. primary revenue source is from the City of Nashua, and [6] McLane Middleton, representing the 201 Corp in the “00309” lawsuit, was paid by the City.

RSA 91-A. In Martin, the Supreme Court cited Bradbury, noting that the Trial Court decision in Bradbury regarding the Mayor’s industrial committee establishment brought it within the scope of Right-to-Know. The Court in Martin did not rule or hold that the pre-2008 Bradbury review criteria employed in 1976 no longer applied. In addition, the test employed in Martin, Bradbury, and the other pre-2008 cases cited in the Trial Court’s decision (pg. 4) all essentially use the government function test even if all the cases (such as Martin and Bradbury) do not use that term specifically. The Supreme Court wrote in Martin: We disagree with the plaintiff's characterization of the committee in Bradbury. The Bradbury committee considered matters of policy, including the extension of city water and sewer lines and the construction of new streets, and advised the mayor — the committee's appointing authority — on the sale of city-owned land. Bradbury, 116 N.H. at 389-90, 360 A.2d 123. Indeed, the mayor submitted one proposal for the sale of city-owned land to the city council with a statement that the committee had approved it. Id. at 389, 360 A.2d 123. On that record, we concluded that "the trial court properly found that the committee's involvement in governmental programs and decisions brought it within the scope of the right-to-know law." Id. at 390, 360 A.2d 123. By contrast, the TRG, as the trial court explained, "is not constituted to advise or make recommendations concerning formulation of public policy or legislation." Rather, the TRG members consider land use applications and apprise each applicant of the concerns of particular municipal departments that are represented by members of the TRG. This process is meant to assist the applicants in preparing their applications for presentation to the planning board. The TRG simply is not involved in "governmental programs and decisions" as was the committee in Bradbury. Id. Perhaps unintended, this Trial Court’s order effectively overrules the pre-2008 line of Supreme Court cases9 and Martin. The Court should reconsider the dismissal of this case for this reason 9 Bradbury v. Shaw, 116 N.H. 388, 389 (1976) – determining if the Rochester’s Mayor’s industrial advisory committee is subject to the Right-to-Know Law. Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 547 (1997) - seeking documents from two housing developments under the control of the NH Housing Financing Authority. Prof'l Firefighters of N.H. v. HealthTrust, 151 N.H. 501 (2004) – HealthTrust is a nonprofit corporation to provide general health insurance benefits for public employees under a pooled risk management program. Prof’l Fire fighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 704 (2010) - The Court was analyzing if two subsidiaries of Local Government Center Inc. (LGC) (the New Hampshire Municipal Association) were subject to the Right-to-Know Law.

The 201 Corps. created by the BOA were formed under RSA 162-G and RSA Ch. 292:1, Corporations, Associations, And Proprietors Of Common Lands and RSA 162-G:2 Declaration of Need and Purpose states: …It is the purpose of this chapter to authorize the cities and towns of the state to foster and encourage the development of business and industrial facilities within or without their respective boundaries, acting directly or through a business and industrial development authority or a voluntary, nonprofit corporation, alone or in concert with one or more other governmental units, by acquiring, developing, expanding, leasing, and disposing of such facilities, where such development is more appropriate under this chapter than under RSA 162-A, as determined by the governing body. It is further declared that the acquisition of title to such facilities, either directly or through a business and industrial development authority or a voluntary, nonprofit corporation, and the lease or sale of such facilities as provided hereunder is a public purpose and shall be regarded as performing an essential governmental function in carrying out the provisions of this chapter. (emphasis added) 162-G:15 Voluntary Nonprofit Corporations; Authorities: Any voluntary, nonprofit corporation or association formed under RSA 292:1 for the purpose of taking advantage of this chapter shall be a body politic and corporate constituting a public corporation. The governmental unit may loan money to such corporation or association or an authority established under RSA 162-G:15-a, with proper security. Such corporation or association shall have all the authority and powers granted to a governmental unit by this chapter to act in behalf of the governmental unit except the powers to execute trust indentures and issue bonds… 292:1 Incorporators; Purposes: Five or more persons of lawful age may associate together by articles of agreement to form a corporation, for any of the following purposes: II. The establishment and maintenance of literary and scientific institutions, libraries, lyceums and musical, agricultural, literary, or scientific associations, the promotion of education and the arts and sciences by any other means and for mental improvement. XII. To provide industrial, commercial, manufacturing and warehouse facilities for the purpose of developing the growth and prosperity of the state, counties, cities, towns and villages. XV. Any other purpose for which an organization may be exempt from federal taxation under section 501 of the Internal Revenue Code of 1954, and any amendments thereto. Here we have two statutory constructions used to form the 201 Corps: RSA 162-G & RSA 162-G:15 and RSA 292:1. These statutes are consistent with each other as RSA 162-G:15 references RSA 292:1. The Supreme Court has ruled that two statutes which deal with similar subject matter, will be construed so that they do not contradict each other. Nault v. N & L DEV. CO., 146 N.H. 35, 767 A.2d 406 (2001). The City relied heavily on the language of essential governmental functions and body politics, as well as public corporations, to create these two corporations. The 201 Corps were created by the City of Nashua as a governmental entity and are subject to the RSA 91-A. See Vol. I, Appx. at 146. If the Court has eliminated the essential governmental test, how do we interpret these corporations formed under the essential governmental function statute of RSA 162-G and their relationship to for-profit corporations? While the Defendants have argued that the 2008 revision to RSA 91-A specifies 501(c)(3) Corporations wipes out the Court’s review of the unique NMTC structure as it is not a 501(c)(3), there are many 501 corporation structures that could involve disputes on public records based on their governmental function. Information from the Senate Journal, May 2008, “place 501(c)(3) corporations that have their sole member either the State of New Hampshire or another political subdivision under the auspices of the Right-to-Know Law.” This bill was changed for one such entity identified at the time, a senior residential facility in Sullivan County. However, 501(c)(26-27) covers state-sponsored health coverage and workers’ compensation organizations that could be subject to open records challenges. These unique public-privates corporate structures should be evaluated by the Court “anew and in its own context” as outlined in Professional Firefighters of New Hampshire v. Local Government Center, 159 N.H. 699, 992 A.2d 582 (2010), In the November 24, 2020 Special BOA meeting, the City transferred the QALICB function from 201 Main St.RE to NPAC Corp, which, as a controlled affiliate, now performed the essential governmental function. NPAC Corp.'s claim that it is not performing an essential governmental function should not stand. 10 NPAC Corp cannot simply magically erase the governmental function aspect when it is performing the identical purpose of the public nonprofit 201 Main St. RE Corp and relying on $21M in taxpayer money. At this meeting, the Board approved the Omnibus Resolution. In reviewing the minutes, neither City-hired consulting, Attorney Kaminski, nor Niel Cannon disclosed that NPAC Corp was a for-profit private company. Attorney Leonard in her presentation of the last approval 9, (Vol. III, Appx. at 84), mentios in passing, that the “real estate will be transferred to a for profit corporation, impact” [sic]. The significance of this change to control of the money, ownership of the building and public records is not discussed or disclosed. The agenda posted on the City website contained a copy of the resolution and a Deal and Flow of Fund Diagram depicting that 201 Main St. RE is the owner/QALICB in the NMTC transaction. See Vol. I Appx. 144. However, during the meeting, a new deal diagram was presented by City leaders that added a third corporation, NPAC Corp as the owner/QALICB. See Vol. III Appx. at 96. Numerous approvals in the Resolution [1] authorized the City to assign all contracts associated with the PAC to 201 Main St. RE or a controlled affiliate thereof [2] authorize payment of an amount not to exceed $14, 000, 000 to 201 Main St. RE or a controlled affiliate thereof [3] authorized a loan to 201 Main Street Financing Corp. in an amount not to exceed $8, 000, 000, to be documented consistent with the requirements of the NMTC program. See Vol. I, Appx. at 142, approval 4; See Vol. III, Appx at 83, 84. This new deal diagram and presentation were never placed in the certified records of the City minutes. There was no City public disclosure that the switch to a private for-profit corporation eliminated the essential governmental function of the corporation or the elimination of the 10 Th Executive Summary Term Sheet, dated October 14, 2020, given to the BOA at the November 24, 2020 Omnibus meeting still identified the QALICB as 201 Main Street Real Estate Corp. See Vol. III, Appx. at 97. public/agency in creating this for-profit corporation. The trial court should address the public records component of this structure and rule on the RSA 91-A Violations. The 2015 Attorney General’s Memorandum On New Hampshire’s Right-to-Know Law, RSA Chapter 91-A, in addressing Bodies and Agencies subject to the Right-to-Know law, it notes: 6. Certain bodies corporate and politic created by statute that have a distinct legal existence and are not a department of the executive branch of state government. E.g., RSA 162-A:3 (Business Finance Authority); RSA chapter 204-C (Housing Finance Authority); 2 RSA chapter 35-A (Municipal Bond Bank); and RSA chapter 12-G (Pease Development Authority). Some of the statutes creating these entities expressly state whether the Right-to–Know law applies, but others are silent on this point. Without express statutory language, applicability of the Right-to-Know law will depend on the nature and extent of the governmental functions the entity performs. See generally Professional Firefighters of N.H. v. Healthtrust, Inc., 151 N.H. 501 (2004); Northern New Hampshire Lumber Co. v. New Hampshire Water Resources Board, 56 F. Supp. 177, 180 (D.N.H. 1944). With footnote 2 stating: 2 The New Hampshire Housing Finance Authority is subject to the Right-to-Know law. While the Authority is a body politic and corporate having a distinct legal existence separate from the executive branch of the State and not constituting a department of the executive branch of state government and many of its day-to-day operations function independently of the State, the Authority performs the essential government function of providing safe and affordable housing to the elderly and low-income residents of the State. Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540 (1997). The recently updated 2024 Attorney General’s Memorandum on the Right-to-Know law, holds similar language. 5. Certain bodies corporate and politic created by statute that have a distinct legal existence and are not a department of the executive branch of State government. RSA 91-A:l-a, VI(e). a) Examples include Business Finance Authority (RSA 162-A:3), Housing Finance Authority (RSA chapter 204-C)1, Municipal Bond Bank (RSA chapter 35-A), and Pease Development Authority (RSA chapter 12- G). b) Some statutes creating these entities expressly state whether the Right-to-Know law applies, but others are silent on this point. Without express statutory language, the applicability of the Right-to-Know law will depend on the nature and extent of the governmental functions the entity performs. See generally Prof’l Firefighters of N.H. v. Healthtrust, Inc., 151 N.H. 501 (2004); N. N.H. Lumber Co. v. N.H. Water Res.Bd., 56 F. Supp. 177, 180 (D.N.H. 1944). While the AG’s Memorandum is not definitive case law, it is persuasive in identifying that the essential government function test has not been eliminated by the Courts in favor of the revised definition of the public body identified in RSA 91-A:1-a VI(e) to include 501(c)(3) nonprofits. This interpretation would not be assistive in determining the Professional Firefighters of N.H. v HealthTrust matter as a public agency subject to RSA 91-A. The legislature did not have a crystal ball to predict these unique federal financing structures, clearly geared for private corporations, to be contorted to fit a municipality. As Attorney Kaminski stated in the November 24, 2020 BOA meeting, “Why the devil is this so complicated?” See Vol. III Appx. at 81. III. Did the Court misapply the maximum expressio unius est exclusio alterius to dismiss this case when applying that maxim led to absurd results and conclusions? The Defendants argue that when the legislature enacted the 2008 provision regarding corporations, it narrowly applied it to government “owned” or controlled 501(c)(3) tax-exempt corporations. The Court accepted this interpretation that the legislature must have intended to exclude all other types of government-controlled or affiliated corporations, including for-profit corporations such as NPAC Corp and applied maxim, expressio unius est exclusion anterius to justify the exclusion. See Vol. II, Appx. at 89. “The maxim [expressio unius est exclusio anterius] requires great caution in its application, and in all cases is applicable only under certain conditions.” Norman J. Singer & J.D. Shambie Singer, STATUTES & STATUTORY CONSTRUCTION § 47:25 (7th ed. 2007). As early as 1865, the New Hampshire Supreme Court11 agreed that it must exercise caution when applying that interpretive canon. [T]he maxim expression unius est exclusio alterius can have no application, for here the plaintiff rests his claim upon subsequent acts of the defendant..., and not upon any original obligation to pay. Even if the two cases stood upon similar footing the application of the maxim would, to say the least, be doubtful, for it is always to be applied with great caution. Low v. Connecticut & Passumpsic R. R., 46 N.H. 284, 292 (1865)(emphasis added); see State v. Lukas, 164 N.H. 693, 695 (2014).12 And the United States Supreme Court has been even more circumspect in applying the maxim. “At best, as we have said before, the canon that expressing one item of a commonly associated group or series excludes another left unmentioned is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives.” United States v. Vonn, 535 U. S. 55, 65 (2002)(emphasis added). The canon should only apply when “circumstances support[ ] a sensible inference that the term left out must have been meant to be excluded.” National Labor Rel. Bd. v. SW General, Inc., 580 U.S. 288, 302 (2017)(quoting Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 81 (2002)). The Supreme Court has held that expressio unius est exclusio alterius and analogous interpretive principles: “long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.” 11 The State’s high court was then called the “Superior Court of Judicature.” 12 The New Hampshire Supreme Court “interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said....’” State v. Lukas, 164 N.H. at 695. (emphasis added)(citations omitted).

SEC v. Joiner Leasing Corp., 320 U.S. 344, 350–51 (1943); see Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23 (1983) Indeed, [t]he force of any negative implication... depends on context. We have long held that the expressio unius canon does not apply “unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it” and that the canon can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion.” Marx v. General Revenue Corp., 568 U.S. 371, 381 (2013)(emphasis added) (citations omitted). “This maxim is increasingly considered unreliable, for it stands on the faulty premise that all possible alternative or supplemental provisions were necessarily considered and rejected by the legislative draftsmen.” National Petroleum Refiners Ass’n v. Federal Trade Comm’n, 482 F.2d 672, 676 (D.C. Cir. 1976)(emphasis added)(citing American Trucking Ass’n v. United States, 344 U.S. 298, 309-10 (1953)). The Supreme Court in the case of State v. Etienne, 35 A. 3d 523 (2011) wrote: Maxims of interpretation based on customary language usage, such as the rule that expression of one thing implies the exclusion of another, have been held to have less weight when their application would produce a result in derogation of common law." 3 N. Singer & J.D. Singer, Statutes and Statutory Construction § 61.2, at 340-43 (7th edition 2008) (footnotes omitted); See Bolduc v Herbert Schneider Corp., 117 N.H. 566, 568, 374 A.2d 1187 (1977) Sutherlands Statutory Construction § 61.2 (8th ed.) – Statutes in Derogation of Common Law (emphasis added/footnotes omitted) provides that: Courts routinely draw upon the full array of familiar interpretive tools and look to a law's plain text; 2 employ maxims such as ejusdem generis and expressio unius est exclusio alterius; 3 consider legislative history; 4 invoke the rules disfavoring absurd, 5 retroactive, 6 and unconstitutional interpretations; 7 With respect, the Court’s use of the expressio unius est exclusio alterius canon was improper in this case for several specific reasons.

The creation and existence of NPAC as a for-profit corporation was and is unlawful because it violates the New Hampshire Constitution pt. II art. 5 in that: (1) it is indirectly (if not directly) owned by the City of Nashua, (2) it is effectively controlled by the City of Nashua, and (3) its start-up financing and money comes exclusively from the City of Nashua. Respectfully, the Court was incorrect in pronouncing that, although Plaintiff has a point in asserting that NPAC unlawfully exists, “the legality of the ownership structure is not squarely before the Court in this Right-to-Know litigation.” See Vol. III, Appx. at 86. For, a proper analysis under expressio unius est exclusio alterius required the Court to consider whether the Legislature could lawfully have even considered whether to include an unconstitutionally formed and existing corporate entity in RSA 91-A:1-a, VI(e).13 IV. Was the Court’s first and only denial of the Plaintiff’s amendment to the complaint proper? Plaintiff filed a motion to amend on January 29, 2024, Under New Hampshire law, liberal amendment of pleadings is permitted unless the changes would surprise the opposing party, introduce an entirely new cause of action, call for substantially different evidence, or fail to correct the defect in the original complaint. Sanguedolce v. Wolfe, 164 N.H. 644, 647-48 (2013) On January 29, 2024, Plaintiff filed an amended complaint in an attempt to shorten the original prolix filing. The Plaintiff would have been better served to obtain information through answers and discovery to amend the Petition. The Court denied the amendment, stating that there were no new constitutional causes pt. 1 art. 8. (pro se complaint "can only be dismissed for failure to state a claim if it appears `beyond 13 See Section II.A. supra. The Court will need to determine whether Plaintiff has stated a sufficient claim that NPAC is an unlawful entity whose corporate structure should therefore be ignored, and the City treated as the de facto owner of 201 Main Street, when considering whether its documents and information are within the reach of RSA 91-A. See also Section III infra. doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (quoting Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam)). See also Meade v Grubbs, 841 F.2d at 1512. Rule 15(a) embodies the federal courts' policy of liberal pleading amendment by ensuring that an inadvertent error in, or omission from, an original pleading will not preclude a party from securing relief on the merits of his claim. Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2006). Garrett v. Wexford Health, 938 F. 3d 69 - Court of Appeals, 3rd Circuit 2019 CONCLUSION In accordance with the foregoing, Plaintiff requests this Court find the Court dismissal was premature as the case stated a cause of action, met the threshold requirement, and that Parties violated the RTK law as described above. The Plaintiff understands her lack of legal training in submitting this appeal but wanted the Court’s opinion regarding this public-private partnership funded with significant amounts of taxpayer money and without any discussion or accommodation for public records access or disclosure. The Court should determine that it did not eliminate the use of the essential governmental function test to determine public records in public-private partnerships. ld The expressio unius est exclusio alterius maxim was misapplied such that the application was misapplied as its use produced an absurd result. The Plaintiff should be permitted to amend her complaint. REQUEST FOR ORAL ARGUMENT AND CERTIFICATION Plaintiff requests to be allowed 15 minutes for oral argument because the issues raised in this case are novel in this state, because document cases involving federal tax credit programs are often susceptible to confusion, and because the outcome of this case will determine the Municipalities rights to engage in public-private partnerships with tens of millions of dollars of taxpayer money without the public rights to obtain records regarding the use of public money. I hereby certify that on June 20, 2024, copies of the foregoing will be forwarded through the Cout electronic filing system to all Defendants. Respectfully Submitted, Dated: July 7, 2024 ______________________ /s/Laurie Ortolano Laurie Ortolano, pro se 41 Berkeley St. Nashua, NH 03064 603-930-2853 laurieortolano@gmail.com WORD COUNT I, Laurie Ortolano, hereby certify that pursuant to NH. Sup. Ct. R. 16(11), this brief contains fewer than 9, 500 words, exclusive of the Table of Contents and the Tables of Citations, as determined by the word count tracked by the computer software used to create this brief.