City of Portsmouth, New Hampshire Governance Committee, 10 Apr 2023

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4.10.2023 Governance Committee

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Everyone I want to call this meeting of the governance committee to order we'll start.

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With a roll call, counselor tabor here, councilor lombardi here and I'm counselor cook- and I am here.

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um The first thing on our agenda today is to review the minutes from our meeting on march.

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13Th those were published in the last agenda for this committee and they are here online.

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For those who are looking for them, you should look at our last agenda. These are the minutes.

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That we published online for approval our draft minutes. Can I get a motion to approve.

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So moved second, are there any comments? All in favor, aye aye? The minutes are approved.

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You know we now go to an issue we started discussing at the.

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Last council meeting under old business conflict of interest.

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And again, you'll see the notation and the agenda for those are at home. Conflict of interest comes.

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Up in at the city level, in several places in our ordinances and our council rules also in the.

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City charter with that said, we have a guest that we've invited today to come and join us to discuss.

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Conflict of interest, mr thomas nice, and I'm going to invite him up to sit with us here at the table.

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So we are really starting looking at some of the more challenging. This is one of the more.

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Challenging issues with the city, and we have several key documents to look at on conflict.

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Of interest, and so that starts with ordinance provisions, charter provisions, council rule and.

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The state law that's relevant to us, but of course we have no governing power over.

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um I've invited mr nice here today because he has quite a bit of experience, dealing with conflict of.

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Of interest- and I think the committee wanted to hear from him on any concerns recommendations he.

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Might have with regard to our ordinances, which you know this comes up in the ethics ordinance under.

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Section 1802 conflicts of interest with that said, I'm going to turn it over to you, mr nice. If you.

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Want to share some insights with us and pull the microphone close. That's.

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Are they all all on or they're all on? Okay, thanks uh yeah, just by way of background, I.

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Serve as the executive director for the new england fishery management council, a.

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Position I've been in for 10 years, and I've worked with a council for about 25 years.

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And there's some similarities in a way because the council has appointed members, not elected members,.

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And they are essentially creating fisheries management regulations that often in apply to.

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Themselves as well, because there are fishermen and other people in the industry and the council.

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So, there's a little bit of a a there's, always this tension of at the council level. Much as.

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There is at the city, council level, I suppose, can we interrupt and ask questions as we have.

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Sure is the fisheries council. Is it an administrative body or a legislative body.

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So there are eight regional fishery management councils established by the magnus and stevens.

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Act in 1976. they serve, they are not part of the federal government, but they are entitled.

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They are funded by the federal government. They are generally referred to as a quasi-governmental.

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Agency they develop management plans with which we submit to the secretary of commerce.

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And the secretary of commerce is obligated to implement them in regulations as long as they.

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Can are consistent with applicable law. So that's a sort of a roundabout way of saying we're in a.

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Very unusual status, what I'm, what I'm really working towards, is trying to establish the real.

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Similarities or differences between the council and the city council, you know so that it'll put.

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Things into a frame or a context, uh city council, of course, there's a legislative body that, among.

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Other things adopts laws that other people have to follow. Does the fisheries council.

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Adopt regulations or yes, yes, as I said they have to be approved by the secretary of commerce, who's.

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Actually, the person who implements them, but yes, the fisheries management council, develops.

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A management plan which leads to regulations that must be followed by anyone fishing in.

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The fisheries we manage, including council members sitting at the table. Oh thank you.

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Okay and so rick we're a little different in that recognizing the tension between wanting.

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People on a council to know what they're doing and the conflict of conflict of interest issues.

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Congress created a little bit of but congress created specific requirements for fisheries.

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Management councils, which in some respects are probably more liberal. What than what.

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You see in most industries or even in other legislative bodies and that fishery management.

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Council members are allowed to participate in discussions as long as they don't have a.

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Significant and disproportionate value interest in the fishery or the issue they're discussing.

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So that's kind of background just to where I'm coming from pardon it's as clear as mud yeah. So.

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You know the only reason I mention that is because we meet five times a year, and so we have a very.

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Formal process set up to decide whether there's any possible conflicts of interest coming up in.

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A meeting I work with a noaa attorney regularly and we discuss the issues and we lay it out. We.

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Have similar requirements as you do, for financial disclosure and those types of things? So that's my.

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Background when you guys started this looking at this, you probably don't remember, but I wrote.

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You guys a letter last winter that identified specific things, but you know I'm ready to talk.

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About the specific things, but I think in general to talk more at the higher level first here.

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You know you've got language in your city, ordinance, not your city, ordinance in your city,.

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Charter, we have language in our city charter, which I think is very restrictive and very detailed in.

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What it says- and there is a difference, as you know, between a legislative decision, as you will.

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And a judicial decision, so you know, planning boards are primarily making a judicial decision.

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But the language in the city charter essentially means that a lot of that strict stuff applies to.

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Not just the judicial decisions made in the planning boards, but legislative decisions.

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Made by the city council, and so I think there are a lot of discrepancies that pop up when.

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You start looking in the details between what is written in the city charter and what we actually.

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Have in our city ordinance, I think there are also some questionable comments and I have to.

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Be careful here I'd have to check my notes, one of the other about possible penalties that are.

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Allowed that are somewhat perhaps in conflict with new hampshire rsas that are provided here.

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But more importantly, perhaps than the details is, I think that.

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I work needs to be done to make sure everything's clear, so everybody knows what the rules are and.

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I don't mean just the counselors know what the rules are, but so the public knows what.

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The council's members and others in the city are adhering to, and the other thing is, I think.

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This has to be not just a question of what you're right in your ordinances, but how you administer it.

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I don't actually know how you administer this program on a routine basis, but I know what we do.

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We, as I said, we have a very formal process where we evaluate, what's on the agenda, to determine.

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If there's a possible conflict of interest that someone may need to recuse themselves on.

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All of the opinions are written that we get from our attorney. If someone and all those written.

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Opinions are public, our financial disclosure forms are posted on our webpage, so everyone knows what.

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Financial interests people have or what possible conflict of interest, not just financial interests.

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That there could be, for example, if you're in an organization or an officer of an organization that.

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May have an interest in the results that has to be declared and we provide training not only to new.

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Council members, but we provide periodic training once a year to all of our existing council members.

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In public, which reminds them of the requirements, if somebody wants to go to your web page and look.

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At these things, what what would the name be to search for? So, if you look at our web page, we have.

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um Like most people, we have an about us web page that lists all the council members and.

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Under each council member, we have a short biography and we listen. We have.

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Their financial disclosure form published now the fisheries management council.

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Www.Nefmc.Org new englandfisherymanagementcouncil.org.

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And you know the forms are um not terribly detailed. Okay, you know, we don't require people.

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For example to report salaries, but they have to report who they're employed by if.

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With us it's in certain categories because we deal with fisheries management regulations, so it's.

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Like harvesting lobbying processing activities that apply so it's a you know they don't. I use.

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This as an example, we've got one of our members who owns a beauty salon with his wife. I mean he.

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Doesn't have to report that, obviously so tom, if, if your legal counsel provides a written opinion.

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um That there may be a conflict for a member. Can the board override that with a vote? No, no! So.

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Process is obviously a little different than what happens with a city council. Okay, our.

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Legal advisor is a noaa attorney, he is. Doesn't I forget his? What.

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His title is, but he's designated to make these determinations. He can make a determination it. It.

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A lot of it, a lot of stuff is, you know if there will be a routine question. Somebody calls him up.

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And answer between question: he doesn't write a written determination then, but if somebody.

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Makes a formal question or a council member has a formal question. Then they want to make sure.

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That what they're doing is legal then he writes a written determination and those are public.

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The council member has the ability to appeal that up the chain to a higher level in noaa general.

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Counsel's office, so you know there's this avenue that you obviously don't have, because you don't.

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Have you know you don't have the shame, you don't have the same process. um We also have some rather.

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Unusual rules, I think, compared to some conflict of interest rules where uh in most instances, not all.

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A council member who may have a conflict can participate in some of the discussions.

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But can't vote and they can say well if I could vote, I would vote this way. You know and in a lot.

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Of you know, there's a one very narrow exception where they have to leave the table and they can't.

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Participate in the discussion at all, but that's happens, but it's very rare is that dependent on.

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Financial interest: well, the one where they have to recuse themselves is what they call a matter.

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Of particular individual concern, which happens occasionally I'll use an example. We were trying.

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To implement a electronic logbook requirement and a company was hired to teach that and they.

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Were going to hire one of our council members to conduct the training, and so there was an obvious.

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Conflict there, where, if, if this passed p, would get hired to conduct the training, so he couldn't.

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Participate in the discussion or anything because that was a matter of particular individual concern.

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Are there the findings of conflict or potential conflict that are non-monetary.

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Yes, there can be.

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I'm trying to think of an example, because I'm most of them are monetary. I think, um but they're.

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Not always monetary to the individual, they may be monetary to the individual's organization right.

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um But yeah most I said there can be, but thinking about it I think all the ones.

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I can think of recently have had some sort of monetary connection.

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Is it would it be better for you if we left you alone, I'd rather interrupt with these.

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Questions, oh, I I basically, I think, said what I wanted to say at the start, unless you want.

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To really get into details of what's in writing now, but I think the general.

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Overview, I've pretty much said what I want to say. I you know, I think the the main point.

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Which isn't really rocket scientists right is the rules need to be clear, both the public and.

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The members that are are happen are subject to them, need to understand what they are.

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And you know, I think, there's some value to making sure the determinations and the financial.

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Disclosure forms are readily available and public to the public, so they know what they are.

E

Well, everybody here read your letter and we have all got it and we uh believe I'm.

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Sure we all believe you have substantial relevant experience and we're trying to get that from you.

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I had a question on I mean I one of the things that struck me that you said.

B

Probably the first thing you said was that there were policies and ordinances.

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And guiding principles but then there's also the administration of the process and I think.

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That's an important piece of it, and maybe you could talk a little more about that.

D

um Well, it's the federal government right yeah. Basically, so they got.

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Rules for everything, but we have. um We have a few.

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So it I didn't go into it because I don't know whether it applies here. You know I.

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Talk to you about a significant, you have to have a significant financial concern, or it.

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They have different regular language, statutory language to significant.

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And disproportionate impact on you and whether good or bad, so you know we have.

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Federal regulations that describe in great detail how you attribute ownership to somebody which.

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It's not a typical issue here in new england, but it's an issue in alaska, where you have major.

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Companies like trident seafoods- and you know you have multiple owners and you know: do you.

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Attribute all of the interest of the company to someone who's sitting on the council. If he's an.

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Employee, the answer is yes, if he's an owner- and the answer is well- no, probably not you know and.

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It depends on what his ownership level is, so, in those instances on the financial disclosure form.

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They have to describe what their ownership interest is in the company, so there's tons of.

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Details like that that you may or may not need here, the there is a national level. Obviously.

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The regulations, national level policy that apply to all the councils, all the councils- are.

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Supposed to have a review of the agenda before a council meeting that describes what goes on.

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There are eight regional councils, they all have a noaa attorney who's assigned to them.

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As I think what they actually call them is the designated official who's required or authorized.

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To make these coi determinations, um they are not challengeable by the council itself. The the member.

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Or the person whose subject can appeal them up the chain? um You know a conflict generally does.

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Not if we find out about a conflict afterwards, it generally does not overrule the decision. That was.

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Made you know, there's not like a retroactive that we do away with it, even if it is the.

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Deciding vote, I don't think we do that. I mean I mean we usually find these out ahead of time.

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How many members 18.? Oh okay, so we have 18 members. uh Membership by council varies, but ours.

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Has 18 voting members the chair, as it typically does not vote because we have so many members.

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When you do find, or you have found conflicts on the console, what kind of penalties or remedies.

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You have available, we have almost none okay bluntly, um so the remedy is, the person is.

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Supposed to recuse them so well, if, if you find out about ahead of a time they're supposed to recuse.

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Themselves from the vote: yeah, okay, but a council member- can only be removed by the secretary of.

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Commerce, so we cannot remove him, we cannot find it fine. There are probably some administrative.

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Penalties that could be implemented. I don't know that they ever have been, because we've never.

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Really had that situation, our council members are our chair of science, council members to committees.

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New england uses a lot of committees, our council does and conceivably you could be. You know the.

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Chair, if you violated a conflict of interest, rule could remove you from any committee assignments.

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But we have very few penalties available to us bluntly.

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Actually, it's very interesting because this is one of those gray areas in new hampshire, where we have.

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Rsas that say you know the remedy is to the court court removal. Our charter says something different.

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And the charter- and I wouldn't know um our legal counsel here- might have a better idea. The charter.

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Might have been in place before the rsa and we might be grandfathered or not grandfathered.

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With regard to you know the charter allowing removal, but then the the ordinance we've been.

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Careful to kind of um not be too direct about that because there is a conflict between our.

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Charter and the rsa on removal or not, um and uh that that has not been, I think, determined.

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At the court, but we have neighboring cities who have removed individuals so um which I.

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Imagine we will everything is correct. Yeah there are, there are conflicts and laws.

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um Primarily, occasionally by the fact that they were adopted at different times,.

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um In different places and uh and they have not all been resolved in court and that's.

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Where they ultimately have to get resolved, we're trying to avoid that as much as possible.

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um The uh the a good way to think about it, I feel, is that the city charter, which is the.

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Source of a lot of this and there's the source of the council's authority to act, city council.

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Authority act is basically on the same level as a state law, maybe an eighth of an inch below it. You.

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Know if there was a direct conflict, but the city charter is in a sense of state laws adopted an.

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Authority of state law et cetera, so that's that is the approach we would take if the uh dispute arose.

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hmm And so this is, this is a challenging area. I think for us that final piece, um uh thank you so.

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Much for providing this explanation for us of what you do. um I think that what we're what the plan is.

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Now, today is to start going through the conflicts of interest ordinance directly, and I don't want to.

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Spend too long on this day, but about the next 20 minutes starting to go through this, where we sit.

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And we would invite you to share your thoughts as we go along if you, if you're comfortable doing so.

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um So with that said, that's where I'm going to start section 1802 in our code of ethics.

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Ordinance the conflict of interest section in particular, and for those at home just a reminder.

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This is the section we did not address when we addressed the ethics ordinance last year, so.

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um We said we would come back to this, and here we are um the first section of 10802 1802a.

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um This is pretty clear, I think you know, maybe for the benefit of anybody who might be watching on tv.

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Or something uh we should read it if you want I'd, be happy to read it whatever. You prefer either way.

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um uh Do I can go ahead and go through it? If you want um 1802a, no officer, employees shall engage.

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In any business or transaction or she'll have a financial or other private interest.

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Direct or indirect, which is in conflict with the proper discharge of his or her official duties,.

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So I think this is something with that. Mr nice just raised, um uh the language seems very clear.

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But there's a challenge here: around definitions.

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um Financial or other private interests, direct or indirect, which is in conflict.

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With the discharge, what is a conflict with the discharge of their duties?.

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What exactly is that, I think, is the question here.

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You, okay, that's okay! You think it's clear. I.

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Actually, don't think it's clear, okay at all um because think about this.

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And no officer impulsion will engage in any business or transaction that basically covers.

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The world uh or shall have a financial other private interest, that's every kind of interest.

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There is in the world, which is in direct or indirect, uh again covers every possible option.

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Which is in conflict with the proper discharge of his or her official duties, whatever? That means.

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So this strikes me this strikes me as particularly unclear uh and maybe, as you go about your.

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Deliberations you, you could think of some way to now narrow some of those options so that it.

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Was more clear I mean, I think this statement is like john and being on the board of prescott park.

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And that's an interest of his in some ways: yeah, there's, no monetary, there's, no pecuniary, not.

B

For you, but for that organization you see, and so that's, but I feel it's a direct conflict because.

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I have a fiduciary role as as the board chair to do what's best for the festival and that may.

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Conflict with my council role yeah, but taken to the extreme, this could be read as anybody.

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Who pays taxes in the city of portsmouth couldn't vote on the budget because they.

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Have a direct interest and the the setting of property taxes. So that's one of the challenges.

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Because that is a private interest, a direct private interest with the property tax rate is.

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um So I think that's that's. I think that's what uh our legal counsel is pointing out to.

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Us this is pretty, can be interpreted in a range of ways. Maybe this whole statement is unnecessary.

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You know, ordinarily, at a city council meeting, for example, you know I just speak what I'm spoken to.

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However, I feel that the organization of this group is a little more flexible and uh and in.

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Fact I probably was invited here, so I would speak even if I wasn't smoking yes, and in that regard I.

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Really I thought that uh this is an example of you is really a great one. um For example, the.

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The arts festival has a complicated relationship with the city. It functions on city property, yes,.

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You're, a leaseholder yeah, it's uh it uh operates a business on city property. We maintain city.

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Facilities two separate complicated agreements that really re you know regulate the relationship.

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Between this group that you're a board member of and the city government itself, and you as a city.

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Councilor adopt and endorse those two agreements, so you really on both sides of them right.

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If it's his point is, I think, really well taken clearly could come within. You know.

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Direct or indirect uh financial or private, who knows- and I think one help helpful test- is.

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Was this is, if I voted say on the lease? Could that be challenged and the whole decision thrown.

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Out, because what what you don't want to have is wasting a government bodies time by somebody being.

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Conflicted and still blundering ahead through the process, and then you know so it has to be redone.

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There is some interesting case law that the vote my vote would have to be determinative.

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And if it was a 9-0 vote, my vote's not determinative, but still you know just.

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It's sort of a better safe than sorry so vince's example raises another uh important principle: it's.

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One that I refer to a lot just in the course of day-to-day business- and that is this portsmouth- is.

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A city, but it is not new york city. There aren't 10 million people out there. There's you know 23 000,.

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Or whatever the number is, and consequently people like you, you know public spirited, guy. You do two.

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Different things you serve on the city council and you help out this arts festival well that.

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That creates, you know something that somebody will claim someday. Maybe is a conflict of interest. Some.

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Some things- and that wouldn't happen in a bigger place, but it will happen here time and time and.

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Time again, so as you go through recommending any changes in these rules that you might recommend.

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And that's something to keep in mind. You don't want to be so restrictive that people like john.

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Can't exist because he's obviously helpful on both sides of that equation.

B

I know the land use boards um at the beginning of every meeting. There's a statement. I forget.

B

Exactly how it goes, but if anyone has that, I know exactly what it is it's uh I know you did because.

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You wrote it right as our as our guest today has pointed out, land use board's vote on on things and.

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They're operating in a quasi-judicial capacity, which is really the highest of the conflict of.

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Interest standards that we have- and there is case law that says that people who have an objection to.

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A voting member on a quasi-judicial reward because of conflict of interest they're required to people.

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Are required by law to raise that interest at the first known moment, and that's so that you.

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Can't if you're opposed to some project before the planning board, you can't lurk in the background.

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Wait till you know, months and months are spent on it and the plan of what comes to its final.

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Vote and if you're unhappy then raise your hand and say well, you know what about kate.

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Cook's coffee of interest in thereby torpedo of the whole process, that's gone on and required a.

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Lot of time and work and effort, so the planning board begins every meeting by saying if anybody.

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Here feels that any member of this board has a conflict of interest. Please raise the issue now.

G

That's that's what gets said and that's why.

A

The challenge around that for an elected body like the city council, is that you don't know the.

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Intentions or motivations of those filing a claim that somebody has a conflict of interest and you.

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Could end up creating a lot of work for legal counsel due to spurious claims of of conflict.

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Where there are none- and so you know when we get to that- I think my preference is for declaration.

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Of conflicts of annual disclosure of conflicts, rather than um that statement up up front.

A

um Before a council meeting, so that's interesting yeah, so we would do it every year. Yeah that that's.

A

Kind of where I'm going, but that's my my my view on kind of where we should we should start.

F

I put together some thoughts on this.

F

This one paragraph about conflict of interest is really the heart of it all, because that's.

F

Over the years, the only thing that's been actionable that we've actually acted on.

F

First off, I think um it would be nice to have a preamble.

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That states why we have a conflict of interest policy um I'll, just read you one from another city.

F

The citizens of concord are entitled to a fair ethical and accountable city government. The.

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Effect and functioning of democratic government requires that all of its officials, whether elected.

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Or appointed comply with both the letter and the spirit of the laws and be independent.

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Impartial and fair in their judgment and actions, public office is to be used for the public good.

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Not for personal gains, public deliberations and processes must be conducted in an atmosphere of.

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Respect and civility and openly and less legally confidential. To this end, the city council drops.

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This code of ethics for all of its officers and officials, where they're elected or appointed um so.

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You know, I think that I, like the the language about.

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Public offices for public good and then we're going to try and set down the standards for.

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That so that anyone in the public or who's in office or who's, an employee can clearly understand.

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The boundaries, um so I I thought a preamble would be helpful.

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um Then there's the question of how direct the monetary or pecuniary conflict is.

F

Nhma has this wonderful knowing the territory, which is a whole section of case law on conflict.

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Of interest, but one of the key principles that's come down through the court cases is.

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That the financial conflict needs to be direct and proximate, not indirect,.

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And- and you know it's approximate as opposed to what's stated in this first.

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Paragraph right so we've had the case of a restaurant owner on the city council.

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Having to weigh in on something that affects all restaurants, citywide.

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Was that a conflict? How direct is it as opposed to this affects my restaurant? Only.

F

F

You know we should think about how direct a pecuniary conflict needs to be. You know.

F

So a preamble, some language- well, there's some great language.

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In the state statute, it clarifies that says that the person involved should have.

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No more financial benefit than any other citizen or taxpayer.

F

That's a that's a pretty good standard. I think.

F

F

I think it's helpful third to.

F

Because people file conflict of interest charges all the time or.

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Complaints- or they write letters to the newspaper.

F

um So far, the only statutory conflict in new hampshire is around pecuniary interest. But there's.

F

A parent conflict, you know an apparent conflict is when somebody's been very vocal about an issue.

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And then their sitting as a city councilor or a planning board member and the issue- comes.

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Before them and everybody says he or she's biased he or she's, not thinking independently.

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And I think for a legislative body.

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That's a parent conflict, but not a conflict. We run on things. We say we're going to do things. We say.

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What we're we want to be elected to do and we have an obligation to live up to our campaign. Promises.

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um And so I think, with the legislative body.

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You know again going to the uh the concord ordinance it says.

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Defines conflict of interest, an actual conflict on a person, takes an action or makes a decision.

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That would affect his or her financial interests, business or or those of a family member. Well.

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Let's not get into family member, yet that's a whole other thing, but the very next sentence.

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Is an apparent conflict of interest is one that does not affect a person's financial interests.

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But does call into question his or her objectivity and independence. That's all it says, but it just.

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Makes that discrimination of a conflict of interest versus an apparent conflict of interest.

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I think there could be times that the apparent conflict could rise to such a level that you.

F

Know a member of a body could be perceived as not able to act, be act independently or impartially. I.

F

Think the only way we could handle that would be like the planning port have that called out.

F

Or you know have a mechanism where the body itself can raise that.

F

And say: well, mr so-and-so or mrs so, and so can you actually be impartial on this.

F

But um so my thoughts were um some preamble. Why do we want.

F

An ethics ordinance and a conflict of interest definition.

F

Something that makes clear the monetary interest is greater than that of any citizen or taxpayer.

F

Seems to me a clearly definable threshold, a relatively clearly definable threshold.

F

And and then discrimination between a conflict of interest, that's direct.

F

Personal and financial and versus apparent, which is somebody's statements or views.

F

I don't know if those help us get a better, better ordinance, but but those were my thoughts.

A

You know I, I think, especially the discussion around actual versus apparent is an important.

A

One that we need to make sure we distinguish between a legislative body and other bodies.

A

Within the city, legislative versus quasi-judicial is important, an important distinction.

A

To make there, because we also, we have several people serving not just in well.

A

They're, not in a legislative capacity but they're advising the legislative entity on committees.

A

And we appoint them because of their direct interest when you think of of committees like.

A

Arts and nonprofits, or you committee, like sustainability or a committee like the new.

A

Utc and the edc, we we appoint them because of their direct interest in wanting their views on.

A

These issues, but they don't actually make direct decisions for the city. Those decisions serve. They.

A

They send things to the council for decision, so we need to be really clear. Legislative, varsity versus.

A

Quasi-Judicial and making sure that those distinctions are clear for others as well.

D

So we we have a similar. We potentially have a similar issue. We have advisory panels, we.

D

Have committees as well? We have work groups that sometimes include outsiders, but the way we deal.

D

With that- and I don't know if this is helps you or not- is that our conflict of interest rules and.

D

Limitations on voting apply to the final action, the final decision, and so at the committee level.

D

And at the advisory panel level or uh there there really aren't those limits, because it's.

D

Not really a decision making they're providing the advisory panels are providing advice for starters,.

D

They're not making decisions so that might give you you know it's worth thinking about.

D

Some sort of approach like that as to where do these conflict of interests provisions come.

D

Into place for deliberative bodies, you know I'm ignoring employees right now. Thank you.

F

I I haven't seen.

F

Anywhere that that the conflict of interest definitions.

F

Go down two tracks, one for legislative and one for judicial. I mean that seems like that. Could.

F

Get really involved number one number two: the state statute and how the courts have ruled.

F

Have been pretty clear, um I think if you were a planning board member or as eba member.

F

um You could you could be trained on the statutes and the court court.

F

Precedent to understand quasi judicial, to understand juror standard, to understand.

F

You know the need to act and think independently and partially it is a higher standard than the.

F

Legislative body, but I think I'm not sure we have to write a whole separate one for that.

F

um Maybe just some language like a sentence that says- and there are additional provisions.

A

For quasi-digital bodies in the rsas yeah I'll be an outlast bob yeah. I would think there's.

E

Actually, three tracks for you to think about: okay, quiz, our judicial legislative and employees.

E

The current ordinance rolls them together and uses the phrase officer or employee throughout.

E

Which just rolls them together and they really are the duties of an employee. Really, I think.

E

Different than the duties of a city council or a quiz education board,.

E

And so maybe an improvement of what we have now would be to find these things in. In those three.

E

Tracks and- and I would also add one other thing when it comes to employees uh almost ex entirely.

E

With some limited exceptions, employees of the city are members of collective bargaining units which.

E

Have, among other things, every collective buying agreement has its own disciplinary provisions.

E

Required to by state law, so that would affect where you could adopt as an ordinance with regard.

E

To employees, because I don't believe you can supersede that collective bargaining agreements.

E

By your act, whereas with regard to the quasi-judicial members in the city again,.

E

The legislative members, you know you can't you have specific authority to do that. So.

B

I have a question um there that might be a difference between quasi-judicial and.

B

City and elected- and that is um if someone does have a financial conflict but wants to.

B

Express an opinion about something because they believe it's the right thing to do. For the city.

B

um But then accuse themselves from the vote. Is that what happens there? Oh well! I think that.

E

Counselor cook began this meeting by describing what you're about to do as a challenging or a.

E

Daunting task and she understated the situation tremendously and that question kind of points out.

E

Here's here's the rule on that, the with regard to a legislative body member. It's not a particular.

E

An issue because legislative members are entitled to have positions and take positions and taking a.

E

Position doesn't require that you recuse yourself at all. You can you get elected because of your.

E

Position you can stay quasi-judicial, however, quite the opposite. You are not supposed to enter a quasi.

E

Judicial decision or no one, is with a preconceived idea of what the result would be or, as john.

E

Pointed out you really shouldn't even do it if you appear to have some, perhaps if you would appear in.

E

The mind of the average person that you will you know your your vote is in place already. Then you.

E

Shouldn't serve in a quasi-judicial capacity, and, if you think about it, quasi-judicial means like a.

E

Judge you know, and judges shouldn't be here in cases if they think the defendant's guilty. You.

E

Know the police got better things to do than arrest innocent people. So uh you know if you.

E

If you can't be like the judge and neutral, then you should recuse yourself now, if you're a quas.

E

Traditional member and you recuse yourself for any reason, uh the question then comes up and it's your.

E

Question all the time uh can a board of adjustment, member recuse him or herself, then step down and.

E

Speak from the podium in favor or against uh the application that caused them to recuse himself.

E

There is no clear legal answer to that question as of yet it comes up all the time we look at it.

E

All the time, so we know that the new hampshire supreme court has not given its instruction on.

E

What you have to do in that situation, however, in the city's legal department, we do have a.

E

Very clear recommendation that we always make, which is a board member who recuses.

E

Him or herself because of a conflict should not speak to the application before the board.

E

Because of the appearance, if you're the person who has an application and some.

E

Board member gets off the board walks around to the podium and then speaks against you.

E

You will feel that you've been unfairly treated because you'll feel that that person will get off.

E

That board has greater influence on the board than the average member of the public, and so to avoid.

E

That appearance of impropriety and the appearance that the board is not acting fairly because it.

E

Puts it'll put more weight on one of its own members statements than it will on everybody.

E

Else's statements, we invariably recommend in the city in the cities legal department- don't do it so.

B

And does that is fine now? Does that apply to a city, councilor.

B

Making a recommendation to a quasi-judicial board.

E

In my this is you know now: you're slicing it even finally, the uh I you know.

E

I think if a city council appears in front of the board of adjustment and says something or a mayor.

E

Should appear in front of the board of adjustment, it says something well that counselor or that.

E

Mayor has is gonna, be singing, is having greater influence than an average member of the public. So.

E

It's it's not a great situation from a conflict of interest analysis. On the other hand, you don't.

E

Give up your rights as a citizen because you serve on the city council. You don't give up your rights.

E

As a citizen because you're the mayor and you know, if you have a view on something, why shouldn't you.

E

Be able to say it so it's a competing interest. The council, of course, approves the members of these.

E

Boards, so you know, as I said, you're slicing it awfully fine, so I'm uh you're on a planning board.

E

And I'm a member of the city council and I voted to approve you and put you where you are and I get.

E

Up on a podium in front of you and say anything at all and you're going to listen to that, and so.

E

Yeah, I think that that challenge comes up in section b, which we're going to deal with.

A

Also section b talks about representing private interests before city agencies.

A

um And technically the way it's written currently suggests that you're not allowed to speak, and so.

A

That's that's another area where we absolutely need to clarify what is allowed and what is not.

A

Allowed and it needs to be much clearer because when I read this, um I think oh, if I have even.

A

Something that I need to do to my home and because I sit in the historic district I.

A

Can't do it because I can't go to the htc because it says I should not represent private interest.

A

Before any governing or land use regulatory body, so while I realize that that's not true.

A

The language isn't clear here, and so that's where we need to be. We need to be careful and.

A

More specific, so I think we're going to get to that. I do want to caution, though,.

A

um That it is about eight minutes to 11, and I want to make sure that we have a chance to.

A

um With mr nice here to reflect on his use his insights appropriately because.

A

I don't want to ask him to have to return to us on another occasion.

A

um So um unless you want to yeah with that said, um mr nice, would you mind reflecting.

A

For us on particular challenges, you see in the ordinance that you have found in your review.

D

Sure I'll start with 1a and I think somebody touched on it, but we didn't talk about it when.

D

You, when you talk about private interests, we're very clear in our world that private interest.

D

Includes those interests of your spouse or mine or child, and I don't know that that's clear in.

D

Our ordinance as to what that means, I know there is some not clear in our own there's some case law.

D

That talks about spouses, but you might want to clarify that you already mentioned one b, which.

D

Is a little it's unclear, so I won't go over that. I was struggling a little bit to understand.

D

um I think section d disclosures of interest and legislation because.

D

It's not clear to me what this means. It says a counselor who has a director, indirect, financial or.

D

Other private interest in any proposed legislation shall publicly disclose the nature and extent of.

D

Such interest, but it seems, like other sections of the ordinance, say that you should be recusing.

D

Yourself, if you have those this sort of, implies that if you disclose them, what happens? Do you then.

D

Have to recuse yourself, it leaves it an open-ended question to some extent, one e is the same way.

D

When you get down to f and it talks about gifts, I'm just a little surprised that.

D

There's nothing that says what you could get in total right as long as any guest is less.

D

Than a hundred dollars, can I give you 99 bucks every day of the year for the rest of the year.

D

Obviously not, but that's not what the ordinance says and I struggle.

D

To understand what the last sentence in that section is supposed to be referring to I've.

D

Looked at it a number of times I mentioned in my letter earlier it, it's not clear to me.

D

The paragraph is talking about gifts less than a hundred dollars, and then it says this provision.

D

Does not apply to campaign contributions of less than a hundred dollars? Well, why would it.

D

Right, it just doesn't seem to make a lot of sense.

D

I I don't want to take up all your time. I could always just write you a little letter.

D

On some of these other things that are in here, there was another one somewhere. Oh.

D

So I'm a firm believer that these financial disclosure statements, which are identified as.

D

Being a public record- and I assume that means if you want to go down to the city clerk's office,.

D

You can look them up, I'm a firm believer that they should be on our your web page.

D

On your city, council, web page under each council member, they are written in such a way. They don't.

D

Disclose a lot of private information other than your relationships, much like we do, and it.

D

Would make it far easier for the public to know where they are rather than to have to go down.

D

And make an appointment to see the city clerk to read them. I'm also a little surprised that.

D

Says they're updated annually? um Well, you know what if your financial.

D

Relationships change dramatically on july 1st. Does that mean they remain a secret until the.

D

Next june 30th, so I would recommend that you have something in there that says if.

D

There's a change, you know that has to be updated within a certain time period.

D

um The elect going to the election candidate, financial disclosures.

D

I I don't really have much to say here, except to note that in the last election uh I reviewed the.

D

Financial disclosure forms which were filed seven days before the election, and there was.

D

Only one that reported expenditures is required by this provision. They were all reported afterwards.

D

But it says the reports must be filed a week in advance and I think that, to be honest, was.

D

Because of the forms you provided did not have a line to report expenditures on them, so the only.

D

Person who did that was uh the pack gerald duffy's pack reported expenditures. I believe in advance.

D

There might be some others, but I in the interest of time I can write them out.

D

Just as easily so you have them on paper rather than try and take them from notes.

A

Thank you, and you know the only I was going to make a comment. You know we talk a lot about the.

D

Difference between legislative and judicial and the language in the city charter kind of obviates.

D

That I think that differentiation here, which um becomes an issue because I would argue that.

D

You know the language there that talks about [applause]. I wanted to quote it.

B

And now I can't find my page seven starts. Oh yeah.

D

Anyway, you know the language in the city charter that talks about more financial interest than any.

D

Other person in the city, well, you know, I think there have been a number of instances where there.

D

Have been decisions made by council members where they had more of an interest in it than me? I have.

D

No interest in whatsoever in you know outdoor dining in city streets. All right- and I know you.

D

Make the argument? Well, every other restaurant owner has the ability. Well, that's not well.

D

The discussions that were held earlier this spring suggested that wasn't true, because the.

D

Council was picking which restaurant owners would have the ability to do that, and you know I I think.

D

You got to be careful about that. You know the public has a right to expect that the decision.

D

Isn't being influenced by um what your personal benefit is, and there are some other language in.

D

There that you know in some of the places uh that I think you got to be careful about as.

D

Well and I'll I'll highlight those later, I don't want to use up here. Last two minutes: oh no! No! We.

A

Have more time we're just I, I wanted to make sure that we didn't take up too much of your time that.

A

Was my biggest concern, I didn't want to ask you to spend your whole day with it. Yeah [laughter].

A

But I do really appreciate you sharing your insights because it's it's really helpful to us to.

A

Get your perspective because it's unique, I think, um and um I appreciate all the experience you have.

A

In dealing with this, um thank you I might head out here shortly. Just so, you know: okay, that's fine! I'm.

E

Sure the purpose of this question will be obvious, but do you uh work in the city? Are you commonly.

E

Available I work from home. I do yes, I work, you know I work in newburyport normally, but I'm only.

D

Down there thanks to covet only three days a week now so I'm readily available at home. Well, you may.

E

You may hear from somebody here again thank you very much and I'm I'm happy to share what I know.

D

I don't think it's all directly applicable, but I think there are some things that might give you.

D

Ideas to think about well, my personal view is, and most of what you said is pretty applicable.

E

It was very helpful. Thank you. I agree with that yeah. Yes, it's very helpful, really appreciate it.

F

Thanks, I'm gonna thanks for your time, yeah I'm gonna head out. Thank you. Thank you.

A

We thought um I want to know the preference of the committee we can go back to to dealing.

A

With the ordinance directly, we can go on to other business. We do have a hard stop just so. Everyone.

A

Knows here today because there's another meeting in here at noon, so we want to make sure that we.

A

um That we finish in a reasonable amount of time today, um so um I I did want to circle back to.

F

To [music] um gifts and favors, okay,.

F

um Gifts and favors, so that's section, one f under one: okay, that's one 802 f,.

F

Would it be illegal.

F

For an officer to accept a trip or payment to for a vacation.

F

I would read it as yes, it would be a label.

F

Student bob's take well I I can you say that again, we've been hearing a lot in the news about.

F

Public officials getting fancy vacations and trips transportation, oh yeah- um and you know.

F

Well, he's just a good friend of ours, but you know what do you talk about on those trips.

F

And is it a special privilege that you're getting because of your public office and.

F

Is that going to color your um so I just wondered seems like we should have clear rules about that.

E

Well, it strikes me that the key element is from whom that gift comes uh all of us. I'm.

E

Sure, at least, I hope all of you receive gifts of over a hundred dollars in value all the time.

E

uh And it's not generally violation of anything uh unless.

E

That gift comes from a person firmer corporation which, to your knowledge, is interested directly.

E

Or indirectly, in any manner whatsoever in business dealings with the city exactly.

E

Okay, and if it is, then that's not a permissible gift under this ordinance.

E

And there's a level of subjectivity to that I mean you know it's it's what you.

E

Know when you get this gift from somebody, do you know that they have an interest in.

E

City business uh at all, and if the answer is yes, then there's a problem.

F

Right so you know a developer says.

F

I'd like to host youtube for a weekend at my vacation home in nantucket, or something.

F

And that developer has business before the city. That's entirely hypothetical, but well that's not.

E

A uh that's not a made-up situation when I was in another city working for another city in the state.

E

Two members of legislative body uh were convicted of accepting vacations, uh expensive vacations and.

E

Yep, well, there you go. I think it's a different scenario altogether, if you say, for example, the.

A

Chamber of commerce invites the entire council to attend one of their events.

A

Where the ticket price is 100, but invites us as guests, then, um because they want the council there.

A

Rather than having any direct influence, then, is that a gift of a hundred dollars or more- and I.

A

Think, that's really a you know, that's a question: do they have anything pending before this city.

A

hmm I don't know they're they're contracted with the city, so then you have to you know.

A

This is, I think, where you, the call, is a difficult one. You know, because the.

A

City does pay my understanding a contract with them for um services around tourism.

A

Can you accept that gift.

A

um Do you need to disclose it.

B

We we get gifts from organisms, local organizations in the term, in the form of.

B

um Free access to a performance or something and those performances.

B

That includes your spouse, so those those performances may exceed the hundred dollar thing.

B

It's and we get them all the time right.

B

Know how to I I I've gone to some and I keep wondering is it well but as far as I know, they.

B

Don't have anything in front of the city, so I assume that's okay right. How is someone to.

A

Determine that I guess, is the question. Well, I would think if you know there is something then.

B

You know right, but if you, if you don't know of what.

B

It doesn't seem to be um that it's for influence, if you don't.

B

Know they have something before the city, but I don't know that that's.

B

They have in front of you has been unchanged for 40 years that I can testify probably longer than.

E

That and I feel that the reason that it hasn't changed in 40 years is not because it's perfect.

E

Quite the opposite: there's all kinds of issues and problems in there and have.

E

Already been discussed here this morning, I think the reason it hasn't changed in.

E

40 years is, it is so difficult to make the decisions you have to make.

E

To recommend these changes, and that too has been very clear here this morning, so.

C

Yeah, oh, my god, no and- and there is we hit the pause button on that note.

A

I will say that you know the legal counsel has been um very clear that this is quite a heavy.

A

Lift yeah to go through all of these and to change that. But I do think that there's some definitely.

A

Some improvements that we can make at least around clarity in a few places, um and if, if gifts and.

A

Favors hasn't been changed in a number of years. We can also determine if that hundred dollar.

A

Limit is where we want to stay. That is where we stayed. I should note on the donations policy.

A

100, so that might be exactly where we want to be, but um that is I probably open for discussion as.

A

Well, yeah, all right all right, so it's at the preamble ideas is really a useful one and and.

B

I would agree that um session a is. It is a terrible piece of something there.

B

And maybe just be eliminated and replaced by a preamble.

A

There are many areas here that I would like to that. I want us to go through and discuss at length.

A

The disclosure process, I think, is important, which is not clearly specified here. I think this is an.

A

Area where mr nice provided some great insights around disclosure and ways to do that, and and.

A

We need to maybe consider different processes for elected the legislative body, quasi-judicial bodies.

A

And for employees around disclosure, because noting that this impacts all but currently we don't have.

A

um We actually don't have a form or anything that anyone has to submit requiring.

A

Their disclosure, so, unfortunately, with the way the world works today, you might not know.

A

Someone's financial interest in a corporation or an entity if they don't disclose it.

A

And uh there is also this question that we do need to definitely go back and clarify. I think that.

A

It's up here on um in in section b, um representing private interests. What exactly does that mean.

A

um You know from reading it, you know it to me. It was suggested no city, council members.

A

Should be appearing before a land use board, but then, if it's an issue related specifically.

A

To their own property, maybe there's a carve out there that we should consider.

A

um Or if they're a directive butter to a project, you know, but that would be you know a question.

A

That we need to talk about and determine whether or not that makes sense, and we also need to.

A

To decide how this will be enforced, is it enforced in uh through the same process the ethics process.

A

You know because this sits in the middle of the ethics ordinance right so.

A

um It's it's. Somebody then, going to file an ethics complaint against someone who speaks in front of a.

A

Quasi-Judicial board: it's another question that you have to ask: um I think that when we get.

A

Down to the bottom, we have some areas where we're doing really well incompatible. Employment is one.

A

Of the areas where portsmouth is ahead of the curve compared to some neighboring.

A

Cities where there are individuals serving in dual roles with the schools and on the council.

A

So we don't have some of the conflicts that of our our neighbors have.

A

And then, especially when we get to conflict of interest around mandatory financial disclosure.

A

This is an area where we probably need to work with the city clerk to clarify forms.

A

To make sure that the form meets the ordinance where it is, and so disclosures are occurring that.

A

Should occur when it comes to election, and then we also have to ask if we want any additional.

A

Disclosures around elections to make sure that we're following the intent of the ordinance.

A

You know one of the challenges here is that the ordinance was clearly written around financial.

A

Disclosure to make sure people are declaring large gifts, but then, if everyone is telling everyone.

A

To make a 99 donation, so they you don't have to declare it then does that really fit the intent.

A

Of the ordinance right, so it's a loophole is, is what I would say in the ordinance.

A

So um how do we fix that challenge around elections as well? So if we, if we desire to.

A

So I think that's where probably we need to go next.

A

If that makes sense to everyone at our next meeting, if we want to kind of go through.

A

Those boxes and the things that councilor tabor definitely highlighted for us today to address.

A

um Do we want to start there at our next meeting so that we have a chance to discuss a few other.

A

Items today sure, okay, okay, so um I'm going to go back to our agenda. uh The next item on our.

A

Agenda is administrative ordinance, language cleanup and the reason I brought this up is.

A

We started this process last fall and um and we, when we did so, we were trying to find a way.

A

To help fix some of our our term challenges um around uh rotation of terms being off sync.

A

um With what is written in the ordinance um specifies in those terms, uh but there's some.

A

Specific challenges that we have to deal with legally at the state level around our judicial.

A

Bodies, because the state ordinance governs the way those are appointed, and it is my understanding at.

A

This point, and I would appreciate legal counsel's correction if I'm wrong, that the only way to fix.

A

A rotation on a quasi judicial board at this stage is to ask for a decision from the court.

A

A remedy from the court to fix terms and that's how it's been handled in other jurisdictions.

A

um So right, appointment in terms is established by state law, yeah.

E

However, um the method of appointment is left to local legislative body.

E

So the city council does have some room to maneuver uh in uh and- and I think there are.

E

Probably two different ways that you could exercise that, and that is uh first you could.

E

You could adopt orders which describes your procedure and on a simpler and easier level.

E

You can also adopt council rules and council policies that, as long as counselors are.

E

Will follow them? I would could achieve the same result in terms of staggering terms, for example,.

E

Mayor is critical in this analysis in either case, um so you would certainly.

E

Want to get some input input from either past the president or future mayors.

E

Because if the mayor is, is the key person and not making these decisions.

A

And this was one of the challenges. If you will remember, we did bring in past mayors in january.

A

To discuss this um here- and um there were some differing opinions on where we should be with.

A

Regard to trying to change appointments or make these recommendations around you know shortening.

A

Terms of new appointees or not, um and how that weakens, the power of the mayor, which.

A

Is a challenge uh for the council, um and so at this stage we need to kind of decide how we want.

A

To move forward with these recommendations, one of the things that um I have kind of quietly started.

A

Doing is recommending to certain committees that they think about their kitty committees that are.

A

Not quasi-judicial, if they think about the fact that their terms are not staggered and whether.

A

Or not, they want to address that themselves as a committee with a request to change the end dates.

A

On some of their terms, so that they have a healthy stagger, which the committees can request to this, I.

E

Would think actually most of them are probably not quasi-judicial traffic safety, trees and greenery.

E

He could do that. Yes, I guess I have the question about. Oh, would it be cleaner.

B

To have the court do it, or is that, um and what would that entail? It would take it off of us for.

B

One thing, um but is that, is that a in it kind of an onerous process? Well, the clerical clerk would.

E

Only have whatever authority the city, council or the city manager gave to the court, so you have to.

E

At least in some rough way describe what result you want to see some things the city manager can.

E

Do the clerk works for the manager? I thought you said the court yeah the court yeah. I think.

E

In terms of appointment, I thought you, you said the clerk keeps that list yeah. No, no. I meant that no, I.

E

Would definitely not be cleaning to have the court do it, because you cannot control the result? Okay,.

A

Gets there are definitely challenges around having asking the court to do it? You don't know.

A

What you're going to end up with, um but at the same time yeah. It removes the responsibility from.

A

The council to try to fix this challenge, um and it would then not be subject to the same.

A

Level of legal scrutiny because the court had made that decision when you're sitting.

E

Here, as members of this committee and frankly when you're on the city council, um whenever.

E

Complicated changes in laws or procedures come up that you would want to see accomplished. The.

E

The process that I've recommend is that you state in sort of just plain english.

E

The result that you want and then you know you have a legal department that will will.

E

Find the language to achieve that result for you and find a method to achieve that result.

E

So uh if you just kind of with regard to this, for example, if you just state what result you.

E

Want to have, then you know we can find the best way to get there if there is a way to get there.

G

B

In some ways pretty straightforward: we want to see that a good stagger right is there's continuity.

B

On all the boards and commissions cook- and I have discussed this at.

E

Great lengths yeah, I'm sure, and I've really tried to come up with.

E

You know creative ways to get to that result um without having to march through the appointment.

E

Process for every single board, commission and committee and change the ordinance.

E

For every single one, which maybe you would have to do that, but we have try to come up.

E

With different ideas, I know I have personally tried to come up with them and talk with her.

A

um I think that the challenge here is trying to make sure that we don't.

A

At this stage, um by making any changes here weaken the power of any mayor, in particular,.

E

um Yeah- and you know one of the ways that you could consider doing- it is.

A

um Putting the ordinance in place so that you know that it's adopted as of january 1st of next year.

A

So that we're we're anybody who's running for office now and running for the mayoral.

A

Hoping that they become mayor knows that this is in place.

A

Whenever they become mayor so that they're, aware of it, because it wasn't.

A

In place for the last election, so no one would have been aware of changes.

A

um I'm kind of mindful of that, but again I think it's also. It's also you're still going up against.

A

The rsa, no matter what you're doing, and I think it could be personally, I think it could be challenged.

A

I think that anybody um who was looking at this clearly could say you know it's it's unfair to.

A

Anyone coming into office to tell them that they need to shorten their appoint appointment terms.

A

um So what might be the solution is, is that we don't address quasi-judicial boards.

A

Here yeah since there's covered by statute yeah since they're covered by statute. But we address.

A

Committees which are not covered by statute, and then we fix, I think, the most egregious.

A

One is actually parking traffic and safety right now, where everyone rotates off. At the same time,.

A

It's very unfortunate. The idea of losing people who've served on that committee together for.

A

Many many years losing their expertise. All at once is a little daunting, so we might be able.

A

To just to set it up for committees, and that would not be subject to any kind of.

A

Legal challenge, because the council would definitely have the authority to do that.

A

um And and I'm concerned about making sure that we have additional work, that we have.

A

Done in this administrative ordinance move forward the changes around asking everyone.

A

To appoint a chair at the beginning of each calendar year, I think, is important.

A

um And just for functioning, I think changing the language so that we are mindful of being.

A

Inclusive here and we changed all the chairmans to chairs. I think that that's also helpful.

A

Using inclusive language, but I want to know what the the feelings are here among the committee.

A

Before we move forward with this.

A

So you'll note that this is planning recreation board could be subject to this. This is what's.

A

Different library, board of trustees.

A

But zoning, not zoning, not planning, not htc,.

A

um But then you once you get to article four, I think every entity would be could be subject to.

A

Appointment term adjustments right.

A

Right so without having any legal challenge right well, I think it makes sense to.

F

Fence out the land use boards and those covered by statute, I think cemetery has a statute.

F

And then focus on the the city committees.

F

And I I certainly agree that there should be a healthy stagger in the terms.

F

So that they don't all come up at once and then we just need a mechanism to get to that.

B

I think the problem is, of course, that the land use boards are.

B

Probably the most important to have a healthy stagger and.

B

So where do we go with that? You know right push it off to the next council to.

B

You know you know we could refer this back to legal, the legal department and ask for them to.

A

Look at it one more time see if there's a way, give them until july say to look at it.

A

And have it come back here in july? That seems reasonable sure one issue that we've had, of course.

E

Is that the scope of operations of the governance committee is so broad covers? Really the whole city.

E

Government that different members of the city legal department have had different parts of it.

E

And uh and uh so therefore, the left hand hasn't always known what the right hand is doing even.

E

Within the city legal department, because they're different people- um and it this stagger thing that.

E

We're talking about now is was one issue, that's kind of gone around a little bit. I know I was.

E

Involved in it pretty extensively at one time and then I wasn't and now I think maybe I am again.

E

Well, you retired yeah, that's right! Yeah! I tried every time it really.

E

Did throw a curve at a lot of things, but uh but sure I uh the idea that.

E

I've been working with you've heard some reference to it is that maybe by.

E

That that delineates, the steps or the process that the mayor would have to follow and make an.

E

Appointments, it might be a kind of a simple way to create a stagger that ran across the.

E

Whole, you know the whole panoply of boards of commissions or whatever.

E

Yeah- and I was when I was thinking that way and talking with councilor cook about that.

E

Really the whole point was to try to do something straightforward and simple and avoid you know the.

E

The death match through every every what point: every commission and committee and board.

E

That's still the way I'd like to be able to do it. If we could do it.

F

So this is a dumb question.

F

How did we get to where so many of our land use boards.

F

Were appointed at once, as I recall, it was that.

F

A spot opened prematurely and instead of appointing for the remainder of the term,.

F

They once were made for full terms is that.

A

That's my understanding is that um that people were appointed for full terms versus fulfilling.

A

The end of a term- and um that has been a challenge to deal with because I think.

A

Initially, my understanding and uh legal counsel would correct me if I'm wrong my understanding.

A

Is initially that was done because the rsa defines a term as three years it doesn't doesn't have any.

A

Language in it around fulfilling the end of a term or not telling the term before being appointed for.

A

Full term, and so anybody who was appointed was given a full term even if they should have just.

A

Been fulfilling the end of the term, so we were thinking of it as individuals serving not places.

A

And so that's one of the the things that I think at the beginning, we're starting to talk about is.

A

Rather than having you know, an individual has a term, it's there's a place. One has a term place.

A

Two has a term plus three and um and those terms are defined and that individuals fulfill them.

A

But in court, if somebody challenges it, um I mean they could come to court and say I wasn't given.

A

My full term of a point of via the rsa, and I think the court has not been really clear.

A

Yet on on whether or not that person would be the end of it, a full charm, if somebody decided.

A

That it was important enough for them to go to court um around not getting a full.

A

Term, a three-year term. I wonder if something has to happen with the rsa rather than here.

A

Well and then the question is also at the council level: you know you could you can make.

A

The policy like an ordinance and then if somebody challenges it and it goes to court and you know.

A

Then you might have a clearer understanding of rules of the thinking around applicability here.

A

So I guess there's that as well, sometimes the the cities drive right, the interpretation or getting a.

A

More thorough interpretation of our court decision or state legislative action could certainly.

E

Clarify the situation, but I think the principle that we're trying to follow is that decisions.

E

That'll affect the city of portsmouth ought to be made in the city of portsmouth if at all possible.

E

So the council should make the decisions right. So if we recommended to the nine city councilors that.

F

The mayor uh in the in the event of positions on our land use boards that open up.

F

Prematurely before the end of the term, if we said we recommend, we vote a policy that the mayor.

F

Points somebody to complete the term yeah. We would be within our rights to do that. Well, at.

E

Least at this point, because there's no law saying you can't, I think, you'd believe in your rights to.

E

Do it and actually would be pretty easy to enforce? Because if the council had a policy describing.

E

um The procedure or the rules, the mayor, should follow and make an appointment and.

E

If the mayor did not follow the council's policy well, most cases, the council has to.

E

Approve that appointment, so the council simply wouldn't approve the appointment. So there is an.

E

Enforcement mechanism, in most cases, hmm so the problem is, is we now have terms that are defined.

B

As the duration of people, so we have to yeah, we have to define.

B

That differently, yeah, I'm sure that the way councilor cook described this problem as.

E

Having arisen, that's the way the problem arose, and so there should be some way to fix that.

A

So if the other counselors are willing, um I would love to entertain a motion to.

A

um Bring this topic to, I guess, suspend discussion until legal counsel has the.

A

Ability to review this again to bring it back in july for further discussion.

F

Legal analysis, yeah, do I need a motion? No well we're good, probably yeah. It might be.

F

Helpful to have a motion just to say um that I would move that we.

F

F

Question of how do we achieve staggered committee terms.

F

Back to legal, um [music] with the goal of a way to.

F

Have our boards and committees have staggered terms.

F

Second, all in favor, that's right! Is there any further discussion? Okay, all in favor, yes,.

E

All right, okay, so here's my thinking on it as of right now, almost all appointments in the city are.

E

The mayor makes the appointment with the approval of the council. There are some different. There are.

E

Some which the council actually makes the appointment and there's some that don't.

E

Require council approval, but the vast majority mayor points council approves, so that would be.

E

I think the direct way to approach this to you know describe a an appointment policy for either.

E

The mayor or the council, whichever it might be, that makes appointment to follow this. Whatever.

E

This is and uh and then and then the council would be kind of the enforcing mechanism by.

E

Just simply not approving appointments that aren't consistent with that policies. That's.

E

The current thinking anyway, that I have and I'll I would of course talk with kate about it.

E

Let's see we can come up with the problem. Is that if you have, because of what has happened, all terms.

B

Are ending at the same time, yeah you're, going to have to some initial true up period period.

A

A period that's always been in question a challenge around it is, you know who who subjects.

A

Subjects who to that and how do you do it you know, do you um do you ask the a mayor to do it on their.

A

Own, do you direct the mayor to do so? um Do you who does it apply to? um I would think if we had steps.

F

In mind that we, as governance, recommended to the council, saying we don't they all come up at.

F

The same time that we need continuity on these boards, we need to get better back to a stagger.

F

And we recommend this this and this to do to do so.

F

And the council could approve or deny that recommendation.

F

It would I dispose beyond the incumbent on the mayor to implement it or or no.

F

It'd, be a council vote, it'd be a full council decision, so.

A

I'm intrigued by this idea of a council policy versus changing the ordinance.

A

So um I'm eager to hear back from legal on how we can proceed with that yeah yeah.

A

So um or if we should proceed with that, if they find an alternative so.

A

um With that said, I think I'm going to move on to blue ribbon committee. Conversions update.

A

um I brought this up because when we were discussing committees um there were several blue.

A

Ribbon committees that I've highlighted here for everyone who um who should potentially consider.

A

A conversion to more permanent status because of the length of the term for which they've.

A

Been blue ribbon committees and that they have an ongoing mission with the city. I'm happy to report.

A

Today that the sustainable practices blue ribbon committee is moving in this direction already.

A

I'm working on some language that I think that they will bring to the governance committee so.

A

I wanted everyone here to be aware of that that they're working on that language- I don't know if.

A

It'll come directly to us. It might actually just go straight to the council depending upon where.

A

They decide to send their request, and also arts and nonprofits committee and the cultural plan.

A

Subcommittee are in discussions around a more permanent status for an arts, commission or arts.

A

Cultural arts and culture, commission, or something to that effect mostly to implement the result of.

A

The cultural plan subcommittee, when there's a new cultural plan to implement for the city so.

A

um They're also discussing uh what that would look like and whether or not to draft an ordinance and.

A

When that should come into effect, so so there are two on this list that are currently discussing.

A

This I'm raising this also because I know counselor tabor sits on the citywide neighborhood.

A

Committee, um so I thought maybe I would ask here if council taper would be willing to discuss this.

A

Discuss this with them yeah- and this has been a comedian in existence since mayor sorel, so.

F

F

De facto, my recollection is that's why she became mayor, surround yeah. That's right.

G

So maybe only she had those lists, I love it. So maybe it's time and um the african bearing.

A

Grounds stewardship blue ribbon committee um and sister city blue, ribbon committee.

A

um Both we have not approached yet. I believe that the assistant mayor serves.

A

In a role on both of those is my understanding, so um I would. I would think that it would be okay, I'm.

A

Going to reach out to her directly, if that's okay with everyone here um to see if she would approach.

A

Them and find out what the preference is and and for those two, all the other committees that are.

A

Listed here either have a discrete task ahead of them, and that is time limited or they have not.

A

Been around for a very long period of time, yet to be in a position to make this call the one I think.

A

About particularly around that is the safe water advisory group um and there's always a question on.

A

Portugal, the portsmouth energy advisory committee, what role it would like to pursue um after after.

A

A potential launch of of community power, so so um the others, though, um are very temporary in nature.

A

So for now, for now and hopefully we'll see what what how their work comes to fruition.

B

That's right, yeah! So that's um that's where we are with blue ribbon committee. Conversions.

A

um Unless anyone else has something teres there right um parks update, I am working to try to set.

A

Up another meeting of the uh leadership that we had here to discuss, parks by early may.

A

So that's the current goal is to set up another meeting for them by early may um and I will keep.

A

You updated, if I, if I hear anything otherwise, but then we should have an update for them from them.

A

Hopefully, by mid-may or so um with that um I'll move to public comment, is there any public comment.

A

And it doesn't appear that there's anyone on zoom either.

A

um Announcements just next discussion, we'll continue conflict of interest.

A

April 24th and if we have any of the blue, those blue ribbon.

A

Committee, conversions that come to us we'll discuss them on april 24th.

A

Are there any other announcements thanks? um Could I make a just a snip, um so I'm thinking.

E

About the work of the governance committee, it's, uh as I said before, pretty broad in scope and.

E

Even just in today's discussion, if things have come up which uh might call for a charter change,.

E

Which might call for ordinance changes and which might call for rules and policy.

E

Changes all recommended by the governance committee, um so with that in mind, I wanted to.

E

Put a timeline in your head: if the governance committee wanted to recommend charter changes,.

E

Then uh the the fastest way the charter can be changed um is through council action recommending.

E

A chart of change uh which chart of change would have to pass by referendum vote at the election.

E

And I, as a practical matter, what this means is: if the governance committee want the recommend.

E

Charter changes: you basically have to get that to the council by late summer and it's pretty much.

E

The beginning of summer now so that clock is going to run kind of fast on you. uh The second thing.

E

That you might be recommending- and this is I think, almost certain- is ordinance changes to the council.

E

And in order to get ordinance changes adopted by the current council, you you need to get those.

E

Those those proposed or recommended changes to the council sometime in.

E

You know I mean technically, it could be as late as november, but these items are going to call for.

E

Some discussion and debate it may take some time, so my recommendation is, if you are going to have.

E

Ordinance changes particularly on something that's potentially controversialist, conflict of interest.

E

That you have those proposed ordinance changes to the council in the early autumn, maybe september.

E

Something like that in order to have the action by this council and then the last thing that was.

E

Discussed about potential changes that you might be recommending our council policies and rules.

E

uh Council policies and rules can be adopted in one meeting of the council, so you can wait later.

E

In the year to make those kind of recommendations and still have those actions taken by this council.

E

And uh so just so, you have something in your mind to be thinking about the work ahead of you.

E

That's what I wanted to say. Thank you. I appreciate that. That's something that we.

A

Need to be mindful of yeah right now so with that said, is there a motion to return? um I had.

F

Just one administrative request: I think that we got a printout of all of the documents relative.

F

To conflict of interest does that exist as a pdf somewhere? If I could get that.

B

um Is that this I just put it. What you had on mine is what it is. I printed it out for myself. So, okay.

F

Also, I can sure you sent it to us as chairman I I did. I can um send it again. I believe it was.

A

Attached it was attached to the last meetings, yes, um documents document and they're all and.

A

For the public at home, all of these things are available online for everyone to see.

A

um You can pull up our administrative ordinances, our council rules, our city charter, so all of the.

A

Information is available online, but I will make sure that counselor tabor has. Let me look, I think.

F

I can look it up, then it was not within the last agenda, but it was last agenda. No, it was separate.

A

It was separate, yeah yeah, it says courtesy to the committee. I put it together in in one packet, so.

A

That it wouldn't be, oh, it was the march on email. So let me just go through your emails.

F

To us and I'll 24th meeting, yes, yeah! Yes, that's right in there! Yes, so um yeah! So we have it's a.

F

Good document- and I let it slide off my desk into the trash, I will make sure that you have it so.

A

um With that, can I get a motion to adjourn so move? Second, all in favor aye. We are adjourned thanks.