Prior to and including Jane Murray’s brief tenure as Mayor, it was a common practice for Portsmouth’s City Council to introduce legislation not on the agenda at the very beginning of a regular session of Council. And quite often such legislation was passed without three readings; as required by Charter. Such was a neat “hat trick” in that the media and public were not made aware of such legislation prior to the meeting. And any potential opposition or public input was made moot by the quick manner in which the legislation was introduced and approved.
This ended in my early years on council when Michael Jones was City Solicitor. I introduced and council approved this provision within the “Rules for the Government of Council”:
5. All legislation, with exception, shall be introduced at the City Manager’s Conference meeting for discussion by Council and, with the majority approval of Council, placed on the next legislation session’s agenda. Anyone requesting the three reading rule be suspended, as permitted in Section 10 of the City Charter, shall do so when requesting the preparation of the legislation. The reason for waiver shall be noted in the ordinance’s preamble. Emergency legislation, as defined in Section 12 of the charter, shall be introduced at the City Manager’s Conference meeting, when possible. If not possible, as an exception, (it) may be submitted, in accordance with Section 10 of the Charter, as an addition to the legislative agenda.
This provision was reinforced by a memo from then City Solicitor Michael Jones indicating that Council should avoid introducing legislation at a Council meeting without it previously going through a Mayor’s (now City Manager’s) Conference Agenda meeting.
As for the Charter required three reading rule, Council has for the past six or so years been reticent in utilizing this provision of Charter; with Kevin E. Johnson, Gene Meadows and myself often voting against such when introduced. A waiver of three readings is allowed under Section 12 of the Charter, which reads, in part: “…An emergency measure is an ordinance or resolution to provide for the immediate preservation of the public peace, property, health or safety, in which the emergency claimed is set forth and defined in a preamble thereto… No situation shall be declared an emergency by the Council except as defined in this section, and it is the intention of this Charter that such definition shall be strictly construed by the courts.”
At the most recent regular meeting of Council, on February 12, Council managed to bypass both these legislative and public safeguards by introducing two items of legislation not on the agenda; one to rescind the December 18, 2017, ordinance firing City Manager Derek Allen and the second to authorize and direct an inquiry by Council into the conduct of the City Manager.
According to the Daily Times, “Placing this item on the agenda tonight without notice to the public that is here and waiving the three readings and passing this ordinance without really and real input from the citizenry, my question would be exactly what is the emergency as set forth in section 10 of the charter?,” Haas questioned council. “Under what part of section 10 are you indicating is an emergency?” Aeh shot back that council now has its own legal representation, and that members of the council were following his direction. “The people have been wanting to know what these accusations are and the answers to them, and both sides of the story. The sooner we can do it, the better. We’re just trying to let the public know,” Aeh said.
One might note that Mrs. Aeh did not answer Mr. Haas’ question; that being: Exactly what is the emergency as set forth in Section 10 of the Charter? Remember the emergency rule – “immediate preservation of the public peace, property, health or safety…” Do either of these last-minute introduced ordinances meet this standard?
But, according to Mrs. Aeh, Council was simply following the directions provided them by Council’s attorney. (Actually attorneys; plural. At the special meeting of Council held February 5, Council invited attorneys Mark McCown and Brian Cremeans to join Council in Executive Session. Both attorneys belong to McCown & Fisher in Ironton.) It was at this meeting that the Charter-busting strategy and the two ordinances were agreed upon.
So… why all the rush? The real and effective point of these ordinances was to 1) invalidate and stop the pending February 14 hearing before Judge Howard H. Harcha, III at which the court was to have heard testimony regarding Council violations of state open meeting laws and the city’s Charter and 2) re-set the time-frame and basis for investigating and firing Derek Allen. In order to do so, Council needed to jump through two hoops: 1) avoiding the City Manager’s Conference agenda meeting where legislation is supposed to be heard prior to being placed on the agenda for the purpose of hashing out any disagreements and informing the public and 2) ensuring both ordinances were deemed by Council (though not necessarily by the terms of the Charter) as emergencies thus avoiding three readings and any more public input.
And then, interestingly enough, Mayor Jim Kalb calls for a Special Session to be called for February 14. And why not? They got the court off their backs and most of them had scheduled this date to meet at the courthouse anyway; so… have a special meeting. And then get together at the Portsmouth Brewery afterwards (that is, only Councilmembers Aeh, Kalb, Lowe and Meadows).
As for the future, I hear Council continues to discuss a postmortem strategy for how to replace him when we are without Derek Allen. These discussions have been going on since prior to his “firing” of December 18, 2017. Interestingly, the discussion concerns whether or not to hire a professional “head-hunter” as was done before. These discussions have devolved down to one contention. That being, that Council is professional enough to conduct their own search for a City Manager and that professional help is not needed.
Just as professional help wasn’t needed prior to the December 18, 2017 firing of the City Manager.
Kevin W. Johnson, former councilman