By DAMIEN FISHER, InDepthNH.org
CONCORD – The New Hampshire Supreme Court says former Claremont Police Officer Jon Stone, now a Republican state representative, cannot shield his police disciplinary record using a 2007 union agreement reached when he was terminated by the department.
Stone has been blocking attempts by this reporter to have his police personnel records released under the state’s right-to-know law since June of 2020. Stone’s appeal to the New Hampshire Supreme Court relied on the theory that his union-negotiated agreement with the department takes precedence over state law.
Under the agreement, the department was supposed to purge his personnel records of at least two incidents that led to his departure, and keep the reasons for his termination confidential.
But the justices unanimously ruled in an opinion released Wednesday that is not how state law works.
“Although the confidentiality provision provides that the ‘parties and their agents/representatives agree to keep the existence, terms, and substance of this Award confidential,’ any such confidentiality is qualified. Indeed, the provision expressly provides that the ‘parties and their agents/representatives’ shall keep the ‘existence, terms, and substance of this Award confidential . . . except to the extent required by an order of some other agency, court of competent jurisdiction, or by law.’ (Emphases added.)
“Thus, the Stipulated Award does not mandate wholesale confidentiality. Rather, it demonstrates the parties’ recognition that the law could change over time and that the confidentiality provision would not prevent disclosure of the relevant records if such disclosure is required by law,” the justices wrote.
Stone, through his attorney Peter DeCato, acknowledged during November’s oral arguments before the Supreme Court that his records are subject to New Hampshire’s right-to-know law, but they cannot be released because the union agreement’s confidentiality clause protects the public from knowing why he was pushed out.
Under the agreement, the records in Stone’s personnel file were purged. However, Claremont’s Police Department maintained copies in its Internal Affairs files, which it was prepared to provide when requested under the right-to-know law. DeCato and Stone claim all the records in all files should have been destroyed and off limits thanks to the union agreement, but the Supreme Court did not agree.
“The City did not violate the (agreement) when it purged the records in question from the plaintiff’s personnel file but did not destroy them,” the opinion states. “(W)e conclude that the confidentiality provision of the (agreement) does not prevent the City from disclosing the relevant records in question if such disclosure is otherwise required by law. Here, the trial court concluded, and the plaintiff does not dispute, that all of the required records are subject to disclosure under RSA 91-A:4, I.”
In a separate concurring opinion, Associate Justice Anna Barbara Hantz Marconi expressed concern that confidential agreements, like the one between Stone and the Claremont Police Department, are becoming legally unenforceable thanks to the Court’s recent rulings that open police personnel records to the right- to-know law. In two 2020 decisions, the Court ruled police personnel and discipline records are subject to RSA 91A, the state’s right-to-know law.
“Such agreements can serve an important purpose, and our developing RSA 91-A jurisprudence, along with other record retention policies, may reduce or eliminate the availability of this device. Restrictions on confidential settlement agreements with respect to public employees, and in particular, law enforcement officers, raise policy considerations beyond the outcome of this case,” Hantz Marconi wrote.
Ultimately, Hantz Marconi agrees with her colleagues due to the language in the 2007 agreement which allows for future changes to law to override the confidentiality clause.
“I also do not think that the language in the agreement — ‘except to the extent required . . . by law’ — provides fair notice that a reinterpretation of the right-to-know law, not an amendment thereto, could undo an agreement reached years prior, under a prior interpretation of the then-governing law. We interpret contracts with reference to the circumstances and intent of the parties in place at the time the contract is made,” Hantz Marconi wrote.
Claremont’s attorney, Shawn Tanguay, has yet to respond to a request for Stone’s records made again on Wednesday after the opinion was released. While Stone did not respond, his attorney Peter DeCato told InDepthNH.org he agrees with Hantz Marconi’s concerns and thinks Wednesday’s opinion will hurt his client and others in the future.
“I predict this decision will have an impact on collective bargaining, will unnecessarily expose people for their unproved allegations and will unreasonably indict Jonathan. So, is this really in the public interest?” DeCato said.
DeCato told the justices during November’s oral arguments that the contents of Stone’s records are highly sensitive.
“It will embarrass and humiliate my client, and it will embarrass and humiliate multiple people in the city of Claremont,” DeCato said during the arguments.
According to DeCato, Claremont was preparing to make unspecified accusations against Stone publicly in some manner, and the city had 30 witnesses ready to testify against Stone. Instead, Stone and the department agreed to a parting of the ways.
On Wednesday, DeCato said the 2007 agreement was in the best interest of Stone, and Claremont.
“Seventeen years ago, the City of Claremont and Jonathan Stone agreed to turn back the clock. By doing so, they agreed to disagree whether Jonathan had violated personnel rules and regulations and whether Jonathan had acted inappropriately. Jonathan was allowed to resign from the force. He was not terminated. The City and Mr. Stone acted lawfully in 2007 when they entered into this agreement. Now, seventeen years later, unproven and disputed facts will be exposed to the community,” DeCato said.
Damien Fisher is a veteran New Hampshire reporter who lives in the Monadnock region with his wife, writer Simcha Fisher, their many children, as well as their dog, cat, parakeet, ducks, and seamonkeys.
