First up are the notes of the non-public hybrid meeting held July 1. Right off the bat, Gary Kiedaisch was called out for acting on his own (again) without the consensus of the rest of the Commission. In reading through a number of the past meeting minutes and putting them together with the information in the now unredacted legal billing records (again, seemingly, mostly on the single say-so of Kiedaisch). A majority of the Commission voted to reprimanded for “going rogue” (my words, not the GACs).
Read this first. You should try reading it twice as it is “dense” (in a “lots of information” manner). It may be confusing at start as it really depends on the next document – the Legal Review by PretiFlaherty.
GAC July 1 Non public meeting minutes draft
For all of his talk about how the GAC should operate, it’s clear that he has a habit of saying one thing, quoting another, and then throwing both into the trash (when you read all the back minutes of which there are a fair number of them missing; I have taken the time to actually read the vast majority of them).
Thus, I’m glad to see that the GAC is now going into self-correcting mode – it’s been a long time coming.
While the above was done in Public meeting, the GAC then went into non-public to review the latest legal review (below) written by PretiFlaherty (“PH”) law firm. I’m providing a quick summary, along with some commentary, but I would suggest reading the above notes and this Report a couple of times. When taken in toto, they do not paint a very good picture for the previous GAC makeup at all.
It was tasked to answer three questions:
1) Is the Code of Ethics, composed by Commissioner Gary Kiedaisch, legally binding? PretiFlaherty’s opinion was that it was “it is of no force or effect” (page2, next document).
Much hot air was expended over this issue. With this determination, I concur with the result. While nice sounding, it’s purpose in the GAC case was to be used as a political bludgeon for the author. When new Commissioners refused to accede and sign it, he made political hay of it using the rubric that all companies of worth have one. Yet another forced error as Gunstock, to the protestations of himself and the Sr. Management of Gunstock Mountain Resort, GMR IS NOT A COMPANY. It is merely yet another subdivision of the State (of NH). Given we are a Dillon’s Rule State, any subdivision of the State can ONLY do those things specifically allowed by the NH Legislature – which has not been given to the GAC to place a CoE onto itself.
“As a creation of the legislature, the Commission possesses only those powers expressly granted by the State.”
This is EXACTLY the same reason for last week’s US Supreme Court in the EPA decision which was a Separation of Powers issue and not that Congress and never granted any Power to the EPA to regulate CO2 emissions when the Clean Air Act was first created. They could have done so anytime after that.
They didn’t.
Thus, the EPA was disallowed from continuing as it could not grant Powers to itself simply because of either political expediency or for ideological reasons. Think: Sununu and “Public Health trumps EVERYTHING” is putting NH and US Constitutional norms into the trash bin.
So, too, did Gary Kiedaisch in writing GAC’s Code of Ethics.
Next:
2) Was the “Report on Gunstock Area Commissioner Peter Ness” (August 19, 2021), meant to knock now Chair Peter Ness off the GAC, valid and “properly supported by sufficient evidence” (page 4 in the document below).
First, they noted that the report was commissioned by only TWO Commissioners – Kiedaisch and Gallagher (who were joined at the hip in their “dislike” of Ness) and in disregard of the ByLaws. This notation was rather a slap to the face of both of them:
It remains unclear how the Commission vote to review the legality of the ethics policy was transformed into a report on a single commissioner or what authority existed to investigate that commissioner.
Yep, the Washington Post’s tagline, “Democracy dies in Darkness” certainly seems to fit as “dark corners of Government” seems to fit well here in describing this action. From that, the GAC filed suit against the Delegation to remove Ness “for cause”. It continues to shred the Report’s conclusions, sans any evidence:
As to the conflict of interest claim, the report contains a number of conclusory assertions but fails to present any evidence in support of those conclusions.
In my business, that’s called a political hit job. And the PH report makes it clear:
The timeline raises concerns that this may have been done because, at least in part, Commissioner Ness was assertive in fulfilling his role as a Commissioner. Requesting records, reviewing the finances and insisting on compliance with RSA 91-A are hallmarks of our approach to open government (pg 6)
In other words, Kiedaisch and Gallagher went after Ness, in my reading of this, for doing his job properly. This isn’t going to set well for the “old guard” GAC as they liked the way things were going for them. This Delegation, made up of Conservatives and Libertarians, wanted Comissioners that would actually follow and honor The Law – something they saw lacking with the previous GAC.
And having done so, members of the Delegation are now facing political retribution for, as I keep saying, taking away their playtoy: Ms. Larson, Rusty McLear, Brian Gallagher, and Russ Dumais. These I deem “sore losers”. But I’m just a lowly blogger…
Lastly:
3) Did the lawsuit filed by the GAC against the Delegation actually have merit (e.g., was the money expended for a good cause)?
I dryly note that PH quickly picked up that this was NOT a legal manner – it was Lawfare meant to forestall a political event that would have removed one or more Commissioners “for cause” (page 7):
Our preliminary conclusion is that it was an aggressive attempt to significantly delay a removal hearing, control how the hearing would be conducted and preclude certain members of the delegation from participating in a hearing, but it was not well-founded and was likely to be dismissed.
Angerly done, put off and put off, get control of the process by taking it away from the Delegation, and then remove those NH House Reps they knew were already against them. Such a deal – it’s like a criminal squatter rushing into your house and saying it’s legal for them to change the locks – right in front of you.
Is THAT how Democracy works? I say no – and PH, upon seeing the intent, saw that it was just a political stunt as the lawsuit had no chance at suceeding. But, once again, the former makeup of the GAC spent a lot of money on doing so.
AND showing that it was a political ploy, made the Delegation spend a lot MORE money to defend itself (>$40+) and then used that as the hidden shiv to stab the Delegation in the back (emphasis mine):
It appears likely the court would have dismissed the action on procedural grounds and on the merits. There were significant issues raised by the BCD in its motion to dismiss:
(1) whether the GAC had standing to bring the claims as the individual Commissioners, not the GAC, were subject to removal;
(2) whether the claims were sufficiently ripe for the court to consider, as the public hearing had not yet been held and while there were concerns expressed by the Commissioners about the procedures to be employed at the hearing and the impartiality of the delegation, there was no certainty as to how the hearing would be conducted, what procedures would ultimately be employed, who would attend and sit, and how the attendees may vote; and
(3) whether the litigation was an impermissible attempt to usurp the statutory authority of the BCD to determine who sits as a GAC commissioner.
Here’s the Report in full:
GAC PGC to Commissioner Ness encl Final Reports 06 30 22
While the Report reviewed the evidence, the partial motives, it is clear it hasn’t closed the circle just yet. The effort in revealing malfeasance is not yet complete.
Again, “Democracy dies in Darkness”. That Darkness is also added by those believing that the end justifies the means especially when it is to your political advantage.
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