Concord should make contract costs public before vote, lawyers say

  • Concord City Hall

Monitor staff
Published: 3/30/2019 8:43:55 PM

When it comes to public contract information, cities should provide maximum transparency, right-to-know advocates say.

Concord’s practice of making no information about public contract cost items public prior to city council adoption runs against the spirit of state law, three attorneys said. Even if the practice is legal, Concord officials owe it to the city’s citizens to provide more information.

Some of the city’s at-large councilors said they might discuss the issue, but added that few people have brought it up to them. The city council’s agenda for their April 8 meeting isn’t out yet, and it’s unclear if it will be brought up.

Concord City Solicitor Jim Kennedy said a policy change “is something that Concord may pursue.”

Concord is among three cities in the state that choose to provide no information to the public prior to a vote on a labor contract. Keene and Claremont are the other two.

Nine of the Granite State’s 13 cities make the details of collective bargaining agreements public prior to legislative body approval, according to a Monitor review. Berlin reads the details of the cost items into the record just before a vote.

‘Greatest possible public access’

Nothing stops municipalities from making cost items public after ratification by the union and the city’s bargaining team, said Gilles Bissonnette, legal director for the New Hampshire chapter of the American Civil Liberties Union. And those that don’t make cost items public should consider doing so.

“They should try to be as transparent as possible in order to give the public the ability to evaluate the agreement and provide insight to the board,” he said. “That’s not what’s happening right now, and I hope the procedure is reconsidered.”

Bissonnette said the information contained in cost items can be vital to taxpayers, pointing to Concord’s current negotiations with its police associations. The police department is the second-most expensive department salary-wise in the city.

“These are serious, serious contracts that cost a lot of money, and in this instance, we’re talking taxpayers’ money,” Bissonnette said. “They should have a chance to voice their opinion.”

The state’s right-to-know law is intended to provide “the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” Not disclosing the cost of an agreement the public is expected to pay for through their taxes is contrary to the purpose of the law, Bissonette and other attorneys said. 

Richard Gagliuso, an attorney with Bernstein Shur and a director at the New England First Amendment Coalition, said public contracts don’t come up often in his work, but they should.

“I think people may look at the exemption in the RTK law for ‘strategy or negotiations with respect to collective bargaining’ and assume that anything having to do with collective bargaining, at any stage of the process, is off limits. That is not the case,” he wrote in an email.

Kennedy, who did not return phone calls requesting an interview for this story, has said the city views negotiations as complete when the leaders of both bargaining parties – the union’s representative and the city manager – have signed and executed a contract, which is sometimes weeks after a vote is taken.

Concord’s city council discusses and debates the cost items behind closed doors, citing an exemption in the right-to-know law that allows “strategy or negotiations” to be discussed outside of a public meeting.

But Gagliuso said the part of the law that excludes “strategy or negotiations with respect to collective bargaining” from the definition of “meeting” is an exception to a rule that is meant to favor public access, and should be construed narrowly.

Concord’s decision to disclose no information to the public, as well as what Gagliuso said was an “expansive” view of the nonmeeting clause, “leads to important commitments of public funds being made essentially in the dark,” he said.

William Chapman, an attorney with Orr & Reno who has represented the Monitor in the past, said the public at least has the right to know what the cost items are prior to a vote so they can understand the vetting process the items went through.

They can’t do that if the public isn’t aware the cost items will be decided on, Chapman said.

“If all you know is that the city council is going to meet at 7 p.m. at city hall, does that notice mean anything to you? It probably doesn’t,” he said.

Chapman pointed to the 1974 court case, Talbot v. Concord Union School District, for guidance.

In that case, a Monitor reporter sought access to the collective bargaining sessions between the Concord Union School District and the Concord Education Association. The state’s Supreme Court ruled ultimately those sessions are protected under the state’s right-to-know law.

But the court also found that those bargaining sessions “serve only to produce recommendations which are submitted to the board for final approval,” according to the ruling.

The approval of those recommendations must happen in an open meeting in keeping with RSA 91-A:3, “thus protecting the public’s right to know what contractual terms have been agreed upon by the negotiators,” the ruling reads.

Furthermore, the Supreme Court made clear that municipalities must “advise all affected parties of their opportunity to be heard in public meeting and to be apprised of relief sought,” with respect to land use and zoning issues.

Using the same logic, in the case of public contracts, the affected party is “the public that ends up footing the bill,” Chapman said.

‘A solution lookingfor a problem’

There is nothing in the city’s charter or city council rules that dictate how the council handles public contract cost items.

But if the practice were to change, it would have to come from the city council, said Kennedy. 

In an email, the city’s solicitor said he was “unable to give … a legal opinion on all of the potential methods, but one option is that one of the councilors could raise the issue during a public meeting.”

Some of the city’s at-large councilors said they would be interested in having a discussion on the issue, but stopped short of saying whether they would initiate it themselves.

“I think we just need to make sure that whatever we do, we retain the flexibility to negotiate effectively with the unions and in good faith,” said Byron Champlin. “...I’m not averse to discussing it.”

Fred Keach said constituents have never approached him about public contracts’ cost items. But that doesn’t mean the conversation couldn’t happen.

“I’m not sure this isn’t a solution looking for a problem,” he said. “The more transparency the better, that’s my general philosophy for city governments.”

While Mark Coen said there is “always room for improvement” in how the city handles things, he said having cost items available prior to a public vote could potentially impact negotiations going forward.

“I see the potential for a core group going to the meeting before the ratification and show disfavor one way or the other,” he said. “A vocal group on either side could do that … it may not be the best thing for the employees or the taxpayers.”

Keach said he thought the most appropriate way to handle the situation would be to make a recommendation to refer the issue to the city’s Financial Policy Advisory Committee, which he and the other at-large councilors sit on. There, they could discuss making a policy change.

“It really is a driver of the budget,” he said. “But there’s not a lot of discussion when it comes to that. It’s possible people have a lot of faith in the competitive bid process.”

Concord Mayor Jim Bouley and City Manager Tom Aspell did not return requests for comment on this story.

(Caitlin Andrews can be reached at 369-3309, or on Twitter at @ActualCAndrews.)

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