School Board Members not to Release ‘Privileged’ Information Individually

April 24, 2015

 

by Barbara O’Brien

Windham School Board members are hoping that their recent decision not to release “privileged” information, as individuals, without the consent of other board members or an authorized member of the administration, will silence a debate that has gone on now for more than a month.

During the March 17 meeting, school board member Dennis Senibaldi accused fellow board member Ken Eyring of violating his oath of office by asking an attorney, other than the one employed by the school district, for an opinion.  Eyring’s question related to the proposed Cenergistic contract, which involved an energy management agreement.  Cenergistic, subsequently, withdrew its offer.

Senibaldi became aware of Eyring’s correspondence to the other attorney when he accessed Selectman Bruce Breton’s personal email account.  Eyring had asked Breton for advice on contacting a municipal attorney.  Breton said he was not aware that Senibaldi had read the email, and then forwarded a copy of it to himself.  Senibaldi raised the issue in public after Eyring refused to support Senibaldi as school board chairman.  Eyring was, subsequently, elected chairman by a vote of 3 to 2.

After meeting with school district counsel on April 7 and April 21 and undergoing school board member training on April 14, the school board issued a letter, one that was read in public during the April 21 meeting.  According to that letter, school board members were told “that not all attorney-client communication is privileged and confidential, even if marked as such.”  However, in the opinion of school district attorney Gordon Graham, the information shared by Eyring was covered by attorney-client privilege.  “It was deemed by counsel that the release (by Eyring) was a minor mistake,” the letter stated.

The letter read during the meeting by school board Vice-Chairman Tom Murray also stated the following:

“Generally speaking, it is best practice to treat all attorney-client communication as potentially privileged and confidential, and to seek the permission of the full school board to release the information, prior to divulging the communication to the public.  In the normal course of business, it is not uncommon for administrators and boards to release attorney-client communications to the public, so that the public has a full understanding of the issues confronting the board.  In certain cases, however, it may be important, and perhaps required, to keep communications with counsel private; for example, when it relates to student matters, personnel matters or other issues that could adversely affect the district’s position, either in contract negotiations or in litigation against the district.”

The letter also stated, “While there may be occasions when the release of privileged and confidential attorney-client communication is helpful to voters and helpful to the school board, the fact is that the authority to release privileged and confidential attorney-client communication belongs to the full school board when it is convened, in accordance with the Right-to-Know Law, and to the duly-authorized administrative officials.  While the attorney-client privilege regarding privileged and confidential communication can and often is waived, the decision to do so must be made by a duly authorized administrator or the whole Board.”

In the future, members of the Windham School Board are expected to take steps to garner permission from the full board or authorized administrators, before releasing communications that might be considered privileged and/or confidential.  A single school board member is not to release any such information to the public without this permission.

The letter read by Murray concluded by stating, “The board believes that this understanding and commitment going forward is sufficient to resolve questions about the release of communication from counsel.”

School board members also voted, after the fact, to release the information pertaining to the Cenergistic contract, that which had already been disclosed by Eyring earlier this year.

After the letter was read, Eyring said, “It is my opinion that I’ve done nothing wrong.”  Eyring said he had spoken with four attorneys about the issue and had been told by two of them that he’d committed no offense, while the other two designated his actions as “a minor offense.”  Senibaldi continued to claim that what Eyring had done “was wrong.”

At that point, Windham resident and Massachusetts attorney Andrea Alexander came to the podium to defend Eyring, whom she said she had met only a few weeks earlier, while attending a ballgame.  “I respectfully disagree with school district counsel,” Alexander said.  “I commend Ken Eyring for his integrity in seeking answers” to Cenergistic’s proposal.  Alexander said she was astounded that Eyring’s actions were even being questioned, much less causing such an eruption in the community.  “I saw it grow legs and take off in the newspaper,” she said.  “I’m sorry we’ve had to take so much time on this issue, but I feel it needs to be dealt with definitively.”  “I plan to clear Ken’s name,” Alexander said.  “He is an honorable man.”

Alexander was hindered in her attempt to speak, however, as school board member Rob Breton, who has served in that position for just over a year, attempted to shut her down.  Sounding like shades of former school board chairman Jerome Rekart, who had quashed public comments this past January, Breton shouted, “We’re moving on.  This is not a court of law.”  Stating that Alexander was taking too long at the microphone, Breton said, “We have other business, tonight!”

Murray, who was acting as chairman during the discussion, in order to prevent any conflict of interest on Eyring’s part, disagreed with Breton, however, saying he would allow Alexander to proceed, as she had a right to do so.  He did ask her, however, to keep her comments as brief as possible.

Alexander handed out copies of the New Hampshire Right-to-Know Law (91:A) to demonstrate her point that Eyring had committed no offense in sharing information concerning the Cenergistic non-appropriation clause with others.  “Dennis (Senibaldi) is confused,” she said.  “The letters that Ken Eyring shared were business advice only and do not carry attorney-client privilege,” Alexander said.

Alexander said that the school board’s decision not to allow an individual board member to release information allowable under the Right-to-Know Law is a subversion of that law.  “You’re suppressing information” that the public is entitled to know, she said.  “Your decision inhibits transparency and disclosure.”  “By seeking answers, Ken (Eyring) is the only one upholding his oath of office.”  “You have a right to know, people,” Alexander told those in the audience.  “File your requests!”

In response to Alexander’s comments, resident Joe Miller said, “It’s clear lawyers are going to disagree.”  “You need to listen to the school district attorney,” Miller told school board members.  Former school board member Bruce Anderson said he agreed with the school board’s decision to prohibit individual members from releasing any information from the attorney.  “If some information is released it can be dangerous,” Anderson said, saying how it could cause negotiations to break down or incur expenses for taxpayers.

“Why weren’t you already following this policy?” former school board member Michelle Farrell asked.  “We’re just going to let this matter slide?” she wanted to know, referring to Eyring’s alleged “minor mistake.”  Resident Greer Ross agreed with Farrell, saying, “A slap on the wrist isn’t good enough!”  The school board needs to set an example,” Ross added.

School board members were obviously through with the discussion; however, stating that there is much more important business to be taken care of and it’s time to put the issue of dispensing so-called privileged information behind them.