My Turn: Oops, they did it again – Your right to know obstructed?

For the Monitor
Published: 7/9/2020 8:35:49 AM

On June 15, the Concord City Council discussed a statement condemning racism and police brutality and determined they would further discuss this item at their June 22 meeting.

The statement the council voted and approved on June 22 has them taking a principled stand against racism and police brutality. The statement also commends our police force for the initiatives they have taken to avoid the situations we read about in other communities.

The end result is something I hope we can all agree on. The process, how the city council got there, is what is concerning. New Hampshire state statutes clearly state that the public’s business must be conducted in a manner that is open and accessible to the public.

Here’s what the Preamble for RSA 91-A – better known as the Right to Know Law – states: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.”

On June 1, Ward 10 Councilor Zandra Rice Hawkins sent two emails to the mayor, city manager and police chief. In her first email, she asks if the city or the police department had issued a statement concerning the death of George Floyd. She goes on to state; “If not, I would like for this [to] be done.”

She further states: “Please let me know how I can be of assistance, if any, and in any case let me know your willingness on issuing a statement from one or more of our official channels so that I know how to best proceed. Thank you.”

The obvious issue with this email is it appears a councilor (without the consent of the full body of the city council) is directing the city manager to have the administration make a statement; “If not, I would like for this [to] be done.”

Had this been Rice Hawkins only email, it may have resulted in a reminder that individual councilors are not permitted to direct members of the administration on how to perform their jobs or what they should be doing. But that is not what happened.

During a span of approximately two weeks, over 20 emails were circulated between Rice Hawkins and members of the city council. The reason it appears she is not technically in violation of the State’s Right to Know law is that a quorum of members of the city council appear to not have responded to her. But the full extent of contacts and conversations between members of the city council would be difficult to determine, even after the Right to Know request.

On June 9, at 3:44 p.m., Councilor Rice Hawkins sent emails to members of the city council, the city manager and the police chief regarding a statement on Black Lives Matter, racism and police brutality. In this email she acknowledges it is her understanding “...it would be inappropriate to have a back and forth conversation over email...”

But following that email a flood of emails from and to her from other councilors ensued.

Here’s just one example from At-Large Councilor Byron Champlin; “Thanks for putting this in play. Let me know when you have time to talk.”

On June 15, Rice Hawkins emails Champlin about “...requesting a non-public session to further discuss the exact language?”

And in a separate email to the mayor; “Thanks for the conversation over the weekend and talking everything thru. I’ll use the comments section tonight as you recommended to advance the ideas of a council statement. My intention is to make a motion for the City Council to issue a statement and to request a non-public session to further discuss the exact language.”

On June 15, in an email to Champlin and Ward 4 Councilor Meredith Hatfield, Rice Hawkins asks for “thoughts” on her Black Lives Matter statement.

When Rice Hawkins acknowledged on June 9, that it was her understanding that “a back and forth conversation over emails” is not permitted, why did numerous councilors respond to her emails and why did she appear to solicit their comments?

While the majority of the emails she sent on June 15 were addressed to Champlin with a cc to Hatfield, Rice Hawkins also received responses from Ward 1 Councilor Brent Todd and on June 16, Ward 8 Councilor Gail Matson.

A Right to Know request to the city, reveals at least six members of the city council (including Rice Hawkins) participated in some manner discussing the emails. But we don’t know the extent of conversations that occurred in addition to the emails.

On June 15, in an email time-stamped 4:26 p.m., Rice Hawkins writes that she “....hoped to call around this weekend but spent more time on the phone with constituents than expected, so I am just going to move forward with proposing we make a statement...” She also indicated in a separate email that she had a conversation with the mayor.

On a number of occasions, Rice Hawkins suggested that the discussion regarding a statement for Black Lives Matter and police brutality, be held in a non-public session.

It wasn’t until 6:56 on June 15 – the night of the city council meeting – that she writes in an email to all city council members that she had just been informed that the statement will need to be discussed in a public session.

In an email sent to Champlin and cc’d to Hatfield at 6:57 p.m. on June 15, Rice Hawkins writes; “...My only regret is that I haven’t had an opportunity to ensure every councilor has weighed in.”

And on June 15, at 10:09 p.m., (after the city council meeting, where the mayor had cautioned against continued email correspondence) Rice Hawkins sends an email to the mayor, city manager and police chief, with a draft of the proposed statement. Included in this email is an invitation for the “Police Department to co-sign a statement condemning racism and police brutality...”

Shouldn’t this be a public document and shouldn’t the request for the police department to sign a statement be discussed at a city council meeting and voted on by the full council?

How is it possible that a city councilor can be so unaware of the requirements for holding public hearings and the public’s right to have access to those meetings? And as much as a city councilor is responsible for their own actions, how is it possible that members of the city council did not inform Rice Hawkins that she was heading down a slippery slope of sequential emails, that are prohibited by the State’s Right to Know Law?

Why didn’t Rice Hawkins listen to herself when she acknowledged on June 9 it was her understanding “...it would be inappropriate to have a back and forth conversation over email...”?

Public bodies in New Hampshire are required to adhere to a process that with few exceptions requires the public not to just be able to purchase the sausage, but to know how the sausage is being made.

Policy and ordinances can result in difficult discussions and even disagreements, but in New Hampshire, public bodies aren’t allowed to hide those conversations, just because they don’t feel comfortable discussing them in public.

On numerous occasions, I have heard the mayor state how open and accessible the council is in conducting your business. And our city solicitor provides Right to Know training for all city boards.

It shouldn’t take a comment by the mayor at a city council meeting to realize that correspondence between members of the council if not violating the law, certainly violated the spirit of your right to know. And if we knew the full extent of contacts (other then the emails) would that have led to a violation of the Right to Know law?

It isn’t acceptable that any member of the city council is unfamiliar with what is allowed to be discussed behind closed doors. And let’s remember that the New Hampshire Supreme Court just ruled on limiting what can be hidden from you.

So what happened between June 1 through the 15, until four minutes before the start of the city council meeting, when more than 20 emails were sent back and forth between city council members, with an additional email from Matson sent on the 16th?

Oops.

(Allan Herschlag is a former member of the City Council.)


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