Judge dismisses lawsuit seeking to remove Portsmouth city councilor. Here's why.

PORTSMOUTH — A Superior Court judge has dismissed a lawsuit brought against City Councilor John Tabor by two city residents.

Justice Lisa M. English granted a motion to reconsider filed by the city — which was also named in the lawsuit — on behalf of Tabor.

The recently issued ruling reversed a previous decision made by the court initially rejecting the city’s motion to dismiss, and led to a dismissal of the lawsuit, according to the judge's four-page decision.

The lawsuit — which sought to have Tabor removed from the City Council — was filed by residents Mark Brighton and Arthur Clough.

Taxpayer standing rejected by judge

“Upon review the court finds that plaintiffs (Clough and Brighton) lack taxpayer standing to bring this action because they do not challenge the specific government spending action in question — the city’s decision to enter a contract for auditing services,” English states in the decision dismissing the lawsuit. “Instead plaintiffs take issue with certain circumstances surrounding the firm selection process, namely Tabor’s allegedly improper disclosure of information at an Audit Committee meeting.”

“Notably however, the Audit Committee was only responsible for recommending a particular accounting firm, and it did not make the initial decision to conduct the audit,” English added.

English pointed out Clough and Brighton did not argue that Melanson, the firm Tabor initially recommended, was more expensive than CLA (Clifton, Larson, Allen), “only that CLA was ranked higher in the selection process.”

“Therefore the court is not persuaded by plaintiff’s contention that the Audit Committee recommending one accounting firm over the other, after the decision to conduct the audit had already been made, constituted spending or an approval of spending,” English stated in the decision.

Assistant City Attorney Trevor P. McCourt agreed Wednesday the judge’s decision focused on whether she thought Clough and Brighton had taxpayer standing.

“The issue of standing is a constructional one, and there’s certain limits on who can bring a lawsuit in certain courts,” McCourt said. “In terms of taxpayer standing, the court ruled they did not meet those standards.”

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Tabor’s comments about Audit Committee

Clough and Brighton filed the lawsuit in December, asking the court to “order the dismissal of John Tabor from the Portsmouth City Council.”

They argued in the lawsuit that as Portsmouth taxpayers, “they have standing to seek redress for the unlawful acts of their public officials.”

They explained in the lawsuit that in 2022 the Audit Committee, which Tabor served on in his role as a city councilor, put out a request for proposals for accounting firms to audit the city’s fiscal year ending 2022.

“The Audit Committee had two (firms) with whom they were negotiating and determining whom would serve as the external auditor for the city,” Brighton and Clough said in the lawsuit. “However, at a City Council meeting on March 21, 2022, Councilor John Tabor announced the Audit Committee had finished evaluating firms and there were two proposers, Melanson and Clifton, Larson, Allen (CLA).”

“Tabor also indicated the Audit Committee process was flawed because there was communication via text which occurred during deliberations between a member of the Audit Committee” and one of the firms, Brighton and Clough stated in the lawsuit.

They added that Tabor’s disclosure of this information “completely disqualified the work of the Audit Committee.”

“As a result, the Audit Committee was not allowed to present their voted choice of CLA and rationale to the City Council, and Melanson was recommended by Tabor himself to be chosen by the City Council for a one-year retainer,” Clough and Brighton said in the lawsuit.

They maintained that “by announcing the specific details of the Audit Committee’s process and the numbers and names of the bidders, which were under seal by vote of the committee, Councilor Tabor compromised the city’s ability to negotiate a favorable contract with the two potential firms.”

Tabor pleased by decision and firm's hiring

Tabor, the retired former publisher of Seacoast Media Group, said he was “pleased the court applied the law to find the petitioners do not have standing.”

“I’m also pleased that in spite of the lawsuit the Audit Committee kept working and worked well together and got our first new auditors in decades for the city,” Tabor said Wednesday.

He noted the City Council voted to authorize City Manager Karen Conard to negotiate with CLA to hire the firm to do the audit.

Regarding his comments at the council meeting and how they may have affected negotiations, Tabor said, “I was very intentional about what I said that night and ran it by the city’s legal staff first.”

Reached Wednesday, Brighton declined to comment on the judge’s decision regarding Tabor. He said he and Clough are contemplating what future legal options they could take related to the issue.

Brighton and Clough have gone after city and its leaders before

Brighton and Clough have filed complaints against the city and city officials over the years. In 2022, the duo filed ethics complaints against Tabor and two other city councilors, Joanna Kelley (the assistant mayor) and Rich Blalock. All three complaints were dismissed by the mayor and city attorney.

In 2019, Clough and Brighton led a group taking Portsmouth to court over approval of a Portsmouth Housing Authority 64-unit affordable housing project on Court Street. The court ruled against them and upheld the decision on appeal in 2019. The Ruth Lewin Griffin Place apartments were subsequently built and opened in 2022.

In 2016, Brighton's ethics complaints against the city's principal planner and Historic District Commission chairman were rejected by the mayor and city attorney.

This article originally appeared on Portsmouth Herald: Judge dismisses lawsuit seeking to remove Portsmouth city councilor