City of Portsmouth, New Hampshire Governance Committee, 28 Feb 2022

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2.28.2022 Governance Committee

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The light flashed and now it's not recording in progress.

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Welcome I'd like to call this meeting to order, we will start with a roll call.

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um Counselor lombardi here counselor tabor here and I'm counselor cook and I am present.

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Today, we're going to be discussing two issues before governance. First.

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Is the city council rules of procedure and then second we'll be discussing the ethics process.

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As far as the city council rules a procedure, we have several items that that we would like to.

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Cover first rules, 41 and 43b, and then looking at the other city council rules for further revisions.

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On rules 41 and 43b, which we started discussing in our last meeting, we had some recommendations.

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Initially, on 41 from staff on a address to the public- um and I was tasked with reviewing that.

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Rule I did not see a problem with the recommended changes. I will read those changes to the committee.

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Rule 41 read, members of the public at large may address the council on any issue being.

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Discussed by the council after a motion to allow same has been made by any council member and.

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Passed by majority vote, comma, provided that no person shall speak for more than five minutes.

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Period that was it um the recommended changes that it should read.

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Except for public comment sessions and public hearings, comma members of the public at large.

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May address the council only under a suspension of the rules. uh From from my review of this rule and.

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A few discussions that I've had it seems that this is current practice and it it just changes really.

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The wording of the way this address to the public rule is made. It takes out the five minute limit.

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That said, that does not remove the authority of the chair or the mayor who's. Usually the mayor.

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Sometimes the assistant mayor to stop somebody if they're speaking beyond a reasonable limit.

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So, and to also give that guidance when somebody speaks, but by and large, this does not change the.

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Rule it just clarifies it that it requires suspension of the rules, which is the current.

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Practice does anyone else have any other thoughts from the committee? No, I agree.

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Councillor, taylor yeah: we discussed this um in the council meeting and.

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There are times that the council wants to hear from somebody who especially has special.

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Knowledge and is in attendance and I think, that's valuable. um I raised two small concerns and I'm I.

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Would be fine with the language too, but I thought the original language by allowing a majority vote.

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As opposed to suspension of the rules, which requires a two-thirds vote, made it a little.

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Easier for the council to listen to somebody, and I thought there was merit and five minute limit.

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But you know those are small points.

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Perhaps I'm just getting to be too conservative about changes when they have.

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I think these are completely reasonable points. Counselor tabor.

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The so council lombardi do you have any other reflections beyond no, I just thought that.

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Those changes that were recommended were appropriate: okay, okay, so.

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This is, I guess, goes to a bigger question. The current practice of the council is to have a.

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Suspension of the rules and allow someone to speak, even if that isn't the way the rule is written.

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And so I guess we have a question around um practice, whether or not we should defer to.

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Current practice or defer to our rules and enforce our rules versus current practice.

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Standard practice of the council, we have just been in the practice of suspending the rules, um and so.

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Does does the city manager have any ideas around practice here? I I don't and I don't have the.

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Benefit of of many years wisdom on this, so I think it would be prudent for whatever the governance.

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Committee thinks to recommend back to the full council. Is your whatever your pleasure is okay,.

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I think it's interesting because the governance committee hasn't had a discussion yet about.

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Practice versus uh preferred practice, so we have. We have certain practices.

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At the council level, things that we've just always done a certain way, even if they don't.

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Follow our rules really directly, they don't it's not that we're somehow abrogating the.

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Rules because if you suspend the rules by that nature, you're still getting past a majority vote.

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And people generally do not speak more than five minutes. So in some ways we've been following.

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The rule, but without intentionally following the rule, there's no intentionality behind it.

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So the question becomes, you know: is it better to move towards standard practice? What we've.

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Been following in the past or practice of the council, or is it better to try to shape.

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Practice of the council with rules that we think would be better practice. I think, in this regard,.

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Councilor tabor has a lot more experience than I do on the council.

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So you know I would generally defer to him as far as suspension of the rules versus maturity vote.

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um Because he has more experience with that.

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I would just add, I think, whichever we do there's great value in having this as part of the rules.

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The other night we had to discuss.

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The brick market project and extending their use of.

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City space on the streets, it was very helpful to be able to talk to their representative.

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And ask about whether this would need to be extended and, if so, how much.

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So it happens fairly frequently and it's useful.

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And so I guess my thought is have the least impediments to it possible.

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Yes, okay, so I'm not going to entertain a motion. We will leave it, as is.

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Because, currently there is no change, so we will leave it with no change. um Let's go to rule 43b.

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uh 43B is specifically public dialogue and I think, by making changes to public dialogue.

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We have to also reflect on public comment later, but so I'm I'm letting you know that.

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We will probably discuss public comment in the next meeting of the governance committee.

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Because we want to make sure we notice that uh public dialogue, um though the the goal around.

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Public dialogue was to set up a more informal manner of people, interacting with the council.

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So that people were who were not necessarily comfortable coming forward and speaking.

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uh Before the council could come into a more informal setting where they could still speak.

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With council members, unfortunately, it sets up a significant burden on staff for minutes, taking.

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Minutes in several different dialogue sessions separate dialogue sessions um and, in that sense,.

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It's very cumbersome to enforce right to know and make sure that we are in compliance with right to.

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Know- and there have been some court rulings on this and other venues around public dialogue.

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So in discussion, discussion with legal counsel, my recommendation was to.

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Change the format of public dialogue, so that we have no more than three council.

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Members present for public dialogue at any one time, which would eliminate concerns around.

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Compliance with right to know law, because we would not have a quorum of the council.

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And that we would make recommendations that the chair determine a rotating cycle of counselors.

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That would attend public dialogue. That way we could still have the format of public dialogue.

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But we wouldn't have to worry about taking minutes for a very informal dialogue session.

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And I came to this conclusion by meeting with a few different individuals around public.

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Dialogue who enjoyed having public dialogue session and discussions about who comes out.

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For public dialogue versus public comment, and it seems like a different set of residents.

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Is comfortable with public dialogue rather than with public comment, some people just really are.

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Not comfortable commenting before the city council, but they are very comfortable coming to a dialogue.

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Session so I don't want to discourage residents from taking part in discussion.

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So my recommendation was to remove all references to counsel public dialogue and just hold a.

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Public dialogue, so it's not specifically with the council, but it's with some members of the council.

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And to limit this public dialogue to when there is a an when there is no non-public.

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Session of the council prior to a council meeting because clearly that's a challenge.

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Currently, the way it's written, you have to have public dialogue every other meeting and we all.

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Know that the the city council, especially in dealing with various legal matters, has a lot of.

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Non-Public sessions before um regular council meetings, so um so we would only schedule them.

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When we don't have a non-public session and then in that case then again only every other meeting.

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Of the council, uh we would make sure that we had no more than three counselors present.

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And we would set up a rotation for counselors to attend public dialogue.

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And that would be determined by the chair. I thought one thing that was brought up in.

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Our discussions with council about the difference between public dialogue and public comment is that.

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People who come to public public dialogue tend to be seeking answers to questions.

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Whereas people making public comment tend to be telling us their opinions and so.

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There's a lot of value, I think in the public dialogue.

D

For for our constituency, I I would agree, I want to keep it and I think your thought of.

D

You having three counselors so there's not a quorum and requiring the heavy staff input.

D

It's a good one, if I may just to to add to that, if anyone's watching the meeting, the intent of.

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One of the three counselors would be to report at that meeting, the the gist of the public dialogue.

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Correct that would be the hope, so that people who may not be able to attend or might be interested.

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In what the the discussion entailed would be able to get an update, um I think that that's generally.

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The intent because counselors are have discussions with the public at all time. You know all the time.

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Through emails, through you know, meeting with people um outside of council chambers um and.

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So we're always hearing from the public, and I think we all bring that anyway to counsel so it.

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Would I would hope that people participating would then share insights learned from public dialogue.

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I I I I really like the solution of three counselors. I think that's wise.

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My experience with the public dialogue process that we had in the past.

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Is, um as you say, it is a different group of people, um people who come for public comment.

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Have a strong opinion they're aroused to come and tell us their opinion.

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um And that's that's a one-way conversation. That's golf not tense.

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And there's a there's a valuable place for that and we don't want to limit that.

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But in the dialogue format we can actually engage with citizens. Tell them facts that they may not.

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Be aware of they can alter their opinion or or maybe there's even some collaboration on.

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On something better, so I think there is value to it. I like the solution that you've got to.

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Have a three-person council representation and then give the summary at the end to the full council.

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So I propose at the next meeting of governance, I will bring language around public dialogue.

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Back to this group for us to review in detail, I have some suggested language, but I think that I.

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Should probably go through that with legal counsel and make sure that it it fits with.

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Any legal requirements that we're meeting those.

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And then we should also talk about public comment session because currently the.

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Way public comment is set up is that we have public comment at every council meeting and I'm.

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I'm not sure if we set up public dialogue if we should or should not continue public.

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Comment at this same council meeting, so we should probably have a discussion around that.

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To see what our thoughts are, if I could just add, our current language is around four times a year.

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For public dialogue- and I didn't want to lose sight of councilor denton's idea.

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That the public dialogue meetings could be not in city hall, but maybe in various neighborhoods.

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And that might be a nice combination if we have public dialogue.

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Where residents of one part of the city, ward, one or ward, five.

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Award three can actually engage with us, so I thought there was good merit in that, maybe that we.

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Maybe we can get some feedback on that at the next meeting. Okay, I will seek feedback.

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So those are mine, I'm going to pass off to counselor lombardi, okay, I reviewed the rest of the.

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Rules, there are a lot of rules and I.

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Pretty much found that the comments that were done by the.

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I believe the city clerk did most of them, but I'm not maybe.

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Informed by other people, too, were pretty good. I don't. I did not see anything that was.

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I thought needed adjustment. I had some questions um and.

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For example, in work sessions, I I wondered about the comment uh rule three. I wondered about the.

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Comment that basically nothing herein shall prevent a polling of the council or the talking.

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Taking of an informal vote on any matter under discussion,.

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I guess what's it's labeled as a work session, but it would have a quorum. So I guess I'm wondering.

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About that part of the rule- and I don't um maybe that's a legal question to ask- it- is a.

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Legal question and and to the to my knowledge that a work session, um you can't you cannot take a vote.

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You could go into formal session and hold the vote, but if you go into formal session or a.

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Regular session, you need to notice that meeting, so perhaps we can get clarification from legal, but.

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To my understanding, work session is completely informal.

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What I don't know is, if you, if it's possible to take a straw poll or to get a feel for how people.

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Think a particular item ought to go and I think we do that now, but um we cannot take a vote. Yeah yeah.

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Well, that was that was one question and.

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Let's see there was.

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um I I tried to look up in robert's. You know what, in rule 14 motions during debate.

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And um there was terminology that I needed clarification for, and that is.

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Basically, the one thing raise a question of privilege and I'm not quite sure what that meant.

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um Question of privilege, my understanding usually refers to, can I be excused for a moment.

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Just for personal reasons, so a question: usually someone will question, raise a.

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Question of privilege, if they need to use, leave a meeting used to restroom, for example,.

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Okay, at least that's the way it's I've seen it used all right past.

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Roberts didn't seem to say that.

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But so I guess that's just another question I had.

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We can have legal follow-up with this if these have not been run by.

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Legal, yet we can run them by yeah, also on rule 34.

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City clerk shall attend all council meetings, including work sessions and executive sessions.

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Executive sessions aren't defined in in normal boards. That means usually.

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The president, the secretary, the treasurer and the you know vice president, so I don't.

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I I don't know what an executive session is for the city council we can find out. You know that.

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I think this is a reasonable question. I think an executive session sometimes is also the.

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Meeting of the council without any staff present, so that could also be that could be.

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But that is one of those that probably should be defined somewhere yeah in our rule. So it's clear.

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What an executive session is, if we're we're making rules around executive session, okay,.

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I'm not sure where I mean rule 47 came about in 2018.

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And it prohibits anyone from serving more than 10 years. Is that right.

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Basically, is: is that something we want.

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Yeah, that's a question.

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So those those were questions and then.

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I had perhaps a new new rule.

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It has to do with unbudgeted expenditures, and I so I.

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Lay language is any motion that requires unbudgeted funds or for which there is an.

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Anticipated unbudgeted liability to the city shall require the consent of two-thirds of.

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Majority of members of the council present, and so that comes right out of the november meeting.

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And but I think that has had to be clarified more so I think that maybe a new rule.

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And then I know, counselor taber is working with ethical, the ethics process, but I suggest I made.

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A suggestion on rule number 21, no member, shall vote or serve on any committee or any question.

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As to which the member has a direct personal and I added ethical or pecu,.

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Pecuniary interest, so I just added the word ethical in that list and I would defer to.

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Counselor taber on that, because he's been doing work on the the ethics.

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And then the the the last thing I have is actually.

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Not it's rises out of something else, but I want to bring it up in this.

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Session but maybe perhaps um under other business, okay, okay, so um there's several changes.

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That we've recommended- um I think maybe the best process here- would be to get them into.

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Language with legal counsel and then and send around recommended changes to the governance.

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Committee for discussion um line by line at the next meeting that makes sense to everyone. Yes,.

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And I have one more recommended change to the rules which is going to require some.

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Discussion as well and it's around order of business, um I don't know if we're prepared to.

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um Share documents today or not, we can okay what you need. I have all of them.

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Okay, so I have a question on order of business and.

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Best practices with regard to uh agendas for councils.

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Councillor lobardia and I had a uh let's go with 228 22. First.

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That one yes so councilor lobarti and I in discussion with legal counsel.

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Found out that there are no really specific rsas around order of business, so.

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I started looking at various agendas for different city councils city commissions and how they follow.

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How they set up their meetings because the current order of business, in my mind, lengthens meetings,.

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Because it puts city councilors in a position that they feel they have to introduce material.

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Because their name is presented on the agenda with their material and so.

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Because it's separated by city councilor that um encourages more input rather than less.

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And we already have very long meetings of the city council, so I pulled up just for sample.

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Some agendas from my hometowns to look at and one from concord, new hampshire. So this is celina.

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Kansas as city council- oh I don't know if it's being shared uh yeah, it was like saying the wrong.

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Thing on youtube: yeah: okay, let's take a pause here: councilor tabor. Can you see the salina count.

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Commission regular agenda: I can okay, okay, okay, so um I just wanted to share the difference.

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Between this and our agenda- and I had a few of these to share um it- it's one- it's a one-page.

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Agenda call to order, and they still have several of the things we have pledge of allegiance.

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They're still citizens forum public comment and then there's a public hearing, but then they have.

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The consent agenda, and then they have below that administration, administrative issues and.

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Other business and adjournment so in a model like this city councillors would submit information to.

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The city clerk for inclusion on an agenda and it would just be added as part of business discussion.

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um So that's one model: can we pull up another one before you leave this model? Just so I understand.

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Let's say: council lombardi wanted to talk about.

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I don't know where would it fall here under nine under other business or where would it probably.

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Fall under administration like so it would be a an item that was submitted for discussion.

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Gotcha but it wouldn't be attributed to any one person it wouldn't be attributed to one person.

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You could, though, put their name behind it, so they could rename it. Yes, in the case where there are a.

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Couple of folks: okay, yes, so so it's more that the business all goes together in one bucket.

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For discussion, rather than several different, you know agenda items presenting different levels of.

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Business and the consent agenda includes all items, including minutes if you'll notice um and I've.

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Seen different practices around consent agenda that way you can just uh move to adopt the consent.

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Agenda and all of these items can be adopted at once, got it okay, um so this is one model.

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And I'm just giving these as examples um they're by no means best practice.

C

Could we see the conqueror city of concord agenda? Yes, now that one um I I love concord.

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It's a lovely town, but I'm glad I'm not on their city. Council is what I will say so.

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Let's, let's make sure we can pull it up and you can see it. Can you see it.

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Counselor taper yeah, okay, so this is city of concord very similar to our starting. um You can.

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Go ahead and if you don't mind scrolling starting to scroll through, it is very similar to irs. But.

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You will notice there's an agenda overview by the mayor and then what's interesting. Is they get to.

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Issues before the council and there's nine pages of agenda items just so you know.

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Here um and several public hearings.

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So they have all of these ordinances and resolutions they're, considering.

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And it goes on again, these are not attributed to individual counselors, you'll notice,.

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And then there's from the city manager, then there's consent reports.

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It keeps going.

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Quite a bit when I looked at this, I thought wow.

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Consent resolutions and then appointments.

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And then public hearings now this is intriguing. So there's one two three four.

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Five: six seven public hearings and then public hearing action. How long do their meetings go?.

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I'm not really clear. This is what I said. I concord's a lovely city, but I really.

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I'm glad I'm not going through this meeting and then they get to new business.

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Unfinished business comments, requests by the mayor and the city councilors, and they don't.

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Do they don't say what those are at the end and then they consider suspended items.

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And adjourn this is a very long meeting from what I can tell in concord.

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And we'll look at one more.

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And this is all food for thought on what we want to do, because really there are no divine rules.

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Around what we need to do around an agenda, um I just think it would be nice to to think a little.

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Bit about what? What does our agenda do as far as how does it set us up in a meeting for discussion.

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And what does it do for meeting time so here's the city I was born in stephenville, texas,.

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Theirs is also very short, said again same things. That you'd expect recognitions comment, regular.

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Agenda public hearings: they do planning and zoning at this city council level, so.

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You see that there financial reports, economic development authority report, consent agenda.

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Comments by the city manager, comments by council and adjournment.

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So this is also shorter.

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So I I thought I would bring these to the governance committee and.

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Get some more opinions on best practices, and this is just an initial.

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Thought around order of business and so that we can start thinking about you know what do we.

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How do we want our order business to be presented? Do we like the way it's done now? Do we.

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It does it reflect what we think is the best order of business that we can have as a council.

B

That's my question so, and so that will come back also to the committee as well. Does anyone.

B

Have any thoughts before we well, it's interesting. It's very interesting.

C

uh If we could go back to councilor, lombardi's suggested changes.

C

The item about unbudgeted spending, the language around that.

C

Yes, um if I could just ask the city manager.

C

Would that augment the process that we now have, which is if we go beyond budget, we have to have.

C

A vote to do a my mind's blanking on the name: supplemental appropriation, yeah, supplemental.

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Appropriation for which, for which we do need a public hearing and adoption by a two-thirds vote.

A

So that would essentially be in keeping.

D

If I may counselor tabor, I in our conversations with city attorney when kate and I attended.

D

He suggested that we look at that and clarify the.

D

The language to include anticipated something like anticipated liability right.

B

I believe that there was a language around reasonably foreseeable expenses.

B

So because the current language would suggest that until the expenses incurred, it's not an expense.

B

Until you're immediately voting on the expense, but that this would alter.

B

That decision making to the front end rather than the back end of expenditure.

C

Yeah, it adds some clarification to the supplemental appropriation process.

C

Because right now,.

C

We can only do a supplemental appropriation when we know we have to spend the money, but.

C

This makes the council reckon with the possibility or the probability.

C

That they're going to have to exceed the budget in advance and then vote to do that. Correct.

A

We'll need to get some some appropriate language from legal on that.

B

Yes, um I'm happy I've taken notes on everything that we've discussed as.

B

Far as rules and I'm happy to go to legal counsel and get appropriate language around.

B

Several of these, so that we can go through it line by line if that works, for both of you.

C

I think the city manager's input on that's important too, because she's, the executive.

C

It's her budget. She needs to know if she has council support uh if we're moving in.

C

A direction a policy direction, that's going to cost more money than the budget right, yep.

B

B

um Is there anything else that we want to cover around rules um before we.

B

Move on to the discussion of ethics.

D

No, I don't think so. Not me.

C

I would just add, um on the order of business.

C

One of the benefits of having items under counselors names.

C

Is that we often work with subcommittees.

C

And as those subcommittees come up with what they want to see accomplished, the ability of.

C

A counselor to say I can bring that to the full council under my name, I think, is one way to move.

C

Initiatives forward to the council level: that's very direct.

C

So I just put that out there as food for thought: okay,.

B

Okay, I've noted that, um and I think we should have like a more robust discussion around.

B

That and all of these potential rules changes as well um right and I'm cognizant that.

C

You mentioned efficiency and use of time and that's the balance that we have to strengthen.

B

Exactly thank you. Councilor tamer.

B

Then, let's move on to the ethics process.

B

And I'm going to turn it over to counselor taber who's, going to lead that discussion.

C

Okay, thank you. um I'm going to assume that everybody has read and knows our.

C

Current ethics ordinance, which is 32 years old, now.

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And I'm going to talk about some some changes that came out of our experience.

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Of actually convening the ethics commission for the first time in 2020.

C

Here were some of the things that we concluded after the process.

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Finished- and this was the ethics investigation of councilor kennedy.

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In spring of 2020.,.

C

um The process has a definition of what an ethics violation is, and then.

C

How we form a commission to investigate it um and I'll I'll deal with how the commission works first.

C

And I'll I can share a document with these and send it to everybody for the record.

C

As you know, the the essex charge first goes to them to the city attorney and the mayor.

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To review it, and if both or one of the two thinks it's worthy of a ethics investigation, it moves on.

C

To the full ethics commission, which is drawn by a lot from the school board,.

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City, police, commission, fire, commission and city council.

C

So when we having gone through the process and actually lived seeing how it works.

C

It's really a hearing in which we take a formal complaint and I think our language.

C

Is good on this, the formal complaint has to be written by the complainant.

C

And we then investigate it. The complainant um we found out has really enough in in our operation.

C

uh Operating of the ethics commission has to bear the burden of proof. Other cities that.

C

I've looked at make that clear and it might be sensible to make that clear that the complainant.

C

Has to do a written complaint as we state and bears the burden of proof.

C

C

You quickly find out that we can't use the very.

C

Imposing standards of evidence of criminal trial, but we need some standard of evidence.

C

And a lot of cities use clear and convincing, which is not beyond a reasonable doubt. But.

C

Is a pretty good threshold, so perhaps our city attorney can look at that.

C

So we can establish a standard of evidence.

C

There needs to be due process.

C

So the complainant testifies makes the case um and then the accused gets to rebut and.

C

Can have counsel all that's in our ordinance now and it's good to have some flexibility. The.

C

Commission needs to be independent and needs to set its own rules, so I think that flexibility.

C

Is good one area we don't have a lot of clear language which other cities do. The committee.

C

Should have powers of discovery for documents and whether it's employees or elected officials.

C

Involved, we need language, that's as they need to fully cooperate.

C

The current ordinance allows the commission to meet publicly or not publicly, um and we may want.

C

To consider that the hearings should be public, that was the process we use and I think in the.

C

Heat of an ethics investigation, it's good to have the public, see how we weigh the evidence.

C

But at the same time there should be some provision for.

C

Deliberation at the end, just like a jury, a jury can be sequestered and the commission.

C

Needs time to deliberate with one another, and that I think is a chance, is a good time for non-public.

C

Three more.

C

The committee should make a written finding. I don't think we have language about that now and.

C

This was something all of us on the ethics commission felt strongly about a written finding.

C

That should also recommend the sanction or penalty and there's options in our ethics ordinance.

C

Ranging from doing nothing putting a letter on file censure removal, I think we felt that.

C

The ethics commission should go the extra step of saying here's our finding, based on the facts.

C

And here's our recommendation to the governing body of which of the sanctions or penalties to use.

C

That doesn't again the commission is advisory. It's the governing body that makes the final decision.

C

But I think it um forces the commission to buttress their case when they have to recommend.

C

What the sanctions should be.

C

This was very important. Another thing that we felt strongly about once the findings given.

C

To the city council, if a member of the governing body is involved, they can't vote about themselves.

C

They have to recuse from any votes on that, and the same would be true if it were a.

C

Police, commissioner, that governing body they'd have to recuse our school school board. Member.

C

And lastly, the current ethics committee has four members, and so we thought either three or five.

C

And I would propose force to think about. Maybe it's the current four chosen by lot and the.

C

Mayor may want to appoint a citizen, maybe somebody with legal background.

C

To be a fifth member that way, we don't have two two votes.

C

I'll take a breath there.

C

See if there's any comments or or thoughts.

B

I think these are all wonderful recommendations. I should note that I invited the other members of.

B

The ethics committee who went through this process with you.

B

Councilor tabor to attend today, if we want to hear their views as well.

B

And I think I would need a motion to suspend the rules and invite comment from.

B

I'll move to spend the rules.

C

I'll second you'll need a roll call vote just as a reminder since councillor tabor's on zoom, okay,.

B

So then I will call a roll call vote lombardi. Yes, councillor tabor, yes, and I vote yes as well.

B

So uh first I will invite, um I think we have one person present.

B

And walker to join us at the table and share insights.

B

And you'll want to grab the microphone close to you.

E

Well, I I concur with everything that uh that counselor tabor, he did a great job chairing.

E

The committee, because we had no idea what the procedure was going to be and we we did manage.

E

To get through it and uh and then we came up with a letter at the end uh that that we we sent.

E

Mainly agreeing the way that the setup should be and that the person involved should not be.

E

Included in a vote and most especially that that what we sent was ignored.

E

It wasn't even put on file, it was just ignored.

B

Thank you. uh I think we have one other participant on zoom uh dickie, gamester.

B

Would you like to share your insights as well? How are you doing today, good morning.

F

Good uh nice to see you all, I listened to john very carefully. He.

F

Covered everything that we talked about at the end of that last session, um very well.

F

It was a very difficult set of rules to operate under um especially deliberating with.

F

The public involved it's very difficult to do that.

F

People want to talk and they want to open things up. So that's that should be done in a.

F

uh Sequestered cherry room or, however, you want to call it, I believe it. I believe that.

F

Recommendation should strongly uh enforced, in other words, if we, if we or as community members.

F

Find guilt and recommend a penalty for that guilt that that ought to carry a really strong amount of.

F

Weight uh at the council level at the last the last situation, it was originally tried to be.

F

Take place at all, you know except accept the regulations, the places that accepted and placed.

F

It on file that failed there to go back to two weeks later and and uh um do it again, and it was.

F

Just just as horrified fight fired by that that situation, so it's that's, got to be cleaned up.

F

At the end, how it handles how it's handled once we are done with it or other the ethics board, is.

F

Done with it, it's got to be more like a very concise liner of events that can be followed.

F

John, what do you think yeah? In other words, the the what the committee finds is the rebuttable.

C

Presumption and the council has to have some very, very good reason to not follow the advice of the.

C

Committee um or some really high threshold for them to get over, um I mean what you're saying is.

C

We made a finding and we found guilt and it was ignored and how do we fix that.

F

I agree, I agree whole lot of things. That's what.

F

That kind of made it all a lack of sponge. We wasted our time.

F

C

So maybe maybe I can talk with the city attorney or or we can all meet with the city attorney.

C

To consider ways that the governing body um has to follow through on on a finding like that.

F

Okay, you know, I think so the attorney might say, but in the end the governing of the body.

C

Is the final just arbiter so we'll have to figure out how those two play together.

E

I just wanted to make a comment that, at the end, the the vote was unanimous, which actually was a.

E

Surprise to us, because I really wasn't sure how anyone else felt, but it was a unanimous vote.

C

Yes and and each for somewhat different reasons in what they found in the testimony.

C

Which to me said the process was working know you have another person around here that uh I see her name. She could very well.

F

um Put up some information that that would be. She wasn't complaining before information that might.

F

Be interesting, john, that you and I have thought about from the complainant side. Looking at this.

F

And how it went, has anybody invited nancy pearson to talk.

B

uh We had invited the committee members to talk. My um guess is ms pearson is here for public comment.

B

But we can suspend the rules and bring her into this discussion if, um if counselors agree to that.

B

um Does anyone I'll move to suspend the rules? Second, uh we'll go through a roll.

B

Call vote counselor lombardi, yes, councillor, tabor, yes, and I vote yes, counselor cook.

B

Invite nancy pearson to join us um for this discussion if she has.

B

Comments on the ethics process, I thank you. Can you guys hear me we can yes, I I do. Thank you. um I also.

G

Have a comment on the public dialogue: should I save that for later? uh Yes, please, let's save that.

B

For public comment, okay, all right! Well, um this! This is nancy pearson, I'm not currently. At my.

G

Lincoln um home this morning, I'm down in miami beach and I'm going to spare you my video because.

G

It's just crazy down here so uh anyway. I I want to thank uh thank this body and counselor tabor for.

G

Taking up the ethics complaint process, um I think it's incredibly important that the city makes some.

G

Policy updates, when it comes to this process when it comes to what constitutes an ethics violation.

G

The expectations of the complainant, as well as the conduct and and.

G

Behavior of the accused and the governing body, that's ultimately involved, so I do have.

G

I do have a lot of comments and before I begin I I want to express my appreciation.

G

To counselor and chair tabor, commissioner gamester commissioner hart and school board member walker.

G

Who, I believe, conducted a very fair professional process back in 20 2019, and I and my comments.

G

And recommendations are based on my experience, my personal experience as the complainant, so.

G

First, I I want to say that I found the process murky and I felt intentionally vague.

G

Whoever set this up, I think that portsmouth has a very narrow parameter within our ethics code, which.

G

Relate almost exclusively to personal financial gain, and so, while I know it's important to ensure.

G

That no public official gains financially from their position. I think there are other behaviors.

G

And actions that are also unethical, including, for example, deceit and abuse of power. And it was very.

G

Challenging to try and tie that to the current code, I did it I'll get to that in a minute.

G

Second, I want to say I was not. uh I was unaware of the steps that were involved once that trigger was.

G

Pulled and once the formal complaint was sent to the city attorney and from what from what I could.

G

Tell it appeared that everyone else was not aware either, um perhaps because there's no guidelines.

G

There's not an faq page there's not a what to expect it. It just seemed to be unchartered.

G

Territory for everybody which didn't make me feel great on the one hand, but on the other hand,.

G

I did have confidence in this group of people. We don't know that that will always be the case.

G

So I it was a little bit uh my trust, my trust was in the individuals not in the process, um so.

G

Third, as it currently stands, as counselor tabor mentioned, the onus on the responsibility of the.

G

Case really does lie solely on the complainant, and I do understand the intent is to prevent a.

G

Slew of frivolous complaints against our public officials and volunteers.

G

um I feel that our process tilts too far in the opposite direction and it's overly burdensome.

G

On the citizens- and it feels like it seems to favor the accused instead and um and please.

G

Allow me to to put this into perspective because, yes, I met the challenge in my in.

G

My case against a former city councilor, but I do question how well another citizen may have fared.

G

I happen to have a master's degree in public administration. I happen to have decades of.

G

Professional experience running non-profit organizations, I have personal contacts at.

G

The new hampshire center for non-profits at the charitable trust division of the new hampshire.

G

Secretary of state and I talked to those people I have benefited. I had a benefit of four years of.

G

Public policy making on the very city council in question, so even with all of that that prospect.

G

That process went right up to the edge of my skill set I mean I I was. I was on all engines. You know.

G

And it, and that also included my considerable experience in technical training and adult.

G

Education, so, in other words, I have a special proficiency in discussing complex technical topics.

G

And breaking them down into smaller digestible pieces, and even that, even still it took all my.

G

Skills my advanced degree and my experiences to successfully navigate that process and that.

G

I just question that that's fair uh for, for any other, you know community member.

G

To have to have those kinds of skills to navigate this, so I agree with already what what's been.

G

Said I think there must be policies that moving forward uh in the process that not.

G

Only prevent the accused from casting a vote on their own ruling or any further.

G

Action I I don't believe that there should be an option for the governing body to do nothing.

G

I I just don't think that that should be an option in the case where a violation has been found. I.

G

Mean that just that just begs for the process to be undone, I just that needs to be looked at.

G

So I I also believe um going through this process that the complainant, as soon as.

G

This is triggered with with a formal complaint that person should be provided a legal advisor.

G

By the city who guides them through the process, starting with the assistance of how to connect the.

G

Complaint or to see even if the complaint connects to a specific violation. Now, as I said, I was able.

G

To connect the actions of the counselor very specifically, to wording in our ethics complaint.

G

um I don't, I don't, think it's reasonable to expect just anybody to be able to do that. So I think that.

G

If the person were helped and guided through the process by somebody from the city that understands.

G

The legal process and the ethics complaint process that should be the first step and then.

G

If there's an agreement that there's something there, then maybe the second step should be to move.

G

It on to the mayor and these the official city attorney just so that the person has an idea of of.

G

Where it might be going so that that was one thing that I would have found very helpful um next, I.

G

Believe that the complainant should be interviewed by the ethics committee, but the responsibility.

G

Of collecting information gathering evidence, maybe making those calls to the secretary of state the.

G

New hampshire, charitable foundation should fall on the committee um not solely on the complainant,.

G

And then, um when it comes to the decision and the ruling by the ethics committee.

G

I believe that there needs to be a clearer process. Should the body find that a violation has occurred.

G

And and as others have stated, I believe that the ad hoc committee should make a ruling.

G

It should include the recommendation, and it should. The recommendation should not be left to the.

G

Governing body- and I'm going to say again, I I do not believe that doing nothing should be an option.

G

In the case of when a violation has occurred, especially if it's unanimous, there might even.

G

Be some language about that um and, as previously stated, I do not think the person accused should.

G

Ever, under any circumstance, be allowed to vote or to weigh in on their own case in any future public.

G

Deliberation after that ethics committing has made after that ethics committee has made their ruling.

G

um We saw this take place and I thought that was an abomination of the process.

G

So those are my thoughts, um I'm happy to submit them uh in in a bullet and and and.

G

Provide them as comment, if you think that would be helpful, um but that that's all that I have.

B

Thank you, nancy um yeah, thank you and I guess we will.

B

Wait for further comment under public comment from you.

B

And let anybody else. Thank you any questions. I think it would be. Thank you for the opportunity.

D

I think it would be useful to have her submit her things in writing. Okay, if that's acceptable.

B

Does that seem reasonable, counselor tabor? Oh absolutely, and I I want to thank nancy as well.

C

um You know this was a difficult process, and- and so thank you for coming back and and.

C

Sharing with us your thoughts um and dickie and ann, and I and tom hart also did talk about.

C

It's it's hard for the complainant and I agree with nancy that.

C

um It's difficult to put the complaint together and carry that burden of proof.

C

In some assistance we talked about, could there be some kind of ombudsman, some neutral.

C

uh Legally trained person who can assist someone who wants to make an ethics complaint.

C

I think if people want their government to be clean and honest and transparent, and if it's.

C

Easier, rather than harder to make a complaint that goes to that purpose, we could never figure.

C

Out how to do it? Obviously you know we thought about. Could the city attorney prosecute the case.

C

But that means the city attorney's, essentially pursuing a case against a member of the governing.

C

Body and that's a tricky place, but some kind of ombudsman or outside counsel, who assists.

C

The complainant makes a lot of sense, and I also, I think, nancy pearson's really refined.

C

The question about the penalty when she says the governing body can't do nothing especially.

C

With the unanimous vote- and I think that would really strengthen the ordinance.

F

When nancy said that, I wrote it down immediately, because that was one of the most disheartening.

F

Situations to watch um if, if it's a unanimous vote with with a well-interviewed process, that.

F

Preceded it and it goes to the governing body, and nothing is done with it.

F

That that is just an absolute waste of time and they had it figured out. You know.

F

I mean nobody was ever worried about it in the particular case we're talking about that. It was.

F

Gonna go in the trash, no matter. What we did um so fancy's uh recommendation thereof is.

F

Should never be part of the process and I'll I'll leave it there. Thank you. Thank you. Miss code.

B

Thank you for joining us today. Well, you're welcome! You got your message.

F

Nine o'clock last night, I appreciate the quick turnaround and the your.

B

Willingness to show up today um do do we have any other comments.

B

From you, I would just concur with uh with the rest of my people. Well spoken good job, okay,.

B

Thank you also for taking the time to join us this morning, my pleasure, um thank you, anne. Thank you.

B

Counselor taber, how would you like to proceed on working towards changes to the ethics ordinance.

C

um I think we've got a lot of good testimony today and.

C

I think the next step would be to ask legal staff to take some of these points.

C

And come up with a new draft: does that make sense.

C

Maybe get some input from other experts as well.

C

And work towards a revised ethics ordinance uh that we can.

C

That we can deliberate on as a committee.

C

And that we can, you know that the public can see as well.

C

I did want to cover a couple of points uh about what constitutes what constitutes an ethical.

C

Violation, if we have time for that, um I believe we do.

C

um You know that the investigation we did was there was no apparent financial gain.

C

But there was a situation where.

C

The public official did appear to act.

C

In self-interest, or at least act in a way that was not impartial and what we.

C

Determined, as a committee was she undermined the legislative intent of the city council.

C

So what happens when a member of an elected or a member of a public, a governing body.

C

The whole governing body is going one way and that that person says.

C

I'm going to do something contrary to that intent.

C

And in this case, engage in a transaction.

C

To undermine that intent.

C

So we need some kind of language about that um and to me it comes down to all of us on the boards and.

C

Commissions and council, you know, want to discharge our duties fairly and impartially, and the public.

C

Expects us to be fair and impartial and to go along with the majority view of the governing body.

C

And you know I've seen some language in used when an official's conduct is quote.

C

Contrary to public policy and raises the specter of self-interest or partiality.

C

um So that may be a way to get at this situation um and two more quickly.

C

Our language about divulging confidential public information.

C

Is pretty vague? You know there have been occasions where members of a governing body or or employees.

C

Potentially, could divulge confidential information in a way that hurts the city and.

C

Right now, that's okay! There's no sanction against that! There's no penalty, there's no violation.

C

And lastly, you know.

C

There's situations can arise where uh a member of the governing body.

C

Can negotiate with another party outside the government representing that they're.

C

Doing it on behalf of the city, without the approval or direction of the governing body.

C

And I think that's an ethical violation. We've had situations where information's.

C

Been shared, that's confidential or somebody said I can help resolve this dispute.

C

With somebody outside of the city government- and we can't, I think, that's an ethics violation.

C

And we should have some language to fence that out as well. So those are ways that the definition of.

C

An ethics violation might well be expanded to our benefit, and I woke up everybody's thoughts on that.

D

I'm thinking about, I think I think those are good points. I'm.

D

um I'm trying to imagine language to fulfill that I.

D

I can't off the top of my head.

D

I think you've stated the issues articulately, um how you put that into.

D

Part of a document, a guiding document.

D

Well, I guess that's what lawyers are for, so I think those are all good points.

C

Yeah and the confidential information is tricky because there are also times.

C

And jim splaine would be the first to say this. There's times you want whistleblowers.

C

um So I'm thinking about a situation where, for example, let's say a member of the governing.

C

Body discloses confidential information to uh to somebody who's suing the city.

C

That could do us harm and I think that's an ethical violation. They've failed to act in.

C

An impartial way as an elected official or you know, a board member. You know I counselor taylor.

B

I think this is a really important point, because that information should not only be confidential.

B

While you're serving the governing body but anything that was confidential, when you were.

B

Serving a governing body should not be able to be shared if you're no longer serving as well.

B

So I agree that we need clarification around all of these issues. It is important that we talk to.

B

Legal counsel, um one of the things that when I started looking at ethics and ethics violations.

B

I started looking at um the rsas and what the code says and what the court cases say and.

B

And they're not very specific and unfortunately, in some cases our.

B

Superior court has ruled um in a to limit ethics violations rather than to expand them.

B

Limit the scope of ethics- so I think getting legal advice here would be critical to make sure that.

B

Our ordinance reflects the current thinking at uh at the state level, so.

B

Councillor table, would you be willing to talk to legal counsel about working on.

B

The ordinance and these additional recommendations to define ethics, violation.

C

I'd be happy to, and uh um either of you are welcome to join me and we'll see we'll see what.

C

Our city legal department thinks we can do. I would just caution that if two of you.

A

Attend a meeting together. That's a meeting so you'd have to notice that so perhaps one just if.

A

You want to consider that it would essentially be meeting just like this. I would say that we had a.

D

Meeting with council that attorney sullivan said that did not constitute a a meeting. Okay.

A

When you both met, okay got it when kate and I went so right. So as long as.

B

Any meetings outside of this body are meetings with council and discussion with council.

B

We just have to, we have to be really cautious. We don't want to violate any rules around right to.

B

Know so, okay, we have to make sure that if there's more than one of us present that it's a meeting.

B

With council and discussion with council, well, maybe in the interest of transparency.

C

I could make put these points in writing. Make them part of the record of this committee, so.

C

Then everybody knows what the issues are and then take them to bob sullivan.

C

And see if he can come up with language um and then we can take it up again in public session.

B

That would be wonderful, counselor tabor. Thank you. I would be happy to meet with you with.

D

With the city attorney as well, if you thought that would be in advance, yeah, absolutely okay,.

B

So I want to make sure we will continue our discussion of ethics, I'm watching the time.

B

At our next governance committee meeting, um but I want to make sure we talk about committee.

B

Priorities for the next meeting so that we have a plan in place before uh you leave today.

B

Does does anyone um have something that they want to discuss in the next meeting.

B

That we're not already in the process of discussing beyond rules and ethics right now.

D

um I did earlier mention that I had something I wanted to bring up that occurred to me.

D

And um so I will bring it if I may, I can bring in. I can bring that up now um and.

D

Basically, it revolves around and there's my cheat sheet. um The uh the email.

D

The the process that we have email.

D

Coming through the city website- and it comes to everybody in the council- and I really respect.

D

That counselor bagley takes time to respond to a lot of people, but those responses aren't and.

D

I'll say, thank goodness, they're not reply to all, because that just makes that whole process grow.

D

But at the same token,.

D

The question is, is he representing the council in in replying to those emails.

D

And, um or is anyone replying to those emails representing the council, and uh so it's I, I think.

D

That we had some discussion about the whole volume of email and and um how that's pretty burdensome.

D

And I just so- it just made me think about this part of it as well. So it's a question.

D

um To the city manager to the attorney, I think it would be a question to the attorney and the rights.

A

Of an individual who chooses to respond, so I don't want to speak for bob. I think we should add.

A

This to the the list of things for illegal to to weigh in on okay. But um I would like to take the.

A

Opportunity to say that if there is a that I have as of last august, been part of those emails that.

A

You all received so someone's if someone writes to the whole council, I am, I do get a copy, yes, and if.

A

If it is something that I think you would want me to answer without being prompted, if it's.

A

Something very informational I'd be happy to to to volunteer that. Otherwise I do tend to wait for.

A

A counselor to to make a specific follow-on ask that's not very clear, but there there have been.

A

Cases when an email comes forward- and it's easy for me to shoot out an answer- that everyone can.

A

See and understand, and- and I can resolve that and move that inquiry off your plate so to speak, but.

D

Okay, thank you thank you. So I will add this as a report back from legal uh for our next meeting.

B

The legal department is going to love us yeah, so um well this. This is the one committee that legal.

D

Department has to be very involved in yes, yes, so uh councillor taber, do you have anything that is.

B

Not current that we're not currently discussing that, you wanted to add to discussion for the next.

B

Committee meeting no okay, thank you, um so I want to make sure that everyone is comfortable with the.

B

Committee priorities for the next meeting, we will discuss rules. We will try to get a copy of.

B

Those out with changes before the committee meeting, so everyone has an opportunity to.

B

To review recommended changes from legal um and we can have a more line-by-line discussion of rules.

B

Recommended rules, changes or suggestions around rules, changes.

B

And then we will continue discussion of ethics and we will also be looking at some recommended.

B

Changes to the ethics ordinance and to definition of ethics violation as well.

B

Is is that accurate, and then we will request a report back on uh counselor email volume.

B

And responses and the nature of those responses from legal as well, okay, does that sound, reasonable.

B

To everyone that sounds very reasonable. Okay, I want to open up for public comment now.

B

Do we have anyone who wants to make public comment? I think miss pearson is still on the line.

G

Yeah real quick, I just wanted to say that I am in full support of counselor cook's recommendation.

G

To bring back and even update, streamline public dialogue, I just want to say.

G

For um historical purposes, just so you know it was enacted precisely for the reasons that you.

G

All discussed it was enacted, it was brought about to provide an opportunity for citizens.

G

To have that two-way dialogue with public officials and to create an atmosphere.

G

That was less intimidating to those who don't want to stand up at the official podium and so.

G

Any effort this council makes to be more inclusive with respect to community members and their access.

G

To the democratic process is a great step forward, so total support for this effort.

B

B

I don't see anyone else, um who's wanting to make public comment.

B

um Any other business before we close our meeting.

D

Move to adjourn okay, second I'll roll call vote, counselor, lombardi, yes, councillor tabor, yes,.

B

And I'm counselor cook and I vote yes as well. We are adjourned. Thank you.