Herschlag: When A Conflict Isn't A Conflict

At Monday’s city council meeting, I testified against the revised conflict of interest ordinance. Unusual for someone who spent a significant amount of time on the council concerned about ethics.

The ordinance came out of the rules committee to address a perceived conflict of interest from the January city council meeting by Ward 5 Councilor Stacey Brown. Perceived, because no actual conflict of interest occurred.

The rules change was hastily crafted over a period of seven days at two city council rules committee meetings. The rules change - which has been tabled for the time being - will not allow councilor Brown to be able to participate or vote on any issue regarding any compensation for any city employee, not just the police department where her husband is employed.

It is my opinion that this is a vicious vindictive attack on councilor Brown, to strip her of any ability to participate in employee compensation, even when it doesn't involve her husband.

What follows is my testimony to the city council at their meeting on March 14.

On February 7, 2022, the city council met to set its priorities. Under Transportation Projects is the Langley Parkway. The Mayor’s firm continues to represent Concord Hospital, yet the minutes do not indicate the mayor declared a conflict or recused himself.

At a September 10, 2018 city council meeting there was a public hearing to appropriate $91,900 for bagged fall leaf collection. The report states: “Casella and the General Services Department (GSD) held a number of meetings to explore a transition from the current Bulk Fall Leaf Collection to a new Bagged Fall Leaf Collection…”

Mayor Bouley chaired, spoke to, and voted on this item. And while no vendor had been selected for the bagged leaf pickup at the time of the city council meeting, the city had been in discussions with Casella, a company that the Mayor represents a subsidiary of. A no bid contract was awarded to Casella.

On April 13, 2015, when an issue regarding fireworks was referred to the Public safety Board, the mayor recused himself. But when this was addressed at the October 17, 2016, Public Safety Board meeting the mayor spoke to this issue.

On April 9, 2018, the mayor chaired a Public Safety Board meeting, although he was not a member of that Board and could only be appointed to the Board by approval of the city council.

During the time the Parking Committee was an ordinance based committee the mayor regularly attended and participated in their meetings, even though he was not a member. City council rules at that time did not permit councilors who were not assigned to a committee to speak at committee meetings.

And at the September 2017 city council meeting during a discussion concerning Keno, the mayor falsely testified that neither he or the company he represented were involved with the Lottery Commission in providing services for Keno.

So it rings hollow at the January 31, 2022 Rules committee meeting when the minutes state:

“Mayor Bouley indicated that he agreed that it was appropriate for the Board of Ethics to review the potential violation that took place at the January 10, 2022 City Council meeting. Mayor Bouley indicated that, as members of City Council, it was clear within the Oath of Office they all swore to, City Council Rules, the City Charter and the Ethics Ordinance that Councilor Brown should have recused herself on the vote in question at the January 10th City Council Meeting. Mayor Bouley further indicated that the Board of Ethics didn’t currently have a full slate of members asking the Rules Committee to hold off on referring this to the Ethics Board until the next Rules Committee meeting, allowing time to fill vacancies on the Board. Mayor Bouley spoke in support of the referral indicating he felt that there was a tremendous distrust of the government and that Council couldn’t play into that and instead Council should stand in front of the community and show residents that members of City Council would hold each other accountable, so that residents knew that as Council members they were above the issue of conflicts of interest or improprieties and such. He further stated that Council needed to restore the integrity of the City Council and indicated that a referral to the Ethics Board would show the public that Council would live by their own rules.”

There are numerous omissions that need to be corrected. First, the mayor neglects to state that he told Councilor Brown if she wanted to vote she could.

The mayor neglects to point out that on August 15, 2015, the city’s ethics ordinance was revised, and the council intentionally removed any reference to an apparent conflict of interest. The only conflict that is identified in city ordinances (1-6-3) is one of a financial nature. Councilor Brown as an employee of the Foundation has no financial interest. In fact, the Foundation was not requesting or receiving money from the city, but giving the city money.

The reason the Board of Ethics (30-3-29) doesn’t have members is because of a revision to the ordinance. The council voted to remove all members as of April 12, 2021. The mayor and manager with the approval of the city council, had yet to appoint any new members.

When the Board of Ethics was approved the city council determined they could not hear referrals or make recommendations to the council, other than complaints filed with the city clerk. Despite my testimony that the Board be allowed to act as an advisory body - in addition to their role to hearing complaints - the council was unwilling to provide the Board the authority to act in this manner.

If the mayor is concerned with the city council’s accountability and the need to restore public trust perhaps he should be willing to abide by council rules, city ordinances, and the city’s charter.

In the proposed amended ordinance it states in part:

“ …For State of New Hampshire or federal government employment, a conflict of interest shall only arise when the matter before the Public Body involves the State or federal agency or department of which the officer or elected official or officer or elected official’s family member is employed…”

It completely ignores any conflict that would involve the county. Is this because the mayor’s wife is the chair of the Board of Commissioners of Merrimack County?

There is a reference in the Rules Committee’s January 3 minutes to Section 53 of the City Charter which states; “No elective or appointive officer or employee of the City shall take part in a decision concerning the business of the City in which the officer or employee has a financial interest aside from salary as such, direct or indirect, greater than any other citizen or taxpayer.”

Councilor Brown has no financial interest in the Library Foundation aside from salary than any other citizen or taxpayer as defined in Section 53.

Councilor Kretovic’s apparently false statements regarding the Library Foundation at the city council’s January meeting and the subsequent actions and statements by members of the city council and rules committee are baffling to me.

Are they upset that councilor Brown won an election over a strong supporter of the mayor’s and councilor Kretovic’s pet project to spend millions of dollars for the golf course? Are they upset because Councilor Brown is outspoken in representing her constituents, rather than following in lockstep with the mayor’s agenda? Are they embarrassed because of past actions they have taken to water down both the city ethics code and city council rules?

It was the city council that specifically removed the wording that would have made Councilor Brown’s relationship with the Foundation a conflict.

The mayor giving Councilor Brown permission to vote and no councilors challenging or objecting to the mayor’s ruling is similar to a complaint I filed against councilor Kretovic and was dismissed. The Board of Ethics stated they had no authority to second guess a city council ruling.

So my question to the council is what the hell are you doing? Why are you attacking a city councilor who did nothing wrong as defined by rules you insisted on?

Here are a few thoughts if you are truly interested in restoring integrity to the city council.

First follow the rules you have, not the rules you wish you had or the rules you used to have.

Stop making it difficult for the public to follow committee and board meetings. It has been a while since minutes were verbatim.

The recent city council priority session was convened not at the city council table but in the back of city council chambers. Even if CTV was available to record this meeting it would not have been able to use the cameras in the room. While it might appear to be more accessible than previous priority setting sessions at the golf course, the bottomline is that you have made a meeting that sets the priorities of the council (our city) for the next two years difficult to access.

I believe all public city meetings should at least have an audio recording. Ideally, there should be video and audio. In this media age there is no excuse that all city business that is conducted in public, isn’t available to the public in its original form. Not just from abridged minutes.

If you want to limit situations where there is a question of conflict, allow the Board of Ethics to make advisory recommendations. Allowing councilors and board members the opportunity to receive an opinion before, rather than after a possible conflict.

The Board of Ethics rules must be approved by the city council. The Board of Ethics should be allowed to function as an independent entity, not under the thumb of the city council. They should be allowed to determine their own rules without interference from the city council, like every other board in the city.

If you want the public to have trust in you, follow your own rules, stop making stuff up and stop making it difficult for the public to know what you are doing.