Telegraph Fights for Public’s Right to Know Business of Utility Once Private Now Public

By Jonathan Van Fleet

Image courtesy of The Telegraph

NASHUA, N.H. — As city officials were toasting glasses full of tap water, cheering their acquisition of the once-privately owned Pennichuck Water Works, here in the newsroom of The Telegraph we already had the first of a series of Right-to-Know requests written and ready to deliver.

On Jan. 25, 2012 — after 10 years of trying — the city of Nashua bonded $152 million to obtain the water utility, its infrastructure and its land. The goal was to protect the watershed from further for-profit development and to preserve the water supply through city ownership. But city officials didn’t make Pennichuck a new city department, like the police, or fire, or public works departments.

The new municipally owned Pennichuck water utility was created as a separate corporate entity from the city, and almost all Pennichuck employees were retained. The city drafted new Pennichuck bylaws, which included a provision stating its records would be subject to the NH Right-to-Know law.

Our plan was to file a series of requests to open the water utility to a new level of public scrutiny. The morning after the city bought Pennichuck, we formally requested the names and salaries of all Pennichuck employees.

Nearly half of a year later, the information still has not been publicly released. The union representing the majority of Pennichuck workers (the United Steel Workers) sued its parent company to prevent the release of the information, and sued The Telegraph to prevent us from publishing it.

The decision to release the salaries is awaiting a ruling from the New Hampshire Supreme Court.

The Telegraph asked for the salary information first because we considered it to be solidly in the public domain and believed it would reveal interesting comparisons between longtime city and Pennichuck employees.

We figured the city may have a pay disparity on its hands. It stood to reason that a Pennichuck engineer could be making a heck of a lot more money than a city of Nashua engineer with the same experience. Or the guy who fixes a pipe for Pennichuck may earn twice as much as the guy doing the same job at the city’s wastewater treatment facility.

After the city received our request, Pennichuck Comptroller Bonnie Harley notified the employees in a Feb. 1 email that the payroll information would be released to the newspaper.

“Due  to the fact that we are owned by a municipality,” Hartley wrote, “Pennichuck is now subject to New Hampshire’s Right to Know Law, RSA Chapter 91-A which states: ‘Openness in the conduct of public business is essential in a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussion and records of all public bodies, and their accountability to the people.’ RSA 91-A:1

“The basic rule is that governmental records must be made available for public inspection and copying upon request. … Pennichuck is required to respond and will be providing this information as requested.”

The same day the email went out to Pennichuck employees, the union filed suit.

The union argued that Pennichuck remains a private, for-profit entity and since its finances are not directly controlled by the city of Nashua, but rather a city-appointed board of directors, it is not subject to the Right-to-Know law. Neither taxpayers, nor city officials for that matter, should get to review Pennichuck’s books, they argued.

In essence, they tried to argue a distinction between city ownership and city control as the basis for non-disclosure. The state’s Right-to-Know law does not contain specific language that addresses the uniqueness of any municipality’s ownership of a regulated for-profit utility. As far as The Telegraph could determine, this ownership structure is unique in the country.

Regardless, city taxpayers are on the hook for the $152 million the city borrowed to acquire Pennichuck through a negotiated stock-takeover of $29 a share.

In court, despite being co-defendants with the newspaper, Pennichuck’s attorneys argued that the company’s own bylaws stating the records would  be subject to public disclosure were immaterial, and could be changed if that was the court’s decision.

In the meantime, the legal costs of pursuing the information have been significant and reimbursement for the suit may be nonexistent. State law allows attorney fees and costs to be reimbursed, but only under narrow circumstances. Specifically, the court must find that an agency “knew or should have known” that its refusal constituted a Right-to-Know violation.

Still, Telegraph publisher and NEFAC board member Terrence Williams pledged the newspaper would continue its efforts to obtain the information.

“We interpret these employees as public employees, and as such their compensation is a matter of public interest, and the public has a right to know what that compensation is,” Williams said.

Jonathan Van Fleet is managing editor/content for The Telegraph.

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