To the Editor:
In the more than 30 years that I have lived in Portsmouth, I have seen our City Council and our city administration do some pretty dumb things, but I can’t remember the last time I saw anything that was the equal of the City Attorney’s frivolous complaint against Planning Board member Jim Hewitt and the current effort to remove him from office.
When you tear away all of the fluff and pierce through the nonsense, what the complaint really boils down to is that Mr. Hewitt disagrees with some of the opinions of the planning department, the legal department, and the City Manager and that he’s doing his job a little too well for their tastes, voting against projects that they think ought to be approved, and making developers toe the line.
However, none of those things are valid grounds for removing a land use board member from office.
If you can remove Mr. Hewitt from the Planning Board on the grounds recited by the City Attorney in her written complaint, then you can remove any land use board member any time that he or she takes a position which clashes with that of the City Manager or otherwise incurs the City Manager’s displeasure.
The complaint against Mr. Hewitt is meritless and should be dismissed.
My Analysis
The starting point for the analysis is that under the relevant statute, RSA 673:13, there are only three grounds upon which you can remove a Planning Board member or other land use board member from office: inefficiency, neglect of duty, or malfeasance.
That’s it. Inefficiency, neglect of duty, or malfeasance. Those are the only grounds upon which a land use board member can be removed from a land use board in New Hampshire.
Inefficiency
In Mr. Hewitt’s case, I don’t see how anybody can possibly say–and I don’t think that anyone in the city administration is even claiming–that Mr. Hewitt is guilty of inefficiency. On the contrary, his work output is prolific.
Neglect of Duty
Nor do I see how anyone can say that he is guilty of neglect of duty. He always does his homework and always comes well prepared to every Planning Board meeting; and as far as I know, he has never missed a meeting, or at least has never had an unexcused absence. In addition, he has more expertise in the subject matter of the Planning Board’s functions than anyone else on that board except its chairman, Rick Chellman. He is a registered professional civil engineer, and he knows his way around the Registry of Deeds and knows his way around the zoning ordinance and the other land use regulations.
So, I don’t see how anyone can possibly say that he is guilty of neglect of duty, and it is not my understanding that the City Attorney and the city administration are even contending as much.
Malfeasance
That leaves us with malfeasance, but nothing that Mr. Hewitt is being accused of doing even comes close to that.
When I think of malfeasance, I think of corruption, or dishonesty: theft of public funds, or taking a bribe, or dispatching city employees from the maintenance department to mow your lawn or trim your hedges or do landscaping at your home while on the city payroll, without your paying for it–in effect, having the taxpayers pay to have your landscaping done for you.
Nothing that Mr. Hewitt has done, nor anything that he is even accused of doing, even remotely approaches anything like these examples.
Black’s Law Dictionary defines “malfeasance” as “a wrongful, unlawful, or dishonest act; esp., wrongdoing or misconduct by a public official”. The most recent edition of Merriam-Webster’s Collegiate Dictionary defines it simply as “wrongdoing or misconduct esp. by a public official”.
There must be something more than a mere error in judgment or a mere difference of opinion in order to meet that standard, and the term also connotes an element of dishonesty or other nefariousness. As I say, nothing that Mr. Hewitt has done, or that he is accused of doing, even comes close to that.
It is beyond the scope of this piece for me to engage in an extended scholarly discussion concerning the legal concept of malfeasance, and I would not be the one to catalog all of the various things that might constitute it, anyway. However, let me enlighten everyone as to a few of the things that malfeasance isn’t:
Disagreeing with the opinion of the Portsmouth planning director is not malfeasance.
Disagreeing with the opinion of the Planning Board chairman is not malfeasance.
Disagreeing with the opinion of the City Manager or having a personality conflict with her or any other member of the Planning Board, is not malfeasance. Taking a position in opposition to what the City Manager thinks ought to be the City’s public policy is not malfeasance, and neither is voting to disapprove a development project that the City Manager thinks ought to be approved. The City Manager does not run the Planning Board; she is only an ex officio member, and Mr. Hewitt does not take orders from her.
Sending a memo to the legal department, asking for legal advice concerning a particular project, and copying the entire membership of the Planning Board members in on the memo, is not malfeasance.
It is probably not even a violation of the Right-to-Know Law, RSA 91-A, for seeking and receiving legal advice, at least in a litigation context, is one of the specific exemptions from the requirements and restrictions of that Act. (See RSA 91-A:2, I(b).) But in any event, the cure for a violation of the Right-to-Know Law, at least in an instance like this, is to simply make the memo public.
Voting the wrong way on a particular project–even if your vote was totally wrong–is not malfeasance (assuming, of course, that nobody bought your vote and that you didn’t accept a bribe in exchange for it). As long as your vote was cast in good faith, an errant vote is not ground for removal from office, even if that vote was totally empty-headed and wrong.
Even sheer stupidity is not ground for removing a land use board member from a land use board. If you’ve appointed a given individual to a land use board and if he later turns out to be a thundering moron, your remedy is to wait for his term to expire and then to simply not reappoint him. However, even rote, abject stupidity is not a ground for removing a Planning Board member from the Planning Board.
And finally, and most importantly, even disagreeing with the opinion of the legal department itself is not malfeasance, especially if that opinion is wrong.
Winslow v. Town of Holderness
On that subject, I see that in her written submissions to the City Council the City Attorney claims that Mr. Hewitt violated the rule of the New Hampshire Supreme Court’s decision in Winslow v. Town of Holderness.
It just so happens that I am well familiar with the Winslow case. I have cited it a number of times in the various land use board appeals that I have taken over the years, and it was the one of the centerpieces of one of them. I guess the City Attorney and I must have different copies of the court’s decision in that case, for my copy certainly doesn’t say the same thing that her copy apparently does. The City Attorney is also wrong in saying that Mr. Hewitt violated the “juror standard” and that he conducted himself improperly in acting “outside of the record” of the proceedings. Or, at least, hers is much too simplistic an analysis. She has correctly described the standard insofar as it applies to courtroom trials, where the judge decides what evidence is admissible and what evidence is to be excluded, and where the jury is instructed that it can only consider the evidence that has been admitted into the record. But land use board proceedings are a bit different.
In land use board proceedings, you always have to go outside the proceedings to at least some extent. I sat on the Portsmouth Zoning Board of Adjustment for three years, and I always made a point of going out and actually looking at the properties that were the subjects of the petitions that were before the board (and most of the other members of that board did so, too), for there’s simply no substitute for actually, physically viewing the property if you want to fully understand the applicant’s petition and want understand what it is that you’re being asked to decide. Not even color pictures of the property and the site can fully replicate an actual, on-site viewing of the premises. It’s just not the same.
For that matter, not all land use board petitions are even accompanied by color pictures; in many cases the Planning Department’s files do not even contain color pictures–or indeed any pictures–of the properties that are the subjects of the applicants’ petitions. So, in land use board proceedings you’re always going to be considering something that is not part of the written record.
Secondly, the New Hampshire Supreme Court has specifically said that land use board members are entitled to consider their own familiarity with the property that is the subject of a given petition and to consider their own personal knowledge of its location, setting, and surrounding conditions.
For those of you reading this who may be lawyers, the case which says that is Vannah v. Town of Bedford, 111 N.H. 105 (1971). As a land use board member, you’re not supposed to be blind, deaf, and dumb, and you’re not supposed to be oblivious to your surroundings and to the conditions in your community.
The “juror standard” does not require that you be a stuffed shirt, a potted plant, or an empty vessel, who doesn’t know anything about anything and who doesn’t have any opinions. When I fought the HarborCorp project several years ago, were the ZBA members supposed to ignore the fact that there were already huge traffic problems extant in the vicinity of the project site and that the developers’ plan was only going to exacerbate them? I think not. Under the holding of the Vannah case, a land use board member is entitled to take into consideration the surrounding conditions of the property which is the subject of the application and to consider other relevant circumstances.
If the rule of the Vannah case means anything, it surely means that if a land board member is aware of a dangerous condition which serves as a reason why a particular land use application should not be approved, he has a right to–and should–bring that condition to the attention of the other board members and urge it as a reason for disapproving the application. As applied to Mr. Hewitt, if he is aware that a certain parcel of property which is being proposed to be developed is contaminated with hazardous waste material which will present a health hazard to the eventual occupants or other users of that property after the project is completed, then I think that not only does he have a right, but he has a duty to bring that circumstance to the attention of the other members of the Planning Board, and I think that he is acting well within his rights in urging that the applicant’s proposal be disapproved on that basis. I also think that he has a right to do so without being accused of “going outside the record.”
In this case, I also consider it to be significant that the information that Mr. Hewitt brought to the Planning Board’s attention was already in the public domain and in fact was widely known.
In fact, it was part of a lawsuit in federal court. He merely made one of the federal court’s written opinions part of the record in the Planning Board proceeding, raising it as an issue for the other members’ consideration so that they could make up their own minds and reach their own conclusions, so that the Planning Board would hopefully not make a bad decision. Given the New Hampshire Supreme Court’s decision in the Vannah case, that hardly seems to be a ground for removal from office.
In addition, the City Attorney’s accusation of “bias” against Mr. Hewitt is sheer nonsense. She claims that he is “biased” because he is aware of a condition or circumstance that militates against approval of the project in question and because that has caused him to be against the proposal. This is flawed logic, as a simple hypothetical example should illustrate:
If a developer were to come before our City Council or our land use boards with a proposal to erect a building having the size and height of the Empire State Building in the middle of Market Square, I would certainly hope that it would be immediately obvious to our city councilors and land use board members that that was an idiotic idea, and I trust that they would not have to wait until the public hearing on the developer’s proposal was convened before they reached that conclusion.
That’s not “bias”; that’s just simple common sense and a recognition of the obvious. As I said before, as a land use board member you’re not expected to be blind, deaf, and dumb, and you’re not expected to be oblivious to your surroundings.
The Winslow v. Town of Holderness case does not actually say that you can’t form an opinion about a proposal before the time that the public hearing on the project is conducted; it merely says that you have to keep your mouth shut and that you can’t state that opinion publicly until then. Under Winslow, it’s not a disqualifying “bias” to form a negative opinion about a bad project until the time of the hearing–or a favorable opinion about a good one–as long as you keep that opinion to yourself until that time. The City Attorney’s analysis of the “juror standard” and her interpretation of the Winslow case are simply incorrect.
Finally, if our City Manager, our City Attorney, and our City Council proceed along their present course and if they continue to pursue their complaint against Mr. Hewitt, I think that they’re headed straight for trouble.
Mr. Hewitt has retained a very estimable law firm to represent him in the defense of the city’s complaint, the firm of Orr & Reno, in Concord, and that firm has already made clear its intention to sue the City for defamation if the complaint against Mr. Hewitt goes any further, based on the highly uncomplimentary statements about Mr. Hewitt that the City Attorney made and published in her written complaint against him.
I also think I see the makings of a civil rights claim as well, and if Mr. Hewitt prevails on the latter claim he will likely be entitled to take his attorney’s fees out of the City’s hide, in addition to recovering regular compensatory damages.
The cost to Portsmouth taxpayers will be high.
There is no way that the City can win such a lawsuit, for even if it wins, it will still lose. (Or, at least, the taxpayers will.) If the City hires a law firm of the same stature as the ones that it hired to defend itself against the lawsuits previously brought against it by Jim Boyle (the owner of the Toyota dealership) and Michael Kane (the principal of the Redgate/Kane Company, who sued the City twice over the McIntyre Building fiasco), the City will be presented with a massive legal bill for the defense of Mr. Hewitt’s lawsuit, even if it ultimately prevails on the merits.
And, of course, there will be other costs: the lawsuit will tie up the time of our City Manager, City Attorney, and other city staff as they meet with the City’s attorneys, give depositions, and potentially testify at trial, when they should be spending their time on activities that are far more productive.
And, of course, there’s the matter of a potential jury verdict in Mr. Hewitt’s favor on his claims. You may have noticed that defamation suits are bringing in some pretty large jury verdicts these days. If you don’t want to take my word for it, just ask Rudy Giuliani and Donald Trump.
I don’t think that a New Hampshire jury would return a verdict quite as big as the ones against Trump and Giuliani, but the City nonetheless faces the prospect of considerable financial exposure if Mr. Hewitt’s libel suit is successful.
The bottom line is that our City Manager, our legal department, and our City Council are rushing in where angels fear to tread. They are virtually begging for a lawsuit which, one way or the other, the City and its taxpayers cannot possibly win. Even if they win, they’ll still lose, for the City will still be stuck with the tab for the legal fees for the defense of the suit. The City Council and the city administration should put a stop to this nonsense and should dismiss this meritless, mean-spirited complaint against Mr. Hewitt right now, for they are asking for trouble if they further pursue it. To quote the immortal words of heavyweight boxing champion Muhammad Ali: They are cruisin’ for a bruisin’. The complaint against Mr. Hewitt is groundless and should be dismissed.
A few closing notes:
An objective observer reading this case might conclude that I have been most unkind to our City Attorney, but I certainly don’t mean to do that. For one thing, I don’t have all the facts, and I don’t know what has been going on behind closed doors at City Hall.
The dynamic is that ultimately, City Attorney Susan Morrell is merely a salaried employee of the City, even though she heads an entire department, and she reports to the City Manager. The City Manager is her boss, to whom she is beholden for her job, and who has the power of hiring and firing her or recommending nonrenewal of her contract, as the case may be.
I hasten to add that the same is not true of Mr. Hewitt. As a member of the Planning Board, he is a fully independent agent who is entitled to make his own judgments and form his own opinions. The City Manager is not his boss, and he does not take orders from her.
Within the limits of the canons of ethics, Ms. Morrell has to do what the City Manager tells her to, just as I’m obligated to do my best to try to carry out the objectives of my private clients in my law practice, even if I don’t agree with those objectives or with the arguments that I have to make in support of them when acting as my clients’ advocate. Lord knows that there have been plenty of occasions when I was obligated to make arguments on their behalf that I didn’t really believe in.
I’m not in a position to know whether or not our City Attorney is in that same position in this instance. I don’t know to what extent the initiative to remove Mr. Hewitt from the Planning Board originated with Ms. Morrell herself or the extent to which Ms. Morrell is merely doing her job and trying to put on the best case for the City Manager, as she is legally and ethically obligated to do.
Certainly, it is no secret that the City Manager regards Mr. Hewitt as a thorn in her side and that she has wanted to remove him from the Planning Board for a long time. To what extent the City Attorney personally believes in the arguments that she has been making on the City Manager’s behalf, I can’t say.
Either way, her legal reasoning and her arguments contain many substantive errors and logical flaws, but if she is merely trying to do her job as an advocate and present the City Manager’s case then perhaps, she should be forgiven for them. So, Susan, I apologize if I have given offense. In this case, I’m afraid we must simply have to agree to disagree. It’s nothing personal.
Finally, my thanks to City Councilors Andrew Bagley and Josh Denton for voting “No” on the decision to proceed with the complaint at the January 16, 2024, City Council meeting. I’m glad to see that at least two of our city councilors have a modicum of common sense and judgment.
Duncan J. MacCallum
Portsmouth
