Herschlag: Three More Strikes For The Concord City Council

Strike 1: The city manager’s evaluation

The city charter requires the city council; “During the month of April following the first anniversary of a City Manager's service, and in each subsequent April during a City Manager's service, the City Council shall conduct an evaluation of the City Manager's performance in office. After such evaluation the City Council shall determine in public session, whether the City Manager's overall performance in office has been satisfactory or unsatisfactory. The City Council shall also establish the City Manager’s compensation for the ensuing year.”

I have for years conflated making the manager’s evaluation public with including notes and comments regarding his evaluation. But it has finally gotten through my thick skull that to make the manager’s evaluation public, all that needs to be included are the categories the city council evaluates them on and whether their performance was satisfactory or unsatisfactory.

While the city council only has an obligation to reveal the manager’s overall rating, it would go a long way in validating the mayor’s protestations of a transparent city council by providing the public with the criteria used to evaluate the manager and his performance in each category (satisfactory or unsatisfactory).

Strike 2: The city manager’s salary

The city manager’s contract is posted on the city’s website. It is public knowledge. But wait, there’s more.

When the council voted to approve the manager’s salary, did you have a chance to review it before they voted? Did you have a chance to comment on it? Neither did I. Why not?

I am not going to get into a discussion of whether the salary is too high, too low or just right. At least not now. I want to discuss why there isn’t more transparency. I’m not talking about the negotiations between the manager and the council, but in you and me having the opportunity to review and yes even comment, before a vote is taken.

At the July 14th, nonpublic session of the city council, they met to finalize the manager’s evaluation and salary. After adjourning the nonpublic session, they convened the public portion of the meeting, where they approved the evaluation and contract with minimal discussion. Why?

The council should be willing to provide more information regarding the evaluation and the terms of the manager’s salary before voting to approve them.

The good news, three councilors voted against approving the manager’s contract because they felt you should know what is in it before it is approved.

Strike 3: The ZBA reconsideration of appointment

Let me be clear, the vote that approved the appointment, the question of qualifications of the individual and the vote to reconsider are all separate issues. I am only opining on the process of reconsideration.

The vote to reconsider is allowed under city council rules but not in all circumstances. Roberts’ Rules of Order also allows for a vote to reconsider, with the exception for a vote that cannot be undone.

RSA-673:13, only allows for a removal of members of a land use board “After public hearing, appointed members and alternate members of an appointed local land use board may be removed by the appointing authority upon written findings of inefficiency, neglect of duty, or malfeasance in office.”

In June, the city council voted to appoint the city manager’s nominee to the ZBA. State law is clear regarding the removal of a member of a land use board following their appointment.

State law regarding removal is silent on the issue of when the term for the appointment begins or if a person has taken an oath. And if the law is silent on an issue, it cannot be assumed - even if it is mentioned in other sections - that it would apply to this part of the statute. In fact the opposite is true. If a law is silent on an issue it is presumed the legislature did not speak to that issue because they did not want it included.

RSA 673:13 is clear as to when and how a person can be removed from a land use board. The city council’s vote to reconsider the appointment is not consistent with state law.

And let’s not forget the editor of Patch gave the mayor and city manager a heads-up on issues in the public domain regarding the person nominated by the manager as an alternate to the ZBA, before the appointment in June.

Strike after strike, out after out. It’s time for the city council to head to the locker room and learn the rules of the game.