Concord changes city manager’s review process after receiving Right to Know requests

On Monday, the Concord City Council is scheduled to meet for 3½ hours to discuss the compensation and performance of the city’s top executive, City Manager Tom Aspell.

In the past, city councilors completed written surveys before that non-public session was held. This year, that won’t happen. The change comes after the Monitor asked for copies of past evaluation questionnaires in April through a Right to Know request.

Monday’s meeting will be held privately, based on a provision of New Hampshire’s Right to Know law that allows public bodies to meet in non-public sessions to discuss “the dismissal, promotion or compensation of any public employee or the disciplining of such employee.” Under that subsection of 91-A, the session could be held publicly if the city manager requested it.

Aspell’s evaluation process is governed by the Concord City Charter, which dictates that the city council evaluate the city manager’s performance every April following the manager’s first work anniversary.

“After such evaluation, the City Council shall determine, in public session, whether the City Manager’s overall performance in office has been satisfactory or unsatisfactory,” the charter says. The council also determines the city manager’s compensation. He is currently one of the highest paid government officials in the state of New Hampshire.

Aspell’s earnings have increased more than 35% in the last seven years, twice the rate of inflation. Last year Aspell earned $210,191 in base pay, a 2.9% raise from 2020. The city also contributes to two pension funds for him.

Former Ward 6 City Councilor Linda Kenison, who served a total of 13 years on the council, said councilors would typically begin the manager’s evaluation by individually answering a “pretty extensive questionnaire.”

At-Large City Councilor Fred Keach said that in the past, councilors had filled out written responses through the online survey tool SurveyMonkey, which became a physical document. “But that’s not happening this year,” Keach said. Ward 2 City Councilor Erle Pierce said he had received a survey prior to the performance review session during the last two years, but he had not received one by Thursday afternoon.

Once the surveys were complete, a smaller committee would combine councilors’ comments, from areas where the city manager’s performance has been outstanding to areas for improvement. The council would go over the collated comments together and make edits to vague or poorly worded responses before the feedback went to the city manager. During Aspell’s performance review session, he could address those comments and ask questions.

Longtime councilors said the evaluation process has evolved over time. “It’s been fine-tuned and modified,” said At-Large City Councilor Byron Champlin.

On April 5, The Concord Monitor requested copies of materials evaluating Aspell’s 2021 performance via a Right to Know request. On Friday at 7:30 p.m., the Monitor received a response from the city saying it was denying the request to publicly release the records.

City Solicitor Jim Kennedy weighed Aspell’s interest in keeping his evaluation private versus the public’s interest in knowing how the city CEO is doing his job. Kennedy decided Aspell’s interest in non-disclosure wins.

Kennedy argued that the public’s interest in viewing records used in Aspell’s evaluation was limited to the public “satisfactory or unsatisfactory” council vote authorized by the city charter. Therefore, Aspell’s interest in keeping the records private trumped any public interest in revealing them.

The Monitor also requested city councilor evaluations of Aspell from 2020, 2019 and 2018 in a request submitted on April 12. On April 15, Breton wrote that the city would need approximately 30 to 60 days to complete the request.

Recent rulings by the New Hampshire Supreme Court have recognized the public’s interest in employee personnel records and forced municipalities to turn over records when requested.

“Now that I’m not on the council and I’m sitting out there, I would kind of like to know what’s being said,” Kenison said of making the evaluation process more transparent. “Being away from the council, my viewpoint has changed.”

Some city councilors, including Pierce, Ward 9 City Councilor Candace Bouchard and At-Large City Councilor Nathan Fennessy, said they were satisfied that the council was following the charter in how they conducted the manager’s evaluation.

“At the end of the day, the voters put us in place to do what we’re doing and that’s to make sure the city is run well and that we put the right people in place to do it,” Pierce said. “If someone wanted to make it more transparent, you would have a charter commission.”

However, other councilors expressed mixed feelings about the opaque process for evaluating the city manager, who earned nearly $70,000 more in salary than Gov. Chris Sununu last year.

“I do agree with you that the community deserves some transparency about ‘how does this happen?’ ” Keach said. “Why do we pay him that money and is he doing his job?”

Keach, who is a former police officer, compared the city manager’s higher responsibility to be accountable to the public to that of a cop.

“If you sign up for that job, then you’ve got to be prepared to deal with that kind of scrutiny,” he said. “If you’re not comfortable with that, you shouldn’t sign up for that.”

Still, Keach said making the evaluation process public could be unfair to the city manager and scare away future candidates.

Ward 10 City Councilor Zandra Rice Hawkins said the process of how the review is conducted could be made clearer to the public.

“I think it would benefit the city council to publicly share the process that is used, if there are questions. Being open, transparent and accountable to the public is part of our charge as public officials,” Rice Hawkins said.

But she said it would be “inappropriate” to make the manager’s evaluation public.

“Public sector employees are entitled to employment privacy like anyone else, to maintain an honest and open employer and employee relationship,” Rice Hawkins said. She worried that a public process would become politicized, providing opportunities for grandstanding by councilors or discouraging candid feedback.

For the past 22 years, Durham Town Administrator Todd Selig has provided a case study of the public evaluation of a municipal leader. Selig holds his performance review in a public session and releases his evaluations by Durham select board members, a practice he started to enhance public trust when he took his position following an acrimonious period in Durham’s history.

“We have not found this approach to be stifling. We have not found this approach to result in grandstanding. Rather, it tends to work in just the opposite way. It has promoted thoughtful, measured and useful outcomes,” Selig said.