Despite Criticism, Council Approves Ethics Ordinances

After nearly a decade of delay, deliberation, and debate, the city of Concord now has an ethics ordinance and board of ethics that will accept complaints and investigate elected and appointed officers and officials.

The ordinances, approved by the city council on Sept. 12, limit the amount of gifts an elected or appointed official can accept and also covers family members. It limits gifts to no more than $250 for a single gift, and no more than $250 aggregated during one year. Any gift that is valued at more than $50 would need to be reported to the city clerk.

The ordinance also defines what are perceived and potential conflicts, as well as provisions to cover interaction with those representing private interests before city agencies and the courts.

A separate ordinance created a “board of ethics,” with members appointed by the mayor and city manager, with approval by the city council, which would handle oversight of potential complaints. The complaints will be submitted to the city clerk and the board will have 45 days to review whether a hearing should be scheduled. If a hearing is scheduled and the board issues a finding with the complaint, it will need to notify the council within 30 days of what the recommendation is.

Good but …

A number of residents spoke during the public hearing phase of the ethics ordinances and complained that while it was nice to finally have the ordinances, the provisions were not strong enough.

State Rep. , D-Concord, a resident of the South End, estimated that he was the only person in recent memory to bring charges of conflicts of interest against elected and appointed officials. He said this gave him a unique perspective on the matter, having gone through “a two-year ordeal” attempting to expose alleged conflicts of interest and laws that he believed had been broken by elected and appointed officials.

“It is unfortunate that years have gone by before the public has been able to weigh in,” he said. “I think we have a lot of insight.”

Watrous outlined a number of problems with the ordinances including the definition of specific conflicts and the need for a specific prohibition clause “so there is no doubt what is prohibited.” He added that there was a need for “an alternative arrangement” for the board of ethics in order to make sure the process was not rigged to protect those who appointed its members.

Watrous noted that when he brought complaints to the city council about potential conflicts of interest between city councilors, appointed officials, and ConcordTV, the complaints were referred to a committee that was led by then-City Councilor Katherine Rogers, who had a show on ConcordTV, something he deemed a conflict and violation of city rules.

Watrous noted that during the process of the hearings, he provided a public document to Rogers’ committee that showed that another former councilor had not told the truth during the testimony phase of the investigation. The document was legally obtained from the city manager’s office, he said. However, Rogers then called the police to have him investigated, an obvious abuse of power that was never investigated, he said.

“This completely unmerited police action at taxpayers’ expense points out why those involved with ethics complaints must be beyond their own conflicts of interest,” he said. “Her conduct of the investigation raised serious questions as to whether or not it was fair and objective.”

Watrous added that when he wanted to file charges against officials involved who he believed broke the law, the police refused to investigate the violations. Two police chiefs claimed that because the city council handled the police budget, they wouldn’t investigate a sitting city councilor, he said.

On the board of ethics, Watrous noted that since the mayor and the city manager appointed the board members, and the city solicitor acts as the board’s legal counsel, there is no provision for oversight of members they appoint who might have conflicts or might not want to investigate the people who appointed them.

“Such an arrangement would not necessarily lead to justice being served,” he said. “The public would be understandably skeptical of any results to come out of this situation.”

Watrous also worried about provisions that allowed the board of ethics to keep information away from the public due to the way the provision was written. He used the example of documents received by At-Large City Councilor during a non-public subcommittee meeting during his conflict of interest complaint that were used to derail the investigation. When he made a right-to-know request to see the documents, the request was denied, and the public and press never got a chance to see the documentation. When Watrous went to court, the city spent taxpayer money to defend the secrecy.

“[Later] in a written memo from Councilor Rogers herself, she proved that the information contained in Councilor St. Hilaire’s report was misleading,” he said. “Here you have a situation where nobody can see the evidence except this Star Chamber in a non-public setting.”

North End resident Allan Herschlag said while the ordinances were “long past due,” he had problems with some of the specifics and suggested that the ordinances be tabled until they were perfected. He challenged the need for a person filing a complaint to have to be sworn a justice of the peace or notary public, calling it “an impediment.” Herschlag said a complaint signed by the person, an address, and a method of contact, were sufficient.

“I think this process needs to be made as easy as it can for somebody from our community to file what they consider a legitimate complaint, as long as they can be identified,” he said.

Herschlag also questioned the gift provision of being an invited guest but said there was “room for abuse,” especially if the interests were sponsored by a company or person who was doing business with the city.

“There needs to be a record of those activities that a councilor attends and the value of those activities,” he said.

Broadway resident George Coronis questioned some of the language of who was appointed, elected, and hired, and requested more specific language. He also said that the gifts and favors provision should be $0. Coronis said the councilors received a small stipend and that was more than enough.

“What are the gifts people will be giving you? I don’t understand why it is there,” he said. “I think this could lead to other things. I’m totally against it ... I think it should be zero.”

Coronis also said there should be a better ordinance for hiring employees than the current personnel. He said the issue had been debated for nearly a decade and shouldn’t be rushed into until the provisions were clarified.

“The way things go on in this city, it’s a little tough on the citizens,” he said. “I agree that I wouldn’t adopt anything tonight ... it’s too brief, you’ve gotta have more guidelines.”

Let’s not table this

After hearing the issues raised by residents, At-Large City Council asked St. Hilaire what were the consequences of tabling the ordinances so they could be worked on in the future.

St. Hilaire stated that the Rules Committee had spent years getting to this point and any delay would not necessarily mean that the ordinances would be improved. He said there was a lot of back and forth between councilors about specifics, mostly regarding the value of acceptable gifts. St. Hilaire added that if it was not approved or delayed, the councilors and appointed officials would be “grandfathered in” for another two years and would not have to live within the ordinances until 2013.

Amendments

St. Hilaire offered two amendments to the provisions. One removed oversight of the city manager and city solicitor from ethics ordinance and the board of ethics. He noted that both officials are bound by personnel rules.

The amendments were approved on voice vote and later, both provisions were approved by the council.

In a follow up interview, City Solicitor called the amendments “a belt and suspenders type of motion” and explained that the two officials were removed from ordinance oversight not only because of personnel rules but because of which bodies appoint the officials. He said the personnel rules offer “a whole host of requirements” by which the manager and solicitor must follow. The city manager will handle an ethics complaint against the solicitor directly, since he appoints that position, or he may delegate the investigatory responsibility to another person, he said. Charges against the city manager would be handled by the city council, since they appoint the city manager, he said.

Kennedy noted that the New Hampshire Bar Association has even more standards that solicitors must follow, above and beyond the city’s personnel rules.