Does the Concord City Council Ignore Conflict of Interest Rules

CONCORD, NH — I believe that how we do your business at the City Council (and more broadly how government conducts your business) is as important as the issues that come before us. I believe the process - how your representatives conduct themselves - is as important as the policies we vote on.

The item that came before the Council at our November meeting, was a recommendation from the Public Safety Board about the use of fireworks by private citizens. This matter had been referred to the Safety Board last year by the City Council, after a number of people testified about their concerns regarding fireworks.

What concerns me, more than the recommendation from the Safety Board, is that a member of the Council spoke at the Safety Board’s meeting who last year declared a conflict of interest when this issue came before the City Council.

Here is in part what our City’s Code of Ethics (City of Concord Code of Ordinances Article 1-6-4 Recusal) states when a Councilor has a conflict of interest:

“Whenever a matter comes before any City of Concord Public Body, no officer or elected official shall introduce, ask questions, speak on or vote on any motion, ordinance, resolution or issue in which he/she has a conflict of interest and shall disclose the reason for the conflict of interest as soon as it becomes known to the officer or official…”

I pulled this item from the Consent Agenda to insure that the Council member with the conflict would not vote on his matter and to have this item sent back to the Safety Board to be reheard without the input from the Council member who had previously declared the conflict.

City Council Rule 6-1(A) does not allow for an individual Councilor to appear before any city Board or Commission, with a number of exceptions:

That the item before the Board or Commission effects the Councilor as an abutter. The Council can vote to send a member to appear before a Board or Commission. If a Board or Commission asks the Council to send a representative and the Council agrees to the request. And as noted below from an opinion by former Solicitor Cavanaugh, the Council can wave the rule.

The reason this rules is so important is described in an opinion to the Council by our former City Solicitor Paul Cavanaugh. Here is part of what former City Solicitor Cavanaugh wrote in an opinion requested by the City Council in 1992:

“…Appointments to these boards and commissions are either made or approved by the council. The council also controls the appropriations that fund the work and staff of these boards and commissions. In passing Rule 6-1(A), the City Council intended to insure the independence of the boards and commissions by freeing them from the political pressure asserted by individual councilors. The rule also protects the councilors from constituent pressure to influence the decision of the boards and commissions.

The rule does not deprive councilors of any right. A councilor may appear on his or her own behalf. In the past this exception has been applied and councilors whose interests were directly affected have appeared before city boards. For example, a councilor has appeared before the Zoning Board of Adjustment to object the the granting of a variance on land adjacent to the councilor’s property. If there is any doubt about a councilor’s standing to appear the council can be asked to wave the rule.”

This opinion from Solicitor Cavanaugh resulted in the current language in City Council Rule 6-1(A).

This is what our City Charter’s noninterference clause states for members of the City Council:

“27. Noninterference by the City Council.

The City Council shall act in all matters as a body. Members of the Council shall not seek individually to influence the official acts of the City Manager, or any other officer; or to direct or request, except in writing, the appointment of any person to, or removal from, office; or to interfere in any way with the performance by such officers of their duties; but they may make suggestions and recommendations. Any member of the Council violating the provisions of this section, as determined through procedures established in this Charter, shall forfeit the office.”

The above City Charter rule is also codified in State Statute RSA 49-C:19; Non-Interference by the Elected Body.

It is important to understand what the term officer refers to. Our City’s Code of Ethics defines an officer in the following manner:

“Officer. Positions appointed by the Mayor and City Council or non-employee positions approved by the City Manager including members of the boards, commissions, and committees established pursuant to Article 30-3. Officer shall also include those residents appointed by elected ward officials to help on Election Days. Officers shall not include the City Manager and City Solicitor.”

In addition to the concerns that I have already stated, I believe the Chair erred in ruling that he could preside over the matter that he had a conflict of interest. The Chair after stating he would not be voting on the issue, stated that he would be presiding over the discussion and the vote. This is what our City’s Code of Ethics says on this subject:

“…In acting upon a matter involving more than one subject, such disclosure and recusal are only required with respect to the portion or portions affected by a conflict of interest, and not as a whole.”

In the issue before us at our November meeting I would interpret this rule in the following manner. If the consent agenda item that the Chair had a conflict of interest had not been removed from the consent agenda and the consent agenda was voted on as a whole, I believe the Chair could vote and preside over this agenda item, as long as he declared his conflict with the item.

This was not the situation at our meeting. By the removal of the item from the consent agenda it became a stand alone item. And once again, this is what our Code of Ethics says on this matter:

“Whenever a matter comes before any City of Concord Public Body, no officer or elected official shall introduce, ask questions, speak on or vote on any motion, ordinance, resolution or issue in which he/she has a conflict of interest and shall disclose the reason for the conflict of interest as soon as it becomes known to the officer or official..”

Additionally the Chair did not state his conflict until the item was recognized at our meeting and I had voiced my concerns. The ordinance is clear, that the reason for the conflict must be stated as soon as it is known. In this case I believe it would be reasonable to expect that the Chair was aware of the conflict before he left the Public Safety Board meeting on October 17, 2016, that this would be placed on the city council meetings agenda for our November 14th meeting. If the Chair wasn’t aware of it at that time, he should have been aware of this item when he reviewed the agenda, prior to our November meeting.

Even the Concord Monitor noted the concerns of conflicts with a Nov. 28, 2016, editorial from the Washington Post titled: Post editorial: Build a wall - against conflicts of interest. Unfortunately when I noted the conflict at our November meeting the Monitor failed to make any mention of this in their reporting of our meeting.

I strongly believe that if we expect the public to have confidence in how we represent them, then it is not unreasonable to expect that we abide by the same rules you are expected to comply with.

As always please do not hesitate to contact me should you have any concerns or questions. I can be contacted at aherschlag@concordnh.gov allan4council@gmail.com or 224-6086.