Commentary: Portsmouth owes Planning Board member Jim Hewitt an apology and legal fees
Portsmouth Planning Board member Jim Hewitt has been charged by City Hall staff with violating NH RSA 91-A (the Right-to-Know Law) and the jury standard.
The former is a state law intended to guarantee that the public’s business is conducted in public, to the extent practical. The latter requires members of municipal land use boards to view proposals for real estate development with an open mind, in the same manner that is required of a jury in NH Superior Court, hence the term “jury standard.”
In NH we are reliant on citizen volunteers such as Mr. Hewitt to fill essential positions in municipal government. These folks bring a diverse range of viewpoints and expertise to local government, and they ask a lot of great questions. I bear witness to this dynamic in my professional capacity as an advisor to municipal land use boards in southeast NH and southern Maine, and have been doing so continuously for the past 40+ years.
That to which Jim Hewitt stands accused is commonplace in NH. Members of municipal land use boards routinely violate 91-A and the jury standard. In a large majority of cases, this is done unwittingly. A Planning Board member, for example, who clicks on Reply All just out of habit, has likely violated 91-A.
The task of educating and reminding our citizen volunteers of their responsibilities under 91-A and the jury standard is never ending.
NH municipalities (other than Portsmouth) value their volunteers and treat them with respect. For that reason, the forced removal of volunteers from land use boards in NH is extremely rare, and it is never done in response to procedural errors.
In the 1980’s, the City of Dover alleged malfeasance as the rationale for removing a fellow named Williams from the Planning Board. The matter eventually came before our state’s highest court. The justices not only found in favor of Mr. Williams, but they also took the opportunity to remove every last vestige of ambiguity from the statutory meaning of malfeasance as it relates to members of municipal land use boards. See Williams vs. Dover, 130 N.H. 527, 529 (1988).
The Williams case law exonerates Mr. Hewitt. City Attorney Morrell knows this. Or she should.
Mr. Hewitt’s actions do not cross the threshold that was clearly delineated by the court in 1988. It is not even close. In the absence of malfeasance (or alternately, “inefficiency” or “neglect of duty”) RSA 673:13 does not permit the City Council to remove Mr. Hewitt from the Planning Board prior to the expiration of his term.
Watch the video of the City Council meeting of January 16, commencing at 1:54. When Ms. Morrell was asked by councilors for details on the procedures that will govern defendant Hewitt’s upcoming trial, it was plainly evident that our city attorney was making this stuff up on the fly.
Who will advise the City Council during this show trial? Ms. Morrell explained that the City will solicit the services of a volunteer lawyer for that task .
A volunteer lawyer? Really? City staff is not treating this matter with the seriousness that is warranted.
There is also a little problem with Ms. Morrell’s proposed jury, comprised as it is of our nine city councilors. A quorum, i.e. a majority of councilors, has been known to convene in plain sight at a local pub to discuss topics other than the weather. These little after-hours socials are a textbook example of a 91-A violation.
Should this particular jury be sitting in judgement of a citizen who stands accused of violating 91-A?
Well, that could get a bit awkward.
The trial will be accompanied by a public hearing, as required by RSA 673:13. City Attorney Morrell declared on January 16 that the public hearing will be one in which the public is not allowed to speak. Try to wrap your mind around that one. As Dorothy once remarked to her little dog, “Toto, I don’t think we’re in NH anymore.”
Or perhaps it was Kansas.
Were the Council to remove Mr. Hewitt from the Planning Board, subsequent decisions of the board could be subject to legal challenges. In baseball, they call this an unforced error. Our legal department is proving to be more adept at creating problems than in solving them.
On January 13, as many of our South End neighbors scrambled to protect their homes from a rising sea, I was struck by the degree to which City Hall was unprepared for the flood. On that date, our city manager failed an important test of government’s fundamental raison d'être, i.e. the protection of its citizens.
City staff did however find the time to marshal public resources in pursuit of a personal vendetta against Mr. Hewitt.
John Bohenko would not have permitted this type of mean-spirited campaign. Nor would his predecessors. What our community needs is a city manager who values and respects our citizen volunteers.
The City Council should reimburse Mr. Hewitt for his legal expenses. And then they should direct City Manager Karen Conard to issue a public apology.
Tom Morgan is a Portsmouth resident. He chaired the city’s Zoning Board of Adjustment from 1987 to 1990.
This article originally appeared on Portsmouth Herald: Commentary: Portsmouth NH owes Planning Board member Hewitt an apology
