Continuance of 2.12.2024 City Council Special Meeting

good evening and welcome back to the special city  council meeting we began on Monday Fe February 12th it is now Tuesday February 13th we will leave  or start off where we left off uh with attorney igon um the the floor is yours thank you very much  I'd like to uh call first uh Rick Beckstead to the stand and uh Mr Beck said you are still under oath yes Mr beab will you please state  your name and spell your last name for the record yes uh Rick Beckstead it's b c SED are you familiar with this C

ouncil chamber  room Mr Beckstead served four years here of my life in these Chambers and what was your in  what capacity did you serve in these Chambers my first term I actually had the ninth seat  where councelor Lombardi is right now for two years and then I served where mayor mccaran  sits as mayor for two years and so you were the mayor for two years yes okay when did your  term end well technically the the term ends is when the new mayor actually takes its role  during the inauguration so

I think it's a little bit past the January 1st uh if I remember  correctly of what year and that would be of 22 U was when mayor mcran took took the seat okay so  the election for that particular uh inauguration occurred in November of 2021 correct okay now  uh between the election and the time when you stepped down and mayor mckern uh stepped in  um I understand you appointed several members to various different planning boards including  Mr hwit to the planning board right yes I did okay can y

ou explain why you chose Mr hwit to  be on the planning board Mr hu is one of those exemplary residents um that basically shows  up at meetings partakes does research uh very knowledgeable um in life and in his career to  be able to have an engineer um be able to be on with the planning board would be extremely  valuable to the city of portsman was there any issue uh from your perspective effective in  the fact that he worked for the Department of Transportation my opinion working for the New  H

ampshire do I did not see that there would be any um reserves on him taking that position we had  actually already had a New Hampshire Dees member that was serving uh just actually expired uh his  term uh in December of last year so I didn't see any conflict of any kind that would happen with  New Hampshire do did that particular member who uh worked for Dees uh add value to the process  through his experience education and knowledge very much so I mean I think that they went and  he educated th

e board itself and sometimes with staff uh he knew things and had knowledge that no  one else would and I think the city the planning board I believe even the planing Department  in the city of Portsmouth greatly appreciated having him his Services basically for free was a  volunteer situation okay um and at the time of the appointments that you made uh in for for lack of  a better word the lame duck period of your office um did you get any resistance from any quarter  about appointing board mem

bers uh as your time in office was coming to a close I literally right  up until I had made the last of appointments with the vote of the council I had gotten a lot of  resistance the the one that was most troubling was so the way that it works is the mayor meets  with uh staff usually with the city manager with Kelly Barnaby and anyone else as far as to sit the  agenda so on November 10th I sat down with staff up in the conference room on the fourth floor and  we basically put the agenda togeth

er for the 15th and at that meeting I was actually bringing  forward for consideration not just Jim hu but several other uh members to be appointed to boards  okay and what was the reaction of staff at that time to those appointments so at the end of that  meeting Karen Canard the city manager actually went and said that Suzanne Woodland would like to  have a word with me after we were done I have no problem with that I meet with staff all the time  over who is Suzanne Woodland Suzanne Woodland

at the time was the deputy attorney and I think at  that time she might have been kind of an active role of the Deputy city manager okay and what was  it she had to tell you at that point so it wasn't so much Suzanne speaking to me the terms that were  used were we so she said we are you know greatly um appreciate everything that you've done for the  city we know how much you love the city of porsi and we know that you're going to be back but as  in consideration no other member brought forward

as far as with my appointments that I would like  to be considered the name Jim hwit came up and what ended up happening was she went through a  dialogue of concerns that we meaning probably the city itself would have concerns with one of  them being conflict of interests because of New Hampshire dot he would have to recuse himself  multiple times it just wasn't a good fit and we believe that it probably wouldn't be the best  appointment for you because when it comes to these appointments it ref

lects on the mayor's position  I see so you had active resistance from City Hall appointing Jim huitt to begin with before the as  the agenda had just been concluded and was moving forward yes on that day did any of the uh current  members of the city council a vote against Jim hwit for that particular office for that office it  would be Council Taber that actually spoke against it uh there were two others um that actually spoke  and voted against it as well that are not here so Council lisenby

was one of them and then the other  one was uh was assistant mayor Spain um based on that testimony I think we need to ask Council  Taber to recuse himself from this matter because he opposed Jim hwit from the very start and  voted against him um I'll defer to attorney llan I guess the test is whether um there  is a um any to indicate that because he the council voted against um Mr ht's  nomination any reason to believe that he um is not cannot be uh disinterested  in the vote on this particular

matter I don't see it I think he needs to make  that determination under the law Mr la but I we are objecting on that I would like to  add to that as well though because what ended up happening on that night it is on video  I actually very familiar because I watched the video today they actually we separated  what the appointments were going to be that was controversial what ended up happening was  was the land use appointments were voted on separately than the rest of the appointments  that ni

ght it was actually something I think mayor mcran uh you had kind of uh alluded to  about separating them and between that um I know that Council tab Council asenby and assistant  mayor voted against the appointment so it was a discussion that actually took place to separate  them if I could just be heard for a minute on on the issue generally speaking actually it is a a  decision for counselor Taber to make um but the legal guidance is whether he's conflicted in  this matter and whether the sim

ple fact that he was not in favor of the initial appointment  has anything to do with the issues before the council tonight um I don't see that the the two  bear any resemblance or or are comparable but that is again up to councelor tab tabber to  um make his own decision if he has some you know feelings particularly about Mr hwit that  have been there since he voted against him or if he can set aside any prior feelings and and  actually um reach a fair and impartial decision in this case and I

concur that that's the test uh  we're placing the objection in the record because the New Hampshire Supreme Court has said that if  we have such an objection we need to make it at the earliest possible time the decision under  the law about recusal for any board member of any kind is that it's up to the board member at  the end of the day so that is my request um your honored I had I hadn't remembered that vote  but the mayor former mayor is is correct um I don't agree with uh Jim huitt on on  t

hings but I think our job here is to weigh the evidence make a finding of fact on  the specific information uh that is been put before us and so I think the question question  would be can I be an impartial juror um and U I think that I can objectively and impartially  weigh the facts that we're hearing tonight thank you Mr Beckstead um why do you think Mr  hitt's appointment was so controversial I I think because I speak my own opinion I I  was very outspoken before I was elected uh my first te

rm on the council I served four years as  a private resident that attended and most people will agree with me almost at every land use War  beating for four years I have a very understanding life uh children go to bed at night which is  when most of the meetings happen so um I was an advocate um I helped neighborhoods when they  had concerns about overdevelopment knocking down houses concerns Jim huitt is that very same  thing he stands up for people it's one of the reasons why I got involved an

d I thought it was  just a great thing for Mr hwit to be able to go and step up and and partake in a role um that he  would F be fit for and so uh but why would that be controversial with this city of Portsmouth  probably because you wouldn't play by the rules um for the better part of my two years as mayor  I lived what Mr hu is living right now push back concerns were raised why this why that it just  I guess we didn't go with the flow of things we interrupted things I'll tell you what it  wou

ld have been a lot more uh effective for the residents of Portsmith that we weren't dealing  with covid um but but you had to tiptoe on what you were willing to go and uh speak up against uh  speak for um there was a lot of reluctancy and I got a feeling that that was probably what people  were expecting was they were going to have that type of push back uh from Mr hwit and that's why  they were so uh objective to his appointment and uh are you familiar uh of with the things of which  Mr huitt h

as been accused in this matter right to know what what just generally having looked at the  charge sheet what do you make of it all looking at the evidence malfeasance looking at the evidence  of right to know I I'm just having a hard time having it fit the you know a a crime that's been  committed um I know what malfeasance is if you misinform somebody um and they go and come to a  conclusion or a vote um that's malfeasance like you had said last night as far as stealing taking  profiting that'

s a Mal feas right to know uh we got hundreds and hundreds of emails from staff  as a council as a whole and we had a few times there was one counselor in particular um that a  few times would go and reply all and you would start a dialogue in a conversation what took  place and Bob Sullivan would go and say that it would take if it was that fourth reply  you now have five in a minimum and that's a conflict and that's part of the right to know  right but did any of those counselors get removed f

or that conduct no um I'm sure if we weren't  counselors and we were board members you might be uh be here as well uh as Mr huitt is so in your  opinion Mr Beckstead what should happen in this Cas I wish it never happened I apologize to Mr  hwit both Jim and his wife for having to live through something that I and many other people  have gone and lived through I it's it's unfair um I think Mr YT should be able to serve out  his term um there was no law that was broken I mean everything that I sa

w last night  Witnesses and testimony and it's a rule but it's not in black and white it's a rule  but it's not in print so it's to be basically uh kind of complied with when you don't know  the rules that was why a tiptoe every time Jim made a a step they went he got a push  back and was told oh you can't do this oh you can't do that so in my mind I would go and  say you can't do this Jim or you can't do that and let him finish out his term um he he is  Great Value to the city of Portsmouth and

uh we we desperately need him thank you very  much Mr Beck said attorney moral may have questions you want the mic sure thank you attorney  Egon are you passing the mic over yeah okay we should make a note to get two microphones in  the future I think that's on his Christmas list now in the budget all right let's hope we don't  need it again it's fair enough so Mr bad um from what I understand attorney woodland who was the  deputy City Attorney at the time and um typically participated in the w

hat agenda review where you  brought up your appointments right is that what you're saying so she actually she did not partake  in in the meeting itself she came into the room after we had finished up setting the agenda all  right and so you had a conversation with attorney Woodland about the appointments that you were um  proposing not appointments the one appointment concern of Mr huet so there are other appointments  there was a number of other appointments there was um quite a few in fact co

rrect and there was one  objection correct okay and the one objection um you said had more to do with Mr ht's um profession  with the Department of Transportation that would be a conflict of interest from time to time he  would have to recuse himself of multiple projects when it came to dealing with New Hampshire dot  right okay and um now you also said that at times there were problems with um email corresponden  going between a quum of the city council no I just went and gave that as an exampl

e as far as  an email going out which is what Mr ht's emails goes out to the planning board and to the chair  and to the planning department I believe was listed on there an email went one way no emails of  any kind were going in the background I think you said when you were on the city council that there  were some issues with that with Bob Sullivan and he had some discussion with the council members  CU somebody would go and reply all and he would just give a fair warning before we would get t

o  that type of a violation right but he cautioned you all correct that this is could be a problem  if somebody hits reply all and you end up in a quorum having a discussion correct and that  would be a violation of the right to no law correct but the objections that are being made  with Mr hitt's emails is the content yeah but my question is about what you said earlier and  um and you were asked if um any one of the city councilors was if there was a removal hearing  and you said no but if we w

ere planning board members that might have been different is that  what you said no that's not what I said okay so you understand that there's a difference in a role  between a city counselor who's a legislator um and a planning board member who's sitting in front  of applicants in this quasi judicial role you okay and that there are are different limitations  on planning boards uh members conduct than there are on a city counselor's conduct because of that  from from what I saw of Mr ht's email

s no I'm not asking about the emails I'm just asking if you  understand that there's a difference between the role as a legislator and the role as a planning  board member sitting on applications no I know the difference with that I've also served on I've  also served on the recreation board and we got the same type of emails which would be subject to  the exact same thing Mr hu's being accused of but you weren't sitting as a lanus board member  no I was not um nothing further nothing further th

ank you Mr be thank you any questions to  the council oh sorry go ahead uh councelor bagy thank you honor and thank you for attending  tonight Mr Beckstead um you you had one quote um the city I think was nervous maybe because  he wouldn't play by the rules could you just expound on that I think maybe you what you meant  by that played by the rules you said uh you you were concerned because or you said you thought the  city was concerned because he wouldn't play by the rules Mr HT has his own op

inions when it  comes to certain things and he would not I guess play by the rules of what is expected  and has been expected for many years at least a better part of 12 Years on what the role of a  any land use board member is um there would be some reluctances there would be questions that  were asked that weren't asked um by previous land use board members um and that's what I  meant by playing by the rules okay thank you I didn't want to put the words in your mouth but  you're using as like

a figure of speech not yep he wouldn't play by the rules in a technical  sense yep okay thank you any further questions thank you thank you Mr Beck said excuse thank  you Mr Bagley that was a good clarification Jim Mr hu would you please state your name and spell your last name for the record  for me it's uh James ASA huitt hwi tell me a little bit first of all where do you  live in Portsmouth I live at uh 726 Middle Road and uh what do you do for work I'm an engineer  for the New Hampshire Depa

rtment of Transportation and are you professionally educated as such yes I  have uh undergraduate degree in civil engineering and a graduate degree in civil engineering and  I'm a licensed engineer how long have you been a practicing uh professional engineer in the city  in the state of New Hampshire um 38 years okay and uh at pres whom do you work for the New Hampshire  Department transportation how long have you been with them 10 years prior to that uh what did you  do I worked in private Cons

ulting engineering and I also worked for the New Hampshire uh Department  of Environmental Services okay so you have environmental engineering experience yes and then  what did you do as a private Consulting engineer what was your focus well I my first job out of  college was uh constru construction engineering for large power plant companies different power  plants around uh the Northeast and uh which brought me to New Hampshire and then I worked  for a small site survey engineering firm doing

development projects and then uh those and then  after Department environment Services I worked for uh water and waste or company and were you on the  uh water provision side or the waste water side in the U at right Paris I walked I worked on uh clean  water drinking water okay and in all of these positions um did you uh regularly interact with  uh City and town ordinances regulations zoning ordinances subdivision regulations things of that  nature set very much so that's kind of the job okay s

o you would on a regular basis throughout  your career apply different levels of Regulation to various projects that you were seeking approval  for correct okay and you still do that today with the dot correct I see a lot of site plans  development projects Etc do you feel like that experience was Germain to your work on the  planning board very much so because I see um the same set of plans that come to the planning board  often come to the Department of Transportation for access to the state's

highway system uh before you  became a board member in the city of Portsmith had you ever occupied another volunteer position or  office in Portsmouth not in Portsmouth how about other places you lived yes when I uh when we  lived in Durham um I was appointed to the lampy river lampy river advisory committee okay and uh  you said you've lived in Portsmouth for 10 years um how long were you in Durham before that 20  and then before that did you live in Portsmith correct for how long uh from 1986

to 1993 okay uh  in your time since you and your wife moved back to Portsmouth would you say that you've taken  an interest in uh Community Affairs let's call it it wasn't our plan to honestly when uh we left  Durham we we kind of talked about trying to stay Anonymous but uh it was hard for me to do that so  um I got drawn into Portsmith um activities first with Mark Brighton and the Portsmouth taxpayers  Association and that led me to other folks regarding the pure silent wastewater treatment 

plant okay and what was your concern or your group's concern with the wastewater treatment plan  uh it's a very complicated project very expensive $100 million and um the Pierce island property  is very small there was a very small envelope to build a plant there and uh the cities eventually  chose uh a treatment process called BF which is biological air air rated fil filtration and uh  kind of controversial not really used that much in the Northeast and uh there were some of my  um like-minded

friends thought that there were other options including going to peas trying  to expand the peas Wastewater Plant and also potentially going outside the fence line a  different process and so you and your group opposed this particular iteration of the plant  did you succeed in your opposition no we did not okay so um are you generally speaking opposed to  development in Portsmouth not at all um in your time on the planning board um what percentage  of time did you approve applications that came

before the board well as part of this process  I'm going through right now I I thought it' be a good idea to actually determine how many what my  voting record was so I went through every meeting minutes for the last two years and I counted up  my votes and uh it's approximate of course but I counted 310 yeses and 17 NOS which computes to  a 95% yes so I'm showing you exhibit K right in front of you for the record is that the summary  of your voting record that you compile based on the meeting

minutes that are available publicly  yes it is it's on the basis of that summary that you did your calculation correct so going back  uh to the time before you became a board member and you were just a private citizen were you  active in the 2021 City Council election yes I was in what way um there was a group called The  portsman Citizen Alliance which started two years earlier with Stephen Erikson that was uh heavily  involved in getting Rick Beckstead Paige Trace Esther Kennedy Petra Huda and

Peter Wayan elected  and um two years later Stephen Ericson had moved away or was no longer active so it kind of fell  on my shoulders to take up whatever what was left of that group and to help those candidates and  so um it was very a very small operation there was no funding I think all U Horseman citizens  Alliance did was send out a a survey to all the candidates but you were publicly uh on the record  in favor of those candidates correct very much and what candidates were you opposing in

that election  all nine that are sitting here today okay so the very candidates you opposed in that election are  the ones judging you now is that correct that's correct after the election uh when did you learned  that Mr Beckstead had uh suggested that you become a planning board member I believe uh sometime  after the election late November he called me um I did not seek the planing board position I uh I  know how much work it is but when the mayor called I figured had had to step up and uh wh

at was your  reaction when you were asked well of course I was honored when the mayor of my city called me and  thought I'd be a good member okay and when were you sworn in as a member there's not really a  swarming in ceremony for plany more you just kind of show up so my first meeting was January  27th uh 2022 okay so um you've heard reference uh in the earlier testimony with Mr Sullivan um  to the city's exhibit one which I'm going to put in front of you here uh and I think we've covered  thi

s ground pretty effectively for the most part but I do want to make sure we're absolutely clear  on the timeline here so Saturday December 11th you send an email to a group of people and you  copy Mr britz and the planning department on it and at that point had you been nominated  for uh the planning board yes had you been approved by the city council yet yes okay  so you were a future planning board member right correct yes and were you actually  sitting on any issue at this time no okay and uh

this uh vote in fact occurred on  what date the vote to put me on the board no no I'm sorry the vote in the Reigns Avenue  project that's the subject of exhibit one that was December 16th of 21 okay and um remind me  again the date that the city council approved you December 6th of 21 okay and so but you didn't  sit on the planning board meeting on December 16th 2021 correct correct that's correct all  right so it was approved that project was fully approved before you ever took up your positio

n  as a planning board member right correct so when you sent that email you were acting as a private  citizen is that fair to say that's very fair is okay now uh turning to uh exhibit two which is the second alleged instance  of malens exhibit two we talked a little bit about yesterday with attorney Sullivan and  Mr chelman and in this sequence of emails we learned that you emailed the planning department  director and asked her to include oh excuse me you emailed Mr britz in the planning depart

ment  and asked him to include New Hampshire Dees site evaluations for four pieces of land correct  actually Four sites four contaminate allegedly contaminated sites okay how did you know about  those sites I know about them two ways being a longtime Portsmouth resident I knew that area  of town had issues and second ly when I worked for the Department of armo Services I worked in  the waste management division uh that worked on cleaning up these sites so I I was very aware of  all the hometown

sites in Portsmouth okay and what what were the issues that you understood to be  affecting this piece of land these pieces of land well the one that I the two that well there's  there was cyan cleaners which is a dry cleaner which notoriously have problems I think there  was an asbest site there was moo auto body back there and I forgot the third maybe a petroleum  site okay me the fourth why did you think that that was important information for the board to  have before it as it considered the

application because the information had been provided  to to me when I was a plane board member or didn't have any any record of of the status of  those properties have they been evaluated have they been cleaned up will those will that site  be safe for people to live and work on and you felt that was an important thing for the planning  board to take into consideration yes okay did you in this uh email sequence indicate that you were  not going to vote for the project no uh in fact what was yo

ur state of mind about how to vote  on this project at the re-hearing I had had no preconceived notions I okay so is it fair to say  that this was simply an information request right that I thought was important for me and the other  playing board members to be aware of okay and um if you look at the fifth page in there's an email  from you dated Friday February 18th 2022 to Mr Sullivan and Mr britz copying Mr chelman you see  it it begins understood yes I do you said recently it takes a few wha

cks to get new information  to register in my postco 19 adult brain is it possible to obtain answers to my questions  for Community knowledge that complies with jury standard requirements and as we discussed with Mr  Sullivan yesterday um his resp response to that was I'm sorry hold on I'm just trying to find it he said on Tuesday February 22nd  in response to your question you've asked a complex question and I do not  immediately know the answer I.E how to deal with Community knowledge that's o

ut  there that you want in the record right mhm correct did you ever uh get a response  from him on that particular question no I did not and when you sent an email out to  Mr chelman and other board members did anyone ever respond to that email reply to  that email no okay so you put an email out into the ether there was no further discussion  about that email electronically it's correct correct um and this was all in anticipation of  a February 17th 2022 planning board meeting at which the Rei

gns Avenue uh issue would be  reheard um did that vote occur no it did not did the hearing occur no what happened as I  recall uh the day of the meeting in the morning at some point um the city was notified a  judge had ruled that the planning board had no jurisdiction to hear this and it was  removed from the agenda do you have any other knowledge about that legal process no okay  so as far as you're concerned the the case just went away is that right correct okay so  you never had a chance cha

nce to vote on the issue no um and not taking a vote nobody asked  you to recuse yourself no the board never voted to recuse you no okay um no applicant ever  appealed a decision that you voted on in the in relation to that case correct no no one  did that okay turning now to exhibit three three exhibit 3 pertains to an email that you sent to Beverly zent who was then the planning director  for the city of Portsmouth and obviously we heard testimony about it yester yesterday I'd like you  to fli

p if you could to page two of two in the bottom right which would be the third sheet of  paper in the document right yep um as both Mr chelman and Mr Sullivan read what you said to  M uh zent was could you please add an addendum to the March 17 2022 planning board packet with  the following West End yards information and uh so this request was to the planning director  correct yes and um what was it that you were seeking to have added to the packet well since  uh the planning Ward was going to b

e reviewing a request for additional parking at West  n yards I thought it was important for the planning board to have background information  on when it was originally approved in 2019 so I sent the action sheet from March 2119 and  um of um a YouTube video of attack review when they discussed why they needed more  parking so and then the other YouTube video uh that must have in the actual March meeting  perhaps I okay so they were both recorded archives of public meetings held by the city of 

Portsmouth is that right that's correct and the two documents the PDF documents that you asked to  send were public documents that were part of the file for this piece of land and this developer  who were now on your agenda right correct okay why was it that you thought that the board  at its meeting would benefit from having this information in the information packet I thought  it provided good background on how um we got to this position um what planning standard what  parking standards were

used and why they fell so woefully short of the actual demand because  what in incidentally what was this applicant West End yards what were they asking for that  night 120 or 95 uh more parking spaces okay so um when you talk about adding it to the packet  what is the packet uh the planing board packet is similar to the city council packet it's um  a collection of all the information that was submitted to the planing Department as part of  the applications and it's what's available for the boar

d to consider as they prepare for the  hearing correct is it public information yes okay so you wanted this public information to be  included in the public information that would be presented to the planning board for consideration  correct cor yes okay so your goal wasn't to have this surreptitiously considered by the board  right no not at all you wanted to make sure it was something that was available and discussed  or at least considered at the meeting right yes okay uh at the point that yo

u sent that email  suggesting that it was useful information had you decided how you were going to vote on  the project no um is there any language in this email which suggests you decided  how to vote on the project no it's just an information request um and when you  voted on the project uh actually when you attended the meeting was there  discussion about the parking issue yes and what was the decision ultimately uh  with respect to um that particular application uh planning board I believe v

oted unanimously to  approve it okay were there any conditions placed on that vote Yes I uh I requested a condition  be placed on the vote to have a parking demand study performed on this site because I felt  it was a perfect opportunity to have real Portsmith related parking demand information on  a relatively large project that have different size uh living units so I felt this is our time  to ask for it as a condition of approval that they do a parking demand study and did uh sir  did Mr telm

an agree with you on that yes yeah he signed on to that right correct in fact the  the the board voted to approve that condition as a condition of approval right right and did the  applicant submit that parking study yes uh it was submitted to the planning department in May and  a planning board got it in September or October okay and um in that case did the applicant ask  you to recuse yourself no did any board member ask you to recuse yourself on the basis of  this email no did uh did the boar

d vote to have you recused no was there any appeal of that  decision by the applicant no was the decision ever reversed by a court due to your failure  to follow the jury standard if there was any no um uh and incidentally uh going back to Exhibit  2 which we discussed a few minutes ago where you you had asked for Environmental Studies there were  two components to that that the city identified as being problematic the first was the initial  request to Mr britz do you recall that you subsequentl

y sent an email to the Conservation  Commission asking them to consider those issues going forward correct I did um I had requested  I it was a kind of a short time frame between when the Playmore gets the packet on a Friday we  have to meet on a Thursday so I believe over the weekend I sent the email to Mr britz and I asked  for this information I Believe by Wednesday noon or something to that effect and uh when it didn't  arrive he never responded I thought to myself well this is not going to

be available for the vote so  I I I sent it to the Conservation Commission as a heads up like you know if we're not going to deal  with this maybe you should be aware of it in the future um and if you flip do you still  have exhibit two there in front of you you flip to the third to last page which is Wednesday February 16th 2022 at  4:47 p.m. you emailed the Conservation Commission right on the third from the end of the yes if  you go to the very last page in the document oh dear Conservation C

ommission on Fe February  16th 2022 yes I see see that one mhm you say FYI on the below and attached right correct  so for your information are you telling the Conservation Commission how to vote on anything  no you say in fact in the future right if city city city hall allows projects to be approved  on contaminated property with no idea about the potential adverse effects on human health in the  environment I hope the Conservation Commission will assume that role so Portsmouth fulfills its  ob

ligation as an Eco municipality city hall has been equally dismissive on the need for any  any H DS permits prior to or as condition of approval correct correct are you talking about  any specific project there no you're making a suggestion aren't you yes are they welcome  to take that suggestion up or not certainly yes okay I'm going to show you now another  exhibit which is our exhibit t e as in Pony sorry was that p as in  Pony potato potato okay not P patata so uh looking at exhibit P here i

t looks  like if you flip to the back page um maybe the second page at the bottom you write an email on  March 20th 2022 to Beverly zent and you copy Mr Sullivan Mr chelman city manager and Nicholas  cracknell do I see that yes I do okay um and you uh send an email to Ms uh zent attaching a  couple of parking studies that's that's correct what was the purpose of that email well  um the plane board meeting about West 10 yards was on the 16th th Thursday and on Sunday I  thought uh perhaps the pla

ne Department could uh be receptive to receiving some information about  parking in general just you know why how parking is is determined in other parts of Portsmouth and  other parts of the country so I sent U Beverly uh an email that had information about parking at uh  Southgate Plaza the vidiian 95 unit project where they used I believe two parking spaces per unit  and then I did a quick search on the internet for some other generic site that I found in Albany  New York that also uh was sim

ilar to the two two spaces per unit so I thought that they could  uh find that useful okay and this wasn't in relation to any particular uh project that was  in front of the board right no this is just a general FYI okay is it fair to say that as a  matter of policy uh you believe that the the board was approving or historically had approved  projects that lacked sufficient parking that's correct and uh Weston yards was the most glaring  example of that okay because they were approved for a cert

ain amount of parking and then a couple  years later they were back again asking for more right that's right so you identified that as a  defect in essence in portsmouth's policy around these issues and that's why you wanted to bring  this stuff to their attention that's right was any of this uh obviously it happened after the  vote on the West End Yards Project right which you approved right yes uh was this in any way  uh an effort to favor or oppose the West End Yards Project or any other proj

ect no it was  just an attempt to help uh improve our parking regulations showing you our exhibit Q as part of the discussion between Miss  zent and you about the planning board video and those two PDFs from the West End  yards approval back in 201 19 Mr Sullivan sent you a reprimand your third reprimand  in as many months and that was on March 16th 2022 if you turn to the second to last page  in this document exhibit Q yes is that the email that Mr Sullivan sent you in relation to your  email t

o miss zent that's correct okay and um so after that email you sent him an email responding  to that in September I guess September 21st 2021 22 do you see that I do what was it that you were  asking him about in this email well at some point between March and September I became aware  that uh the Zoning Board in pouth does is not given recommendations on how to vote for a project  unlike the planning board so I found that curious that and when I started to put all these things  together that Po

rtsmouth plane department is laser focused on eliminating bias on the planning  department but they're not so I mean on the on the zba but they are permitted to introduce  bias I felt to the planning board so I wanted Mr suvin to explain that that uh discrepancy  and when you asked that question um what was his response do you remember uh yes he responds  that uh my question is more invol my answer is more involved and your my question I'm sorry is  more involved and my answer would be more nuan

ced than could be handled by email and he suggested a  face-to-face discussion and meetings with m zent and others correct yes did any of those meetings  ever happen no did you ever get an answer to your question no okay and incidentally uh yesterday  when uh Mr Sullivan and Mr chelman were talking about that exhibit number two the excuse me  exhibit number three where you had sent those PDFs and the video clips of the prior uh meeting  um that you should have sent it to the planning department

first right but that's what you did  did right yes and in fact um what did M zent tell you when you sent it to her she said this is all  public information so we can just send it along okay so you followed the rules right I interpreted  we to mean us so since I initiated that request I sent it along you did in fact exactly what  attorney Sullivan said you should have done right correct um now uh going back to this question  of bias in the uh ver between the planning department and the zoning uh

excuse me the  planning board and the zoning board um can you explain for the city council's appreciation  what the planning department memorandum is and what role it plays in the planning  Department's planning board's meetings part of the planning uh board's monthly packet  includes the agenda the minutes and also a staff memorandum which outlines uh the technical and  the legal aspects are are just the issues whether it's a site plan subdivision conditional use of  permit and uh it also inclu

des on every project their recommended motion it usually includes two  motions motion to approve as is or a motion to approve with whatever amendments we may have  so the planning department tells you um how to vote and then how you should vote on it right  well it it's uh it's their staff recommendations so they're kind of saying we've looked at it there  for you should improve it right so they're telling you what the planning department thinks you should  do with this correct correct mhm do yo

u feel as a board member that that puts pressure on the board  to comply with that instruction yeah very much so in what way well it's you know we're volunteer  planning board members and they're professional staffs and so if we're reviewing something and the  in a staff memo tell or instructs us or strongly encourage us to to approve it's it's hard to  go against that recommendation so you kind of feel that you have to go along and is that the  bias that you referred to when you raised this iss

ue with attorney Sullivan yes it is and you  still don't have an answer to that question right right okay turning now to exhibit 4 which  is the 710 Middle Road property you said uh a few minutes ago that you live at 726 Middle  Road correct yes 710 Middle Road where is that house in relation to your house it immediately  abots our property to the east how far is uh the neighbor's land from your house the property  line his property line to our house is maybe 6 or 8 ft in fact your driveway you

and he share  a driveway correct correct we I have an easement the driveways on my neighbor's property okay  so uh what did the uh neighbor propose in this case uh our neighbor proposed a very uh well he  proposed a detached auxiliary dwelling unit in the rear of this property and what was your  and your wife's position on this particular request we were not pleased at all we were never  given advance notice of this happening and uh we were surprised to see it on the agenda we had  a week to pre

pare so we were very much against it okay and did you oppose it publicly yes did  you sit in this room and speak against it yes we did and that was uh when that was in June  of 2021 were you a planning board member yet no okay so you were private citizen opposing an  abutters project that affected your interests correct correct okay um was that project  approved by the planning board yes it was were there any conditions on the approval  yes there were um I'm showing you exhibit s which was discu

ssed yesterday is that the city conditional use  permit that the planning board issued in relation to 710's request yes it is okay and  then you appealed that decision right we did actually litigated it into Superior Court  correct did you Prevail no so the project went ahead right well the approval stayed  the the approval was upheld okay and so uh at some point you reached out to Vincent Hayes  asking about compliance with those conditions right right uh soon after the Court ruled in my  Butte

r's favor I wanted to learn more about um these conditions and how someone could learn  their status okay and so you emailed Mr Hayes right and you copied Mr chelman Right yes you  weren't trying to be to hide the ball in any way right not at all okay and uh you asked him  about compliance with those conditions right correct so in your email of July 14 2022 which  is on P the third fourth piece of paper in this document are the issues that you raise in this  email directly tied to each of the co

nditions in that conditional use permit yes they are okay  so when uh attorney Sullivan or Mr chelman didn't understand what the heated first floor laundry  room question question was that you were raised that's right in exhibit s isn't it yes it is  okay so that was one of the conditions of the approval correct so you were trying to find  out whether the applicant had complied right yes exactly it was just Cur my as an abutter  I just wanted to know where these conditions stood did you have any

Communications with Mr  Hayes or anyone else in the planning department other than what's in this email packet no no  telephone calls no no in-person conversations no and then uh Viewpoint is that available to  any citizen in Portsmith who wants to find out about zoning approvals and planning approvals  and so forth yes to my knowledge okay did you understand uh how to create a an account for  that no Viewpoint is not very user friendly at least it wasn't at the time it I found it  very unwield

y But ultimately you did right yes I was able to get in there there eventually  after a few missteps I I ended up on the CIP page and started typing some information that I  realized uh after that I closed out of it next thing I know it shows up on the CIP I was like  how that happened so oh are you referring to the first document in exhibit for this citizen  request form right yes I see that was clearly just a again I just was so unfamiliar with  Viewpoint I ended up in the wrong place gotcha s

o um councilor Kelly uh had a question for  Mr chelman uh yesterday I think about uh the extension that you mentioned in this sequence of  emails uh and whether the applicant would need to extend approval of the project at some point right  did that question that request for an extension come before the planning board yes it did when  yeah I think in April of 23 okay what did you do for that vote I recused okay you recused because  you had a personal interest in the matter right correct I think

uh I think it's pretty clear based  on following a lawsuit I was biased against it right um so in this communication did you uh  tell Mr Hayes that you were a planning board member and you were ordering him to do this  or that no okay did you uh tell him that you had any authority to make changes to  the conditional use permit or demand different things No in fact you had none  of that Authority right no I don't okay so in this capacity you were acting as a  private citizen merely trying to ensu

re that the compliance with the conditions  was overseen by the city correct that's it um for the record exhibits b d FH and J Are all uh meeting  memoranda that are prepared by the planning planning department for  the planning board's consideration and as my client testified they contain uh  motions and recommended results for your [Music] consideration now I'm showing you uh exhibit  five from the city's packet which is the sequence of communications surrounding the  375 Banfield Road propert

y in October of 2023 what was located on that property  for 50 or more years I understood there it was called Country Motors at the most  recently and I guess throughout time uh it was a junkyard salvage yard uh Auto Parts and  included a car crusher and uh how did you know about the existence of that business on that  property um well I I knew Country Motors was around a long time from living here so long  and uh through the material and the planning board packet okay so from the material in  t

he planning board packet what did you come to understand about the environmental Legacy  of that business on that piece of land yeah I believe that was that packet set the  record record for the planning board at 2500 pages and a large majority of that was  uh site cont site characterizations of the contamination and uh what concerned you about  actually stepping back a second what was in front of the board that night uh it was two two requests  one was a site plan approval and one the second wa

s a subdivision request okay and what were your  concerns conerns in relation to the environmental contamination that was uh displayed openly by the  applicant itself my greatest concern had to do with the subdivision and how that would or would  not potentially affect um how that site would be cleaned up because it it was still had some issues  outstanding issu issues and I was I was concerned that by subdividing off the contaminated piece and  leaving the valuable piece that it gives incentive

for a potential owner to abandon that site and uh  leave it for the taxpayers to clean up okay and in fact uh wasn't there uh in existence at time a  lawsuit underway that concerned that very question who would be responsible for the cleanup of the  site correct there was how did you come to learn about the lawsuit I first read about it in the  newspaper in late uh 2022 at the end of the year and there were several articles uh describing the  lawsuit out there that was before this particular pr

oject ever came onto your radar screen as a  planning board member that's right okay and um did you bring it to the attention of meaning  the lawsuit to the attention of the planning board at the meeting no I mean I'm sorry it was  already known the planning department I mean it was it was discussed at the meeting okay so so  it was a subject of discussion right in public yes okay if you turn to page five of exhibit  I in front of you which is the meeting minutes I think they're the one at the t

op next to the  microphone there oh okay this is the uh meeting minutes for October 19th 2023 page 5 yes there's  a paragraph that begins Mr hwit asked correct you see that yes so this whole paragraph is it  fair to say deals with the lawsuit the impact of the lawsuit on the property the effect of  the lawsuit on the subdivision and so forth right yeah and would you say that your reaction  at the meeting was energetic it was I it was uh energetic to the point where right out pretty  much at the

very beginning I uh which typically a routine yes vote is the package complete I  voted no and why did you think the package was not complete I didn't feel the planning board  or myself had enough information about the status of the legal issues and who's going be  responsible for cleaning it up because in your mind did that go to the question of subdivision  which was before the board correct okay um and uh at what point in the meeting did you learn  from Mr chelman Andor the city's attorney th

at you weren't allowed to discuss that matter or consider  that as part of your determination that night I believe it was early on the issue came up that  uh attorney mccort was at the meeting and and explain that uh contamination liability legal  stuff was not planning board's concern that we were to vote strictly on what was presented  uh but wasn't the lawsuit itself part of the package that was presented wasn't yes information  about it in the package was yes didn't in fact the city's techni

cal advisory committee recommend  that the planning board obtain or impose as a condition of approval the resolution of the  cleanup responsibility yes it was okay so that was right that was front and center in what  you were asked to consider correct yes it was okay and your reaction was energized there to  say yes it was okay and you were frustrated to say y so uh you voted against that particular  project what was the vote on that it was 8 to one so you were uh as we say in Hover box  clonus

in deserto you were a voice crying in the wilderness on that one right fair to say  fair to say um did anybody at that meeting ask you to recuse from that vote no did the vote  did the board vote to have you recuse no was any appeal taken from that vote no did the  applicant or anyone move to rehear that issue no about 10 days after that meeting you sent an email out uh which is in exhibit  five to members of the board and Mr chelman it's on the second page yes M and it says Dear chair chelman a

nd  planning board members I just wanted to follow up with some information that I hope will help  explain my somewhat zealous response to this project on October 19th as you recall I felt the  application was incomplete as the planning board was not provided all the information it needed  to make an informed decision on behalf of the people of Portsmouth see below and attach that  was your opinion when you voted right yes it was and your vote was in the can already right  yes you were on the pu

blic record opposing this project because you felt it was an incomplete  application right correct so none of this is not known to the public right right and are  you asking the planning board when you send this email to uh start a discussion about it  no are you asking them to make any decisions concerning this information no as you say in here  I hope it will help explain my somewhat zealous response correct exactly and did anyone from the  planning board reply to this email no okay T so no de

cision was made and no discussion was had  concerning this email correct correct until at least you got a principal's office letter  from Mr telman Right uh yes that's right okay okay the last example of Malin that  the city is alleging is contained here in exhibit 6 and we've heard  about it again at length from Mr telman can you explain to me the background  of this sequence of emails sure going back to the July 2023 plan planning board meeting yes  uh I believe on July 20th the applicant came

before the planning board in a work session an  informal non-binding discussion of a project and uh at that time the plans were presented and  uh I had an opportunity to review them ahead of time and two things concerned me one was an  encroachment meaning that there was assets of the applicant's property on someone else's property  and uh the fact that I believe at the time they were proposing 72 apartments and only providing  64 parking spaces and did you uh provide that feedback to the appli

cant that night in July of  2023 yes I did in fact the applicant came right over to the table or I guess you were up here  but the applicant came up and you pointed out the encroachment right there right right I had a  marked up plan A paper copy and when I explained it he seemed a little unaware or just surprised  so he he walked right up so you could see it with his own eyes and uh actually those were the  the very description that Mr chelman had of that very same interaction correct correct y

es and uh  you and the board including Mr chelman all agreed that this encroachment was an issue right yes and  that the application couldn't be considered at all without resolving the encroachment right right so  not a question of bias it just was an application about building something on someone else's land  and that just isn't going to fly right it's not building it was already existing so it's kind  of the same thing okay but approve getting site plan approval for something that was on some

one  else's land isn't something that you can do as a board right correct okay and Mr chelman as we  heard last night agrees with that right right okay so you told this applicant hey we want want  you to fix this and please give us uh parking data right yes okay and then at some point in December  what did you learn yes in December I became aware that uh this project was going before the TAC  which is the technical advisory committee it's a a committee that reviews projects before  they come to

the planning board and I was stunned to see that nothing had been done with  the encroachment it was just as it was in in July um and so when you wrote to the  technical advisory committee on December 27th 2023 what were you trying to accomplish I was  just trying to make them aware of what happened in our work session and the fact that uh the the  encroachment is still there and and uh I think it needs to be resolved okay and then regarding  the parking and um I had concerns about the the numbe

r of apartments and what parking was going  to be provided and then what did you actually ask Pac to do with this information I suggested  I never demanded or asked I just suggested that the uh encroachment be resolved and that uh some  type of parking demand analysis be prepared so that they can have some comfort that uh the site  will have adequate parking and Mr shelman agreed that that was all fair game that was legitimate  information for the planning board to consider at the public meeting

right right and you had  already told the applicant about these things at the public meeting in July right right um and  how did you react last night when Mr chelman kept uh talking about you instruct P to do this  or that yeah that was that didn't come off well for me because I never instructed anyone  to do anything it was I had this knowledge and I just I suggested that this these activities  take place and nothing would have prevented you from asking for that data at the public hearing  rig

ht right right um and if the applicant knows in advance that that's what you're looking  for as a board doesn't it make it more likely that the application will be complete when it  finally gets to you correct yes that's that's kind of the goal to have a complete up have  everything resolved before it comes to the planning board and that was the goal of the pre  uh submission meeting that you had in July right correct and so isn't it fair to say that you  were trying to help the applicant best p

repare for the board's questions at the meeting  yes and is anything you asked for in here news to the applicant no CU they knew about  it when you asked them in July right that's right and are you demanding that  Tac undertake any kind of action or non-action as a result of your email no  did you even get a reply from this email no okay and uh incidentally is the July 20th  2023 discussion captured in the city's video posting of that meeting which is  available on the city's website yes it uh t

he encroachment issue is not reflecting  the minutes but it's definitely on the video okay I'd like to make that video part  of this record you have any objection no objection thank you um and obviously  Mr chelman testified to all of that last night if there's a convenient time for  a break uh I'm almost done with this exhibit and then we can move on um so uh  the facts that you asked Tac to consider in these emails did they come from the July 20th  2023 meeting yes so you obtain the informatio

n that you asked to consider as part of your  duties as a board member correct correct okay um has anyone asked you to recuse yourself  from this request by 581 Lafayette Road no um has the board voted to ask you to consider  recusing yourself from that matter no has a vote been taken on this issue by the planning  board no okay thank you um I do have a couple more things but uh if you want to take a break  we can do that move okay 5 minute 10 5 minute recess welcome back um attorney eglon I'm j

ust going  to make a quick comment um we've placed the uh signup sheet for um public comment at the  back of the room again um if you signed up last night you don't need to resign up you  sign up again tonight we're going to swearing everybody um at the before public comment uh  occurs uh again attorney egleson thank you Mr huitt um there are two exhibits in the file  uh exhibit o and exhibit n um looking first at o what are we looking at here uh this is  a compilation of the planning board meet

ing minutes for 2022 and why did you ass well let  me ask you this did you put these compilation together yes okay what was the purpose uh I  thought it'd be interesting to know what my uh attendance record was while I've been on the  planning board okay and what was your attendance in 2022 it uh uh I attended all meetings okay  you didn't miss any meetings in 202 correct that's correct okay and in 2023 I'm presenting  you with our exhibit n here how many meetings did you miss in 2023 I missed u

h I attended  all planning board meetings and I missed uh one work session so there are a total of 19  meetings in 2022 I missed one of those okay um now you heard some discussion from Mr chelman  yesterday about uh their dissatisfaction with the events surrounding your email to Tac and  how uh Mr chelman asked you to meet with him to talk about your status on the board can  you just give your version of these events yes um in early January I think believe it was January  4th if that's a Friday

I got a text from the chair and he requested that we meet concerning the  planning board so we uh I responded I would and we end up meeting at uh coffee shop in Portsmith  on Saturday what did you discuss at that meeting he revealed to me that it was his job or he's  been asked to inform me that the city is going to remove me from the planning board you explain  why yes he said that uh city has determined that uh I've committed Mal feance what was your  reaction when you heard that I was stunned

I just couldn't believe what I was hearing why  I I just uh I I couldn't believe that uh I that they want to do this I just it was just B I  just couldn't get it has the Revelation that the city was targeting you for Malin impacted  you and your wife tremendously it's been uh probably the worst four weeks of my life and  probably 10 times worse for my wife in what way well being falsely accused of a crime is uh  something I don't wish on anybody to be dragged through this process the Press as a

volunteer I  just I just couldn't I just don't get it uh did you ultimately meet with Mr telman and the mayor  yes uh based on our meeting at the coffee shop and uh the fact that this was really happening I  I only thought appropriate that I wanted to hear this I want to discuss this with the mayor and  Rick felt that was fair so uh the chair arranged a meeting with the mayor on Tuesday afternoon  the following Tuesday the nth I believe and what transpired at that meeting well the purpose  at l

east for me I wanted to meet to hear it to hear exactly why the city wanted to do this to  me and what information they had explained to me specifically what was you know what what I  did that was so wrong WR to Warrant this action and uh we discussed things and uh Rick was mostly  quiet it was mostly discussion between myself and the mayor and uh he felt it was best for everyone  that I just resign so that's one option that was one option and the second option at the time  was to go go through

what I'm going through now and uh I really felt it was way premature  for the city to do this without hearing both sides of the story and I and I I asked the mayor  specifically I said you know I I realized that maybe I've done things that the city didn't like  but is does the punishment fit the crime here I mean removal is a serious serious consequence  and I just couldn't I knew in my heart I didn't do anything to Warrant this and I I asked uh I  asked the mayor at the time I said Mr Mayor do

you believe that what I've done warrant's  removal he looked me down and he said yes then I turned to the chair and I said Rick do  you believe what I've done warrant removal and he begged off he said I'm not good into that  he just said this is between myself and the mayor cor just quickly that was does this  warrant this process this removal process well so that goes to the question that  I was about to ask which is having heard that testimony Mr Mayor I would ask if  you need to disqualify yo

urself in this matter having predetermined that Mr huitt  needed to be removed I do not believe so I did not state that he were to be removed I  repeated multiple occasions that there were two options one of which being his resignation  the other which being the process that we're going through here that ultimately as nine we  will decide whether or not he is ultimately uh found in malfant and removed from office  our objection is noted for the record on that point so after uh that meeting Mr hu

itt  well let me ask this how did that meeting conclude I I told them I cannot make  a decision till I see in writing what exactly I did to Warrant this I I felt they  accused me of Mal fence I said well I want to see some evidence I want to see specifics  and that would help me decide whether in fact um I should resign maybe maybe you know I just  didn't have anything other than their word so um I requested that they produce evidence of my  Mal feance and they resisted and uh I said then I'll t

hink about it and then did you leave the  city hall yes I left okay um what happened next sometime that evening I received a text from  the chair who had Mr chelman yes Mr chelman that he was hopeful a third option would be  available to have me stay on the board and that uh he would tell me that option in the  in in the morning and uh the next morning I received a text that or I'm not sure exactly  how was communicated but I I learned that uh he was going to try to see if the city would  agree

to let me stay on the board if I signed a confession and combination confession resignation  letter that would be left undated to be held with the chair and that that would allow me to stay on  the board so he was going to run that by the city and uh see if that would be acceptable and as  he testified last night he wasn't even sure if that was legal right right that's right and uh  so and I think as he testified that idea would be that in his discretion if you should in his  discretion warrant

uh removal he would basically file your resignation letter with the city and  you'd be off the board correct that's correct yes showing you the city's exhibit 7 so there's an attachment the last document  in this packet is a letter dated January 11th 2024 and in it you ask the city to provide a  written document itemizing uh the reasons and evidence justifying the request for resignation  fair to say that's fair to say how just give me the behind this letter well it goes into what I  just said a

bout having a better understanding of what I did that was so wrong and uh I just  felt it was only fair that uh they produce evidence against me so I could understand it  so I wanted it in writing and how did it get to City Hall uh it was conveyed actually my  wife had to come to my work I printed it out I signed it she went back to Portsmouth  and hand delivered it to the city clerk's office or the city manager's office I'm not  sure and then the response to the letter is approximately uh 1:21

p.m. on January 11th from Mr chelman copying  the mayor and attorney moral correct and then the mayor weighed in himself  uh that evening correct yes he did later on okay and it was at that point that they were  putting the memorandum into the city packet for consideration at the public hearing and  you had never seen it before is that right right I mean the time frame I was operating  under was very condensed I mean I found out I met with the mayor the chair on Tuesday um I  believe the extorti

on resignation letter was prepared on Wednesday um and then I had Thursday  to make up my mind because if I didn't make up my mind they were going to produce the removal  instruction in the packet for the city council on Friday morning okay um and I asked you little  bit about this earlier but uh specifically uh in the past month since you've been threatened with  resignation and removal and all these other things have you had trouble sleeping yes how about  your wife very much have there been t

ears in your household quite a few yeah have you felt  emotionally harmed by this that's fair to say how's your reputation been in the community um I  think it's holding up based on the people behind me are you concerned however that an  allegation of malfeasance might Trail you with those who don't know you oh yes I do and yes that's all the questions I have for Mr hwit Mr hu are you prepared to go on yes break  Crome uh I might ask for like two minutes with my client is that okay two minute re

cess or  five minute recess just so I can sure five minute recess welcome back attorney moral thank you Mr Mayor so I want to start sort of at the end Mr hu  of what you were discussing and you said that you had a meeting with Mr chelman the chairperson  of the planning board at a coffee shop is that correct yes and um during that conversation you  discussed um a number of matters including some emails you had sent to the technical advisory  committee correct yes and Mr chelman made it very clea

r to you at that point he was concerned about  the content of those emails and the process by by which they were sent to T correct he he expressed  his concern yes okay so you he did let you know that that was part of the basis for the concern  and and the suggestion that perhaps you should resign correct he in he intimated that those he  had concerns about those emails and he thought that this was part of why the city considered this  mou feces yes okay and going back to the issu from the Banfi

eld road project um you had received a  letter from Mr chelman about the emails um that you had sent to the planning board about the  Banfield Road Project correct yes I I received an email from him yes well he sent you a letter  right oh that's right it was an email with touch letter yes yeah okay and he he told you in that  letter that he was concerned about the email that you had sent to the planning board particularly  because it was during the appeal period correct yes and that that was new

s to me so I was glad  the chair sent that because before that letter I was completely unaware a 30-day appeal period  existed well you have sat on votes for rearings within a 30-day appeal period in the past right  for the planning board matters you've had request for rearings within that appeal period yes but  I didn't I didn't make that connection between requesting a rehearing and an appeal period  where something that Banfield Road I didn't make that connection okay but you know as part  of

being on the planning board that once the decision is made there's still other action that  might happen whether it's the butters challenge the vote of the planning board or the applicant  challenges the vote of the planning board correct again at Banfield Road I I was anxious to get  my feelings to the board and I figured hey I have this opportunity it's it's 11 days after the  vote I so that's why I sent it out so that was a learning experience for me and uh that's the only  way I can explain

it well you you had made your feelings pretty clear at the meeting I think you  discussed that with your attorney here just a few minutes ago that you were you know pretty strong  in your views and and pretty outspoken during the meeting correct okay so in addition to a letter  from Mr telman about the Banfield Road um email you also received a letter from me in regards to  that Banfield Road correct yes okay and I'm just referring to something that's in the record  in what's called attachment

a for the city's documentation you're familiar with that is it y  it goes with the charging document take okay go ahead does he have a copy in I'm going to give it  to so this is a letter and correct me if I'm wrong was dated November 9th of 2023 um addressed to you  from myself okay is that correct yeah and you're familiar with that letter yes and that letter sets  out a number of reasons of concern that the city has about the emails that you sent to Banfield  Road and and prior conduct correct

okay yes so there were a number of things listed in there  that were of concern and then at the coffee shop you also learn that there is concern about  the new event the December and January emails to the technical advisory committee right correct  and in addition to that like a year prior you had also received a letter from attorney Sullivan  and from the chairperson MR chelman telling you that they had concerns about your conduct on the  planning board correct yes in prior to July of 2022 you

know from the time you took office in  January of 2022 to those letters going out in July you had received a number of emails from uh  attorney Sullivan in regards to your role as a planning board member and being careful that you  stayed within the bounds of that role correct he sent me several emails yes okay so there had  been an accumulation of issues that had been discussed with you over the the period of almost  two years yes there have been emails to me sent by the attorney okay emails t

he letters from Mr  chelman the letters from the city attorney and the most recent letter in November of 20123  from from myself to you and a letter from Mr telman at the same time about bfield Road and  then you sat down you talked with Mr chelman at the coffee shop about the email that you sent  to the technical advisory committee okay yeah so you're aware of there were many concerns leading  up to that conversation at the coffee shop correct correct so when you had a chance to um speak again 

with Mr telman and the mayor you acknowledge that those emails that you had sent to Tech um  were inappropriate and that you shouldn't have done it that correct I wouldn't say that  no so you heard Mr chelman testify to that or provide evidence to that yesterday um that  you had indicated that you understood that those emails were not appropriate and that you  shouldn't have done it he might have said that but I don't believe it um so you also know that  Mr chelman kind of went out of his way t

o find an alternate solution to this issue um instead  of resignation from the board or removal from the board that there is an alternate if you would  again acknowledge that the emails that you sent to Tac um were wrong that shouldn't have been  sent that that would lead the way to avoiding any of this hearing or having to resign well  again I chair chelman believes my emails were wrong and constituted step to mouth Fe since I  wasn't sure that I'm not an attorney that's why I wanted this infor

mation in writing so I could  ask somebody about that so um so what I'm saying is you had that information in writing from a  letter in November from myself you had a letter from Mr chelman in November you had letters  from the previous July you had a number of emails um indicating why your conduct was not  conforming to the rules of the planning board again that's the city's opinion right but those  are you had a list of what the city believed was inappropriate behavior correct so um um now I 

just want to ask you a couple of questions um about um some of the exhibits you've talked about  and in those emails to Tac you sent two right you sent one at the end of December yes and then  you sent another one in January of this year right okay and um you were actually angry that the  applicant hadn't addressed the concerns that you brought up at your pre-application meeting when  you talked about the encroachment and the parking concerns I was concerned that my uh issues raised  in July tha

t that uh the city would even accept those plans why would the city accept plans that  uh the planning board had made recommendations to change so the plans coming before attack are  there for their review for their consultation for their um advice to the planning board correct yes  but why why did the plane Department even accept them okay but they hadn't even had a chance to  go through that process when you sent the emails correct it had been submitted uh again to the  planning so the plannin

g staff had seen those plans and why didn't the planning staff  reject them is my issue and that is a question you could have asked at the planning  board hearing and not in emails to Tex I just figured why not nip it in the butt but that  was really your intention is you wanted them to change course to act differently well  I wanted I wanted that information to be reflected in the plans I wanted them  to be as complete and as compliant as possible so I also want to talk to you about um the um 7

10 Mill Road Project and your emails  to Vincent Hayes who is the compliance um person in the planning department correct yes okay  and it's his job to go through the planning board decisions and to ensure that all these  conditions some of which can be very complex have been met before building permit is issued  correct okay you agree I understand if you tell me that's his job yes okay well you've been told  that that's his job and in fact Beverly zent sent that to you in an email right that it

's his job  to go through the conditions from the planning board decisions potentially I know aware Council  if you're going to ask him about emails can you put one in front of him yeah well we have them in  the exhibits um in regards to exhibit three let's see I think I'll use mine I'll use mine for okay so it's in regards to 710  Middle Road and it's an exhibit four and it's um on page four of an email  chain um from Beverly to you Mr hwit um in response to your email to Mr P dated July  7th o

f 2022 and in that email um she talks to you about um Mr Hayes and that he's  professional and that he works to make sure that the projects are in compliance  is that what that email shows up here sure so you're aware she made you aware  that that was specifically his job to work on that in regards to any of your  concerns about compliance correct y okay so um the minutes right I also want to talk to you again about um the  Banfield road project and there are minutes from that planning board mee

ting in October October  19th of 2022 um provided by your Council exhibit I I believe exhibit I okay and on page five of  of those minutes um I think we talked about this paragraph before it starts with Mr huitt asked  and in the center there the minutes account for Mr for attorney mccort's advice in regards  to the contamination at Banfield Road and he in fact said that the city was working towards  the same goal um and whether the site plan or subdivision plan was approved it would have an  im

pact it would not have an impact on the amount of liability shifted to the Portsmouth taxpayers  do recall him saying that I've highlighted it and bracketed it there okay so we did address your  concerns during that meeting correct yes that uh well not all my concerns I mean if I was still  conc concerned that uh that the tax requirement that uh that we address was just dismissed I  I had concerns about that and uh but you know that that dismissal um are you talking about the  dismissal on bfiel

d road or some other project no on uh tax had requested that the planning  I believe the wording was that the planning board's the site liability been determined prior  as a condition of planning board approval and you were advised that the litigation and the  liability for the cleanup there was a separate issue well that's what m attorney Mt said but  uh I felt that it's a if if Tac had recommended it's ultimately it's the plainy more decision  I think not City staff so I want to go back now to

um your early um your earliest meeting  I think was January 27th is that 22 yes 2022 and that's all in um exhibit um your exhibit a I  believe I don't know if you still have it up here um but in the minutes of the meeting  should I don't know if we have a page it's not paginated but it appears to be the next to the last page of the minutes from  exhibit for which meeting January 27 okay 2022 so at that first meeting that you  attended as a planning board member there was actually a request for

a rehearing  for a project at 203 Maplewood Avenue and one Reigns Avenue do you recall that  yes I do okay and um you actually voted on that to have a rehearing correct yes  okay but it was the following meeting where the rehearing was supposed to  occur that attorney Sullivan came in and and advised some legal action had been  taken and therefore no rehearing would occur sorry so just generally um just for the  record we have a lot of documents up here um you familiarized yourself with the emai

l  correspondence included within the city packet correct you're talking about Reigns all of them  all of emails in here oh yes I am familiar okay and those are from you when it says Jim or  Jim huitt those are your emails right okay and um I think that that's all I have for questions  okay great I have a couple questions on I'll speak here so I don't need the mic Council  just asked you about the Reigns Avenue motion for rehearing which was 12722 correct that's  correct and um you weren't alone

in voting to rehear that project correct no was a 54 vote  okay and um had you decided at that point how you were going to vote on the substance  of the rehearing if you came to hear it no okay and uh one of the issues that the motion  for rehearing raised was uh the legality of the prior vote with respect to the presence  of a particular board member correct that was part of it yes okay and so that had a a legal  bearing that had nothing to do with the technical aspects of the project right ri

ght um but it  nevertheless would have given an applicant a basis for appealing the decision right correct  so wouldn't it be sensible to rehear the issue so as to eliminate that yes legal problem  from consideration correct yep was that one of the reasons why you decided to rehear that  case it was one of the reasons um again uh I had part of it also had to do with the status  of those contaminated properties okay um and that was the information that they that you then  sought from the planning

department correct yes okay that's all that I have for Mr huitt thank  you thank you attorney iglon so next um and you do not have any further I have no further Witnesses  thank you um are there questions for Mr Mr hu few uh councelor B thank you honor and Mr huitt it's  unfortunate uh we've gotten to this point um and the you stated you were familiar with the emails  included in the packet um I just want to confirm on February 16th you emailed the Conservation  Commission um regarding informat

ion on one RAV 31 RAV and 203 Maplewood Avenue correct y um then  on March 15th you emailed all the planning board members um correct what was on March 15th  you emailed all the planning board members what was the talk yeah I I can't say if I did I  it's included in exhibit three package is there a topic you can help me out with yeah I think  you've done some um some was that parking was that the parking email the the March 15th I bring  it right here counc we would certainly stipulate that any

email that has his email address on it is  what he said okay I just wanted to ask him confirm that he sent him to the planning board members  I just that's all I'm asking um on July 13th um you sent or sorry July 14th and 15th you emailed  uh Vincent Hayes and CC the chair of the planning board yes I did and I did that on purpose to be  more transparent about my activities with the with the status of my neighbors uh approval conditions  um and then on October 30th you sent an email to the chair

and all the planning board members I'm  referring information on 375 Banfield Road yes if you say I mean like my attorney said if my name  is on an email and I sent it okay then on December 27th you emailed the site plan review technical  advisory committee about uh 581 left yet right and then on January 4th you emailed the T um  again about 581 left here Road y okay sounds right that's all I have Council Moro um Mr  HED if you could just let us know because I believe it's practice of all electe

d and  appointed officials to the city that they go to the city clerk's office before serving  and they have a oath of office that you take and you sign a book did you do that  before you started on the planning board no okay he did sign the oath of office book  I would have to check what date it was but he did sign the oath of office book oh  I'm sorry that's okay I thought it had to be done every year no just once you're  appointed and reappointed oh yeah yeah that was way back two years ago I

'm sorry I did  do that okay any other questions councelor Tab and assistant mayor oh thanks your honor  U Mr hwit um none of us want to be here but we're doing our best here um in the case where  you asked Beverly zent to put material in the packet um councelor Moro recalled the chairman  saying at the start of um your term of office and his that material to be put into the packet  should uh go through him do you recall that no I thought if I had interest in having material  on a packet I shoul

d send it to the planting director and uh next question I'd  have would be um when you wrote to the Conservation Commission uh did  any of those members respond to you by email or in person no and did they  in fact um take up your concern about the environmental permits the uh as I recall  the concom chair forwarded my email to City staff and uh when you emailed the TAC um and  suggesting that the TAC require parking demand data I didn't say require I said suggested you  suggested according to t

he test that the TAC would require the applicant to provide it's a  suggestion to them to ask yeah to acquire them to purchas some parking information yeah yes a  suggestion for a requirement um did any of the TAC members reply to you no and did the TAC  act on that at all not to my knowledge okay um and um in the case of Banfield Road you put up your best spirited argument  about the pollution um did you um the result was that it was an 8:1 vote um and you felt that additional information  if I

can would it be fair to say you felt you wanted to follow up on that with  additional information I I just felt there was not enough information presented to  planning board to make an informed decision right that's why I voted against it um did  you consider the vote of the planning board that night to be a definitive action or not  it was an 8 to1 vote but my father followup email was just uh I felt I owed the board a  reason for my behavior when I voted against it okay um I think and yet wha

t you're saying is in  your just now is that you still doubted that the application was complete yes I still do in spite  of the planning board's vote well there's eight people that think differently than I do right  okay um those are my questions thanks Council tab assistant mayor thank you your honor um Mr K  I just have some questions for clarification um before you were appointed to planning board had  you ever emailed Vincent Hayes as a as a citizen no before you gotone on plan AB board had

you  ever submitted anything to the CIP before yes so you knew the process not through the portal okay  and how did you submit it before I can't recall whatever setup they had um so they had different  options the Viewpoint portal was new or at least it was new to me okay um a question um you just  confirmed uh through councelor tab's question that your answers went to to other committees or  boards or Tac um or planning board went unanswered was by the majority correct could you I don't  could

you give specifics on which emails went went unanswered it it would seem uh in the  exhibits before you uh and as touched on did your emails from tac get a reply back no not not  on 581 left for yet no response did your emails uh sent to the um Conservation Commission receive  replies about which site any that were submitted in exhibit no no one responded to me did your  emails that were sent to other planning board members receive replies that are in exhibit again  there's been so many I can't

the ones in exhibit yes not what I recall now um why do you believe  you never received any response I have no idea you have no idea okay that is all I have thank  you sistant mayor uh councelor ardi um I have a question for attorney iglon yes is that all right  right now okay um throughout your presentations you uh referred to the what it qualifies as  um being a meeting and um you stated that um there be either be a quarum or a vote and using  the word or to me means one or the other but you

implied and or actually insisted that that meant  both no no it's disjunctive or is disjunctive and is conjunctive so it can be either or right so  when it says decision or discussion either one constitutes a meeting okay exactly so we're  all on the same page there however if we are going to discuss this now I was going to save  this for argument but uh well if we could save it for argument then that would be great well  it's pertinent to Mr Lombard's question kind of goes beyond that I'm I'm a

nswering his question  and I think right now is the time to talk about this time to talk about sorry Lombard councilor  Lombard's question was whether or not it's and or is that the question what constitutes a meeting  is his his overarching question uh before you get into that I was going to ask uh attorney  llan uh to uh bring his defici definition of a a meeting and whether or not a to keep it out of  to for the council that for us understood I was going to refer to attorney Laughlin's materi

al  that he produced for us well we're saving some time then good all right so uh attorney Lin the  question is whether or not a uh email uh uh to a quorum of a body is a uh considered a meeting  in and of itself let me answer that and I um I was asked a question yesterday um or came up um  as to what constitutes a meeting and um so this afternoon I went back to did do some research  on on that topic and um uh and it turns out that um I've I've written kind of extensively on  that matter and I I

I know that I'm a um uh out toally grandfather that sometimes forgets things  um but um I've um um I I don't recall everything that I've written and this is this is one of  the volumes uh one of four and um there's a section here that deals directly with this and  the topic of what constitutes the meeting and um the um in this book and it's it's my material  so you can take it or leave it for but it says to answer the question as to whether the exchange  of emails among a quorum of public of a

public body could be found to constitute a meeting it is  necessary to examine the definition of a meeting in RSA 91821 again and I'm quoting um Cordell  Johnson uh who was at the municipal Association at the time his article provides a framework  for conducting the analysis noting that there are four elements in the definition of meeting a  convening b a quorum or majority of the members of the public body C in a manner that such that all  participating members are able to communicate with each

other contemporaneously D for the purpose  of discussing or acting upon matters over which the body has super vision control jurisdiction or  advisory power if all four elements are present there is a meeting notice must be posted and it  must be open to the public and minutes must be kept and made available to the public if any one  of the conditions are not present however there is no meeting as the requirements for meeting  do not apply a sequential exchange of emails by members of a public

body will generally not  represent a convening uh of the body since uh they are not all in one location then it goes  on that email exchanges among even a quorum of a public body will not generally constitute  a meeting uh requiring 24 hours notice and minutes and there's been some confusion on this  origin at one point there was a um Superior Court decision that said that exchange of emails was um  a meeting and um couple years later uh that that was a the legislature addressed that and and  Co

rdell Johnson who I'm quoting in this book uh lays out when it's a um when it's a meeting  when it's they're all they're public documents when you send uh a uh a document to other members  of the py board but there it's not NE necessarily meeting one of the examples um if one member of  a planning board sends an email to the rest of the board about a proposed zoning Amendment uh  regardless of when whether any member responds or whether there's any discussion the email is  a government record uh

but then that so next step is is at a meeting and um what I uh when I  found the I felt an obligation to disclose it um that let uh uh I didn't want it to be come  out that he you said this in your book and um uh and you didn't clear up the question  from last night so that's what I want to do that Mr Laughlin I'd like to circulate Cordell  Johnson's uh framework that you uh just talked about which was included in his material from the  New Hampshire Municipal Association which guides board s a

nd municipalities in trying to determine  whether a sequence of electronic communications constitute a meeting and I understand Council  has an objection to this for various different reasons but this is an nhma uh document prepared  by Mr Johnson um for exactly that purpose do you see any issue with accepting the document no and  I think that uh from what I understand from our discussion earlier uh that the City attorney has  some questions about the wording of it but um I think introducing it

let the council see it so  that's right I was just going to point out and um I think we agreed I think we agreed that the  wording in the diagram is not the same wording as the language in the statute and there's a critical  difference in the language um if I could have a copy so um in this diagram it talks about are the  communications used to discuss matters over which the body has supervision control or  advisory power but that's not the language of the statute the language of the statute is

are  the communications for the purpose of discussing or acting upon a matter or matters over which  the public body has supervision and in legal terms the the language is very important what  did the legislature use they use the language for the purpose of discussing or acting upon  a matter or matters so to the extent that this diagram is helpful to anybody keep in mind  that the language used is not the language in the statute noted you just want to pass  it to council cook she can pass it do

wn the line your honor I ask attorney Lin a  question certainly um what he's here for and I I remember this from training so  I don't remember the date exactly but I do believe probably in the 2008 2010 time frame  wasn't the RSA 91a adjusted specifically in regards to email yes and was your uh the  passage that you just read would that be before or after no that would be because  that reflects the the um uh it it it let me the um this section um do we have two more of [Applause] these so thew t

he um I talk about the superior court case that  caused most Municipal lawyers and and board members um difficulty and this is in 2008  um amendments to RSA 91a provided guidance to public officials um laws of 2008 chapter  303 Define governmental records as follows any information created accepted or obtained by  or on behalf of any public body or or a quorum or majority thereof or any public agency  in furtherance of its official function um and referring to government record without  limiting

the foregoing the term governmental records includes any written Communications or  other information whether in paper or electric electronic or other physical forms received  by a quum or majority of the public body and furtherance furtherance of its official  function whether at a meeting or outside meeting of the body um so it's a public  it's a governmental body they clarified um then um the that goes on to U what I I  read about uh to answer the question as to whether an exchange of emails

among a quorum  uh could be found to constitute a meeting it is necessary to examine the ex the definition  of a meeting and that's when I I cited the ABCD that Cordell Johnson you an article in the in  a continuing legal education booklet um 200 12 I think you not going to ask a follow  up um because I I think this is a pretty critical distinction so um that being said  I believe you said the of the ABC and D it was the Quorum wasn't that and the reason  the Quorum isn't met is because there's

no physical uh because electronically  they're not physically the same person presence um yes and is that based on the fact  and this is like we ran into it in covid in order to have a meeting even if some attendees  attend by Zoom or telephone you always have to have a physical quum present because that's  a key New Hampshire requirement I I think and I think that's um it's yes it is but it  it's it's a little bit different than um um well it was I the reason that was I assumed an  acted was b

ecause um it was hard to get um it was difficulty getting quorums and uh but um  this this this article um and the the writing and I call codell Johnston um who is has taken  over the writing of of the these volumes for me and uh and asked him about about the what I've  written here and um um and a little bit of the background of the whole thing and and he he  said no that that was his understanding and as to what I've written about email exchanges uh  not generally constituting a meeting okay t

hank you councelor cook Bley thank you your honor  um I have a question for Mr huitt um Mr H do you have water yeah good thank you for being  patient and listening to all of our questions okay thank can hear you thank you for being  patient and taking all of our questions um so my question is about um the December 11th  20 21 email before you after you were voted in as a planning board member but before you  were um sitting as a planning board member in January um where you said specifically um

to a  group of individuals as you may be aware this is quoting as you may be aware City Hall and  the developer of Reigns Avenue in parentheses de lenzo have plans to build another monster in  the north Mill PL on 100 foot Wetlands buffer at Reigns Avenue see planning board agenda here  and then the email goes on um were you warned about this email and fairness by legal counsel  um before you took office officially yeah there attorney Solin sent medium I'll having concerns  about that private em

ail that inadvertently got to City Hall's hands okay when the planning  board then which you were sitting on um met on January 27th 2022 um and voted to rehear the  case on uh Reigns Avenue was this the same Reigns Avenue that you were referring to in this email in  December yes it was after receiving that warning is there a reason why you didn't recuse yourself  on that vote I saw no I felt no reason to recuse okay um and my other question may be for legal  counsel as a follow on to this um wer

e any of the individuals that were included on this  email chain in December party to the legal action that then limited the planning board's  discussion of Reigns Avenue so in TR is that a question direct to attorney no it's directed to  attorney Mor yeah sorry that's the way I hang on so as I understand your question it's the email  goes out to 105 Bartlett appellant correct right and your those are all the individuals who were  involved in a litigation um in regards to that particular propert

y was that your question  um my question is actually were any of those individuals involved in the legal action that um  that limited discussion of Reigns Avenue um later so the planning board voted my understanding is  January 27th to rehear but then it wasn't reheard because there was legal action correct it and do  I know if those people are the same appellants in the other matters I do not know the answer  to that question or if any of them are right I believe um attorney mallum is involved

um in  many of those matters but I can't say for sure if in every single one of these and I guess then  my other question is is in that legal matter was this email raised or the vote of the planning  board on January 27th not that I'm aware of no and not not that it's documented in the um okay  in the minutes of January 27th meeting okay that I've identified at this point um that this was  raised as a concern okay thank you and then I have a follow on for Mr huitt on a different subject  certain

ly um so Mr hu um my understanding from the testimony yesterday from uh chair chelman was  that you have gone through extensive um planning board training from the New Hampshire Municipal  Association and also through the planning board certification process is that accurate I wouldn't  call extensive okay can you describe that training for me I believe in March of 2022 uh an attorney  from New Hampshire Municipal Association came and spoke with us about the very basics of being on  the planning

board okay and through the planning board certification process yeah that was an  online thing and uh frankly I felt uh it was so basic that I even forgotten that I completed it  so it was it was the most um Elementary aspects of being a planning board member did you have  specifically training on the Quasi judicial nature of the planning board or the jurist standard I'm  sure um attorney Buckley have mentioned that okay at some point okay and so after chair chelman um  warned you in July of 20

22 and then again in I believe you received a second war warning in  November of 2023 about your responsibilities as as a planning board member And in regards  to violations of either RSA 91a or the juror standard In fairness um why did you proceed  to take similar actions again December 27th and again January 4th I I felt and I continue to  feel that was not a violation of the jury standard okay I was presenting public information that had  already been made public to Tac and do you have any le

gal training as an attorney no okay so um so  were you getting legal advice from outside Council outside of the city's legal department no okay  so um but you believed that your understanding of the law was more accurate than the city's legal  department understanding or the understanding of chair chelman yes okay thank you quick followup  to that um attorney wlin uh do you believe it creates um any uh difficulties when a planning  board member emails suggestions to an Advisory board that the in

formation coming back to the  planning board would would that constitute uh any bias I think that from throughout this entire  um matter the concern of the legal department reflected in these emails was um creating  the appearance of in not indifference and um that uh even on on the emails the exchange of  emails I think it was the chairman k chairman Gman yesterday said where said his worry was  that you send out an email and it um there's people respond to it and that clearly is when  you one

that crosses the line if there were responses and um um and that's and one of the  other things in here in this I me quote this another paragraphs if the exchange of sequential  emails has a flavor of deliberations it would be a violation of RSA 991 a22 which provides that  Communications outside the meeting shall not be used to circumvent the spirit and and purpose  of the right to know law as expressed in 91 A1 and so I I think the the idea of um uh these  emails I think and a lot of this the

concern of the Regal Department was the impression being  created uh by by by um the conveyance of some of this information and is that is and they were I  think they were trying to address um whether any in this case Mr huitt was in fact uh impartial or  would appear to be impartial to a a um independent judge knowing all the facts okay so the question  is not whether or not the email itself self uh to a u a planning board member could email in  your opinion uh the technical advisory committee

um as long as the tone of the email didn't lend  itself to the appearance of anything other than indifference the I think there were two concerns  one was the email whether the when the people receiving it um uh to the extent if was a um a um  board that has to operate under the juror standard that that would trigger discussions outside of  the meeting and um I forget what was the second part of the question that well now I forgot but I  think it it was a concern uh oh we asked if just was the e

mail itself um correct an email to tack  itself an Advisory Board to the planning board uh would that uh uh raise the question of a lack  of indifference I think it I I think it would be I think it raised the question it would it would  be you have to look at it and say does this appear that this individual uh is um indifferent on that  and we can debate whether had a right to do it or um or not but I think the thrust of the city's  um concern was the creation of the appearance that um this pers

on wasn't a different Mr huitt  um thank you again for Testimony here today um do you believe uh it is your responsibility as  a planning board member to to appear indifferent towards applications that come across the planning  board's desk not only not appear to be indifferent I just can't have the appearance I must be  indifferent do you think that there are any limitations to what you can uh do with regard  to uh the appearance of a lack of indifference given that other people could look at y

our words  differently than you mean to intend them very much so people interpret language how they interpret  language so it's individual do you believe then that sending emails to Tac with suggestions on  requirements uh could be read by somebody that believes that there is a lack of indifference  from you on a specific project if that's the choice but uh they can misrepresent that when you  say misrepresent that do you think misrepresent your lack of indifference no misrepresent how  that inf

ormation is supposed to be perceived do you believe that as a planning board member  staff could potentially treat you differently in the context of questions that you have on a  Butters no they I should say they shouldn't I mean if if I'm an abutter they should treat me  as an abutter period do you see where sending an email where one yourself has stated that it  was for an abundance of caution that including uh the chair of the planning board along with  the planning Department director could

appear to others outside yourself as requesting information  as a member of the planning board that would not be available to other people as Citizens I can't  I can't predict how other people are going to perceive that but my intention on sending emails  to Vincent and copying the director and the chair was transparency because I wanted to be sure  they knew that if they had concerns I wasn't doing this on the slide I wanted to be out in  the open that I had a concern with Mya butter do you thi

nk having sent the email uh it would  have been important to note that you were doing so as a citizen on now today certainly I didn't  then do you think that there are any uh newly adopted rules of the planning board that would  cause you to engage differently with both the planning department now uh and other members  of the uh the the other um Committees of the city of Portsmouth yeah the I believe they're  adopted in January the new planing board rules so I think they're they are different th

an they  are when the last two years one of those being to email chairman shelman or the chair of  the pointing board uh with any requests for information to be included in the packet is that  a rule that that's a new rule is that a rule that uh you would uh abide by uh in the future I I  will abide by all planning board rules the new rules that's all the questions that I have can the witness be discharged any  other questions he may thank you Mr [Applause] we now uh move on to I believe just go

t a  papers are piling up um all right public comment we have public comment do  we have a list of the public comment participants oh great June  is bringing this up thank you thanks J okay um do you uh so we're going to have  everybody uh because there's new additions um Everybody stand um and be sworn in by uh  Kelly that wishes to speak or city clerk Barnaby do you state your name I drum got the testimony  I'm about to give the testimony I'm about to give will be the truth the whole truth and

nothing  but the truth the truth the whole truth and nothing but the truth upon the pains and  penalties of perjury upon the pains and penalties of perjury thank you thank you and is  everybody that just stood up signed up here what's that okay um Elizabeth I will make a note uh and  put you at the end okay um is anybody else you're on the list okay uh we have three minutes uh  on this attorney Lin do you know how to work that machine or you need a refresher okay um  I'd ask that uh you keep yo

ur your uh comments to three minutes uh I'd also ask if it is a  uh in the affirmation of another participant it carries the same weight uh to say that  you agree if you feel compelled to do so if you are not going to raise other points I  understand everybody has the ability to put things in their own words uh but brevity is  also effective so with that Roy we promised you would have the first crack at this Roy  hell uh topic questions of the city board members Roy helel 777 Middle Road wsouth

good  evening mayor and City counselors questions on the city board members in reference to  the city board members should they not do their due diligence to find out all that they  can about a project that they are to make a decision about that is going to come before  their board like the effects it will have on the neighborhood the height the looks if it  infringes on the borderline or the property of the wet of the property or of the wetlands should  they not know as much of the project as a

city or the developers before they come before them to  make a decision or does a city want the board members to know as little as possible on a project  before they are to make a decision to vote on it shouldn't they know as much as the city or what  the developer has presented as for the rains or North PA Pond project that was referred to of Mr  huitt before he became on the board it was like many others of us that were against it because  it was within the 100 foot Wetlands boundaries and th

e height of the project but because  the developer promised to build a walkway and put benches and bushes and in the foot 50  foot infringement then they turned it over to the city so that the city could do the upkeep  of the and the city tax payers monies would be spent on it what a deal for the city they also  questions if this would cause flooding in the future as in Hampton and Ry have now because  building on the wetlands isn't this a questions the right thing for the project for our city 

and for the taxpayers as a board member to Sho to use thank you thank you Roy I'd ask that  you hold your applause uh Christopher White good evening I Chris White I live at 28 Porter  Street Mayor mcer city councilors thank you for the chance to speak to you tonight about this  critical issue I will leave the legal definitions of malens to the attorneys here tonight I wish  to speak on a far broader issue that is at stake that of public trust attorney Morell cites it  often in her memorandum I a

gree with her that it is Central attorney Morell would have us  believe that Mr hwi's Behavior violates the sense of public trust involved in carrying  out his duties as a planning board member I couldn't disagree more it is attorney morell's  behavior that violates the public trust her memorandum on this matter is classic projection  in psychological terms attorney Morell together with her City Hall colleagues have done all  they could to destroy the city's image around the town Mr huitt on the

other hand repeatedly  went beyond the limited scope of presentations and applications to dig into the facts to  determine what was right and what was wrong in the proposals before the planning board I  would want want my planning board members to use their expertise their training and their  brains to determine what was accurate and true in the applications before them I would not want  some tight restrictions placed on the member's ability to inquire to investigate and to confirm  the relevan

t facts of the application they should be appointed because of these capabilities not  in spite of them the city is a great risk in my opinion if we were to follow attorney morell's  and City managements restrictions of discouraging curiosity and critical thinking on the part of any  of the city boards the city should encourage such traits not stifle them the city should welcome  diverse thinking and intellectual honesty not squelch these important qualities the danger the  city creates with its

actions against Mr hwit is to destroy the rights of the minority the rights  of the abutters and yes the rights of the public to protest against proposed developments when  the proposal threatens the welfare of the city and its residents how can the city with a straight  face say it attempts to protect and defend public trust when in fact it is doing everything in its  power to destroy public trust City councilors I urge you to vote against City Management's  proposed f findings and rulings sta

nd up for the public trust don't join with management to  destroy it protect us from the city's actions and keep Mr huitt on the planning board thank  you thank you Chris next up ask you to hold the Applause Mr Mayor did you state we could  stand if we agreed with a with a person I have asked folks to not applaud obviously you have any  First Amendment right to do what whatever it is that you'd want AG with Chris White you will have  you're not listed on here but uh noted uh Sue uh pidora again

on public trust Su polyur 245 Middle Street and um certain  occasions in my life I have been in situations similar to this when all of a sudden everything  and anything I did was Spin and used against me let me tell you there that I like trials and this  sounds like this looks like a trial to me I always learn things like I learned that the city doesn't  seem to have an adequate followup after building permits are issued with conditions to ensure  that those conditions uh were met before the bui

lding is approve I was here when the port walk  was built there were many conditions in there that were ignored I also learned that the planning  board can still allowed permit to subdivide a contaminated piece of property without regard to  the consequences to the city and the residents I also learned that many of the ordinances referring  to quide judicial boards and meetings right now in in the city are not aligned with the rsa's  covering such matters rsas are takes Supremacy over this attor

ney laughland you cited the New  Hampshire Constitution where the proceedings began yesterday requiring to be an impartial  judgment over the individual after you read the statement about impartiality this proceeding  should have been summarily dismissed as a lawyer would you would it be allowed for jurors to  be seated at a trial where many of thems were already predisposed against the defendant I  think not many in theas including the mayor M mcran had issues with Mr huid even before he  was a

ppointed to the planning board kudos to councelor Denton for his honesty about not being  able to vote without bias thus recusing himself Mr Laughlin and Mr Mayor I have no expectation of  impartiality in this proceedings none I've been here too long I have seen all the political  maneuvering this should have been avoided this kind of hearing is a fiasco is divisive is  further going to divide us among those who think that we should do the right thing and an even  bigger Machinery that wants to

tear people who had a different opinion down whoever gave you  the advice to go with this kind of proceeding did not advise you well thank you thank you Su  next up Esther Kennedy on the topic of public trust Esther Kennedy um 41 Pickering app and Mr  Laughlin I uh was in our school's um law area to look up what you read tonight so I'm glad you  brought that up because I was going to so it kind of took care of some of my conversation  here tonight I came here last week and asked you why why were

you doing this was it lafette  is it a builder a developer I asked you why why why would you put a man with the qualities that  we heard about Mr huitt tonight through all this why would you put his family we know it really  doesn't have anything to do with the right to know we know it really doesn't have anything  to do with a quorum we've heard that tonight and if we really want to look at a quorum on  May 8th I saw counselor cook I saw counselor tabber I saw counselor block I saw counselor 

Denton oh no I didn't see councelor Denton I saw councelor Bagley and I saw councel ardy in a  bar hanging out May 17th and I'm putting this on the record for you sir to uh potentially have  to take it Forward because I think most of us know what the vote's going to be here tonight  hopefully I'm pleasantly wrong on May 17th we talked with the city attorneys who had met that  they had talked to all of you and that you miss aded you were there that is a quorum there's  nothing about emails that w

as people together in the same place and I have heard from others  there was another Quorum which you know the other thing um I've been hearing people talk about for  the record is that board members cannot talk to City officials and I'm actually okay with that  as someone who has a board over me as a public school administrator however in the land use  committee and I went back to verify this last night yes at 12:30 um Miss Monroe councilor  Monroe has regularly referred to not only on the plan

ning board but in the land use boards  let me catch up with the um planning committee team you know she meets with them for that land  use it's very clear she is a sitting member on that planning board and what is good for one  is good for the other so I ask you all are you Prejudice in this case should you even taken  this vote tonight I ask you mayor to stop this proceeding and call it a day thank you thank you  Esther uh next up is Page trace on the topic of self-explanatory good evening Mr M

ayor  attorney wlin attorney's present as unfortunate representatives of Mr huitt I am Paige Trace I  live at 27 Hancock Street and the fact of the matter is as Mr Kennedy is correct there were a  quorum of you that met several times at the State Street I witnessed it and I received the same  city attorney's response so some of you should know councelor cook councelor balock councelor  Bagley councelor uh Lombardi um what a quorum is now councelor Bagley at least had the decency to  vote against

this situation tonight but the rest of you have been involved in quorums you've also  Seated on that been seated on that Council for over two years you're not Junior counselors you  should know exactly what a quorum is you should know what RSA 91a is you should be schooled by  this within an inch of your life by City staff and yet here is is when you're asking questions  why so let's go back and look at um councelor or attorney morel's documents the big huge dump of  documents in the city counc

il meeting a couple of weeks ago those were the ones that all tried and  tried to prove Mr ht's guilt you all voted then at that City Council meeting to bring forward  this particular situation tonight I'll call it a trial because I see five City attorneys here  including Mr lachan and I see one representing Mr huitt so whatever else you may say you all  as a council with the exclusion of Mr baggley councelor Bagley and councelor Denton voted on  the guilt bringing this forward that's all the in

formation you had you had no information in  that packet to defend Mr hwit he didn't have time and he wasn't allowed as a matter of fact  he didn't even know what he was being accused of specifically at that point but you all voted  as a council to bring it forward so you already have bias you voted on his guilt in the absence of  his innocence shame on you all it's a sad day for Portsmith and you all are better good people  than that thank you thank you Paige next up is Patricia Bagley on no to

pic listed what else  would it pat baggley 213 Pleasant Street I don't have any formal notes um but I will say that I am  disgusted I am sad to witness this dehumanization of a volunteer citizen I don't know how what how  else you would characterize it you've dehumanized Jim hwit for trying to seek answers and his  wife I I really feel for him he is a man of integrity and he also as you all know we've  talked about bias bias bias well you're well aware that he did not support you in the last  el

ection so you're already biased just sitting here I just talk about bias so so um the planning  board is not allowed to ask questions of the city staff which is a new rule that was frowned  upon before but it's a new rule as of January um the planning staff gives the planning board  information that they need for an application but according to attorney Sullivan the staff  gives information to the planning board that the staff feels is relevant that's a little  biased in my book they think it's

relevant and they give it to the planning board  the planning board is not allowed to ask anything of TAC but Tac can advise the  planning board which is made up of city employees I just think this is this is such a  railroaded job I I'm embarrassed I am saddened and I I don't really feel like Le caping all of  you because you give many hours to the city but this is not our finest day you really owe the  hwis an apology and you and this is our tax dollars we're paying for all of this the circus 

good night thank you Pat next up Bagley hope a comment have fact follow your wife Dick Bagley to3  Pleasant Street um I'd like to speak directly to the last two days because I think that's why we're  here this in effect is a trial the recomendations made to remove um the applicant here so to speak  uh from his job and you're the jury and so I don't understand why this isn't a trial we were sworn  in but you weren't seems a little strange um I might agree with many of the comments made  but our

job isn't really to reflect on what we think you do right or wrong our job is to think  about what was said we're intelligent people we don't have to be lawyers to hear the evidence  so there's been two claims made Jim committed committed malens and violated the right to no  law we've been through this in Portsmouth 4 in 2016 Jim Spain as a city counselor uh violated  the right to no law According to some of you counselors including Josh Denton who's not up  here right now and subsequent to that

um there was another case brought by Mark Brighton  who spoke tonight and Arthur CLA that John Taber wrote the right to no law that didn't pass  mustard with the the mayor and the city manager Bob Sullivan it did go to court and there was  a whole issue about um legal standing that sort of got John Tav off the hook so I there was  a third case which involved Esther Kennedy of the Beckstead five guess what uh Jim told you at  the very beginning that he supported them and so you can see that ther

e's a there's a pattern  here and the pattern is for lack of a better ter politics it's the real world in which we  live however fortunately in the past we had a wonderful mayor also by the name of block  and when Jack was addressing the Jim Plain uh situation he made made a comment before the  city council meeting where Josh Denton brought it to a head let me just read you what  he said this is in the Portsmith Herold Carol mayor Jack block continues to believe  assistant mayor Jim Spain should

remain on the city council despite releasing information  from a closed door non- meeting two weeks ago I'm not inclined to see him removed from  office leelock said Friday what he did was wrong but certainly doesn't reach the  level of removal from city council mayor McAn you have a soul you know what the  right thing to do here and you can lead and not follow thank you very much thank you  dick next up Greg Mahana as the interested citizen good evening my name is Greg Mahna  I'm a Portsmouth

resident and I'm also the current Vice chair of the Portsmouth planning  board tonight however I am speaking as a simple concerned Portsmouth resident I will discuss  simple publicly available information and not planning board business or applications first if  you read the planning board rules and regulations which are readily available on the city website  you will see that the term juror standard is only used once in that document this is curious  could it be that this is only this is becaus

e it is a guideline for impartiality only it could be  just that I wonder to add planning board members are appointed from applications submitted and  then approved by Council H legal jurors are randomly drawn from voter records then further  selected by opposing attorneys you will have more time we got a new guy on the uh on on the uh  rookies legal jurors are randomly draw drawn from voter records then further selected by opposing  attorneys jurors are then sequestered and isolated planning bo

ard members are neither sequestered  or isolated following this point jurors receive the facts and testimony from attorneys and  investigators that can be sent to jail for withholding evidence or material planning board  members receive allegedly relevant fact from the applicant and from the city who goes to jail if  all the facts aren't presented by City staff in Portsmouth it seems that the planning board member  is the one that goes to jail attorneys moral and Sullivan want you to believe tha

t the planning  board member should Ry solely on information and the recommendations oddly provided by  the applicant in the city blindly and then stand and take the fall this is absurd personally  obtained public information is is not necessarily biased planning board members are selected and  appointed based on unique talents the current board contains a title attorney a real estate  professional a real estate professional with a planning degree a civil engineer a DOT engineer  and former plan

ning board members if the juror standard was applied strictly here members would  have to be selected randomly off the street that's not how it works I like to make simple points Mr  hu is accused of sharing public publicly available and important information with Tac I want to know  tonight why didn't the planning department share this information with teac this seems to be a  pattern in Portsmouth what are the repercussions for the poor work of City staff I want to know  this proceeding is a W

itch Hunt followed by a proceeding which has no rules or guidelines this  is being made up as it goes and will not survive proper legal action this is a travesty to the  city of Portsmouth and its residents the only outcome here will be additional lawsuits and the  complete reluctance of its citizens to volunteer their time and experience for the good of  the city that we love and reside in I urge you to vote no tonight this is a joke good night  thank you Mr Mahna next up Andrew Harvey on htz m

alens hello my name is Andrew Harvey I live  at 710 Middle Road I'm the abutter that's been discussed uh thus far in exhibit 4 um on May  19th 2015 Jim hu appeared before the board of adjustment to attempt to construct a barn 3 feet  off the property line with 710 Middle Road the HTS were rejected in their efforts years later  in the weeks leading up to my submission to the planning board I came home from work one day to  find Jim waiting for me on the back step of his house he came onto my prop

erty to ask why I was  having the property service surveyed and what my plans were I told him I was build interested in  building a Dadu and was seeing what was allowed Jim explained how he wanted to build a Dadu as  well and seemed to suggest that my chances would be better if we went together while I cannot  know what his words truly meant I felt like he was telling me if I didn't help support him that  he would oppose me as Jim explained building him building a Dadu would involve further expa

nding  his access over my property and would cause me significant econom IC harm I felt so intimidated  by the interaction that I reached out to legal counsel on their advice I asked the hu to keep  any further communication about the development to a written form Jim as his Council notes  subsequently assertedly assertively fought against my development to read all of these emails  now and found out that even after everything I went through after I had to sit through the hu's  horrible personal

attacks at the planning board after I had to pay an attorney to go to Superior  Court Jim was still using his position behind the scenes to thwart me is chilling Jim's Council  patted him on the back for recusing himself from my extension led him for doing the right  thing he does not however acknowledge that Jim has been on the planning board while all of  the new rules regarding adus were passed a multitude of meetings have occurred where Jim  has helped shaped and mold the new rules all thes

e new rules have have directly affected the  economic viability of my project it has become a grossly non-conforming structure additionally  the new rules have increased his ability to get what he wants in the future at not a single one  of those meetings did Jim acknowledge his bias or recuse himself from voting to me this sounds like  a textbook case of Malin he appears to have used his office to harm me and to benefit himself I  would strongly encourage the council to remove Jim hwit before h

e hurts anyone else thank you thank  you Andrew next up Arthur CLA on this isn't a court Arthur CLA 431 Pleasant Street the definition  of a bully is somebody who is bigger or more empowered who exercises unrighteous dominion and  Bullies a smaller less empowered person there's somebody here tonight that has been very quiet  and that's Beth Moro because Beth Moro might remember something from 2016 2016 Beth Maro  was part of a group that was trying to push work Forks housing and specifically spo

ke by  email to members of the planning board which she was on City officials Etc pushing to get the  echo AV project passed this was the subject of a a newspaper article that you can certainly  read but I'm going to submit into the record some of this document so she put together the  the document that they were sending and it said it it is hoped that the attach can be used around  committee members ability to entice other members of the community to support Echo AV so 10 times  worse than anyt

hing that Jim Huber is accused of doing Beth has volunteered to speak with  anybody who'd like to go over the aspects of what is attached if they have questions included  included on that email or Dexter herself Nancy po cobbert puff coun former counselor Perkins  Rick tainter the infamous Steve marshand Etc according to this each Comm Committee Member  will be asked to reach out to at least one other supporter of Workforce housing to engage  that supporter in the process and request that person

business attend the hearing  in support of echo that's role was she'll contact the real estate Community according  to the newspaper articles Comstock confirmed Friday afternoon that maroe crafted the  attachment for email about the important various issue variance issues the city will  need to consider the document describes the requested variants in a section titled  breakdown of each criteria and how they can be supported which details arguments  that can be made in support of the project an

d her quote she says it's summarized she  does not believe it is inappropriate for her as Vice chair of the planning board to  advocate for a project I don't see how that's inappropriate as it has nothing to do  with the planning board so what we're seeing is there's different rules depending on  how you vote and who you are there was no outrage for attorney marose Behavior there  was no public hearing like this you guys are bullies and you're targeting him you guys  should have both stepped dow

n but attorney Sullivan has gotten a lot of you guys to not  have to deal with the unethical behavior that you exercise in your office thank you this  is one big family you should be ashamed you really should thank you're a bully next up  Peter Huda on subject of this special meeting process good evening Peta to Ed South Street  I have some questions that you need to think about first why was the agenda and the Public  Announcement not aligned on the announcement of a non-public session yesterda

y where was  the announcement for the non-public session after it was initially on on on Friday raises  questions about the inconsistency in compliance with RSA 91 yesterday we witnessed a  violation of transparency around RSA 91a and the standard of impartiality akin to a  juror's duty when the city council convened a non-public non noticed meeting in your faux  Court here just the perception that the city council who you are acting as a judge and jury  here strategized behind closed doors with

only one side represented on the on an agendum  item that they will be voting on is deeply troubling this scenario which would never  occur in a real court for judges or juries and contradicts the P the principle  that attorney Sullivan stressed so much yesterday he stressed that the city council  and planning board must follow the standards and actions expected of a judge and jury in a real  Court proceedings could this have biased you all another troubling aspect from yesterday's  proceedings

was the was the behavior displayed by City councelor Denton while recusing himself  which unfortunately has become commonplace for councelor Denton the totally irrelevant political  grandstanding and opinion ated defamation of the prior Council by councelor Denton had no place  here but as usual councelor glenton couldn't help himself such actions not only distract from  the professionalism and integrity expected in these meetings but also fail to contribute  constructively to any deliberations

that you had next I'd like to talk to you about the  introduction of a different opinion by the City attorney than was originally put in the packet on  Friday originally according to the City attorney the accusations against Mr huitt were for a claim  of malfeasance in office as outlined in in the publicly posted accusation on Friday however in  the latest version there has been a shift to an acquisition of betrayal of public trust defined  as a need to balance individuals party rights with the

broader Community concerns what seems  to have been overlooked here is the fundamental reason why members of the City Council planning  board and all others take an oath to help uphold the Constitution interpret the relevant New  Hampshire State statutes or rsas and Municipal ordinances for each application presented to them  public trust hinges on the adherence to the law and procedure rather than the influence of City  staff and developers seeking outcome thank you you have to do the right th

ing here Council just  you going into non-public session to discuss this is an embarrassment to this city thank you  Petra next up is Jim Lee investigation and Engineers good afternoon Mr Mayor counselors Jim  Lee sagore Avenue Portsmouth I was appointed a member of the Zoning Board of adjustment by mayor  block some years ago when served on that body until this past December a couple of those months  as the chair of that I've heard some testimony about that we were discouraged from doing our ow

n  personal investigation of cases before us and I'm here to tell you in the real world that it did  not happen in the hundreds of applications we considered I made a personal site visit to each  and every one of those before the hearing and did some independent investigation of my own on those  things so we individ independent investigation does take place whether you want to believe it  or not and after listening to these proceedings for the last couple of days I made a decision  I do not want

to be sitting in the chair that Jim hu is sitting in and I don't want my wife to  go through the hell that Liza has gone through I have an application pending for a reappointment  to the zoning board I'd like to withdraw that application effective immediately I do not want to  serve this Administration thank you thank you Jim next up Jackie C pittz on confusion I hope you'll understand my  confusion as one counselor put it I'm too old and I should probably step aside  um I am confused I'm confu

sed because I'm not sure what a public hearing is anymore  or what a trial is I know that at a trial the grand jury or the people who indict Do  not sit on the jury so I'm confused and I've been sitting here for two days I ask you  about Free Speech I'm on the recreation board I we have a project probably that's pending  I would want to do my own research I understand that staff will do research I understand that  you know we'll get certain information from the board and we're only advisory I wa

nt to do my  own research I have never even in the legislature voted on a bill that I didn't research thoroughly  and try to understand to the best of my ability I won't do that I I won't vote on something I don't  know and I don't feel that I've done my best there's a lot I want to say maybe I'll send it in  an email and it could be a meeting of course I was there when they discussed meetings I'm asking each  and every one of you to look into your own Souls your own Hearts I don't know of one o

f you who  has not misspoken or who has not been accused of misspeaking rightly or wrongly hurtfully or  not hurtfully who has not violated the city Charter I have had many discussions with Bob  Sullivan about matters of 91a not in public not nasty not let's get this corrected let's fix it  look at yourselves and be honest with yourselves and find out if this action is not over the top  there's one thing in a trial I'm not a lawyer and don't even pretend to be but there's one thing  that nobody

ever mentions and it's called jury nullification that you may look at all the facts  and you can decide what you want to do but then you can also look to yourselves and say maybe we  don't want to do this and if there's a lawyer here that wants to jump up and hit me over the head  go ahead but that's the instruction from a judge so please this is ripping people apart don't do  that please please I don't know how to say it any better please thank you thank you honorable  Kelly pits next up is Mee

n mallum the topic list hi everybody um my name is mar mallum I  live at 536 State Street in Portsmouth and um I just want to say a few things and I'm going  to read it because I'm not a public speaker and I get nervous okay one I am speaking from my  heart from The Human Side most likely not legal because two weeks ago for the very first time I  spoke with Mr huitt and his wife Liza and the IT their Devastation was real I saw it I could feel  it and that night I could not sleep I don't get invo

lved too much with politics in Portsmouth um  because that's just not my forte but I couldn't sleep that night because they expressed how they  are feeling what it's done to their family and they couldn't understand everything well I've  been here listening to the all this legal jogon for two uh for two nights now and um it seems so  overwhelming um but the devastation was real two I want to applaud attorney Sullivan tonight and  the cheer Mr chaen it was so nice to hear that they both spoke so

highly of Mr huitt they both  spoke of his knowledge and his understanding and his dedication they spoke of his abilities and  also um his background it was just so nice to hear some nice words he they also said he was a  hard worker that he did his homework and he did more than what he was asked that's a good person  that's someone that works hard that's someone that cares about the city and is trying to do a good  job maybe he made some mistakes I guess this is apparent but you know sometimes

you have to kind  of dig deep three I have not heard any CI any other city counselor or any other City attorney  say one kind word to Mr huitt throughout these whole proceedings shame on you all I just think  they could have said you know Mr you it you know I I I do say that the mayor did say thank you for  sitting here tonight that was kind but I didn't hear Too Much kindness number three Mr huitt is a  private citizen who volunteers his time he's not an attorney um do you have to take a law co

urse  before applying to be on the um uh the board of um planning board I wouldn't be able to do that  who knows the difference between the word Quorum and meeting the poor H you had him there trying  to answer those questions he's not an attorney he's a private citizen that's trying to do his  job four I've been on many boards throughout my career yes the person that speaks out usually is  black bald that's probably not a legal term or not politically correct I don't know but because  of his kn

ow because that person on the board because of his knowledge exceeds other members  of the board sometimes it it doesn't pay off that person is just black balls it happened to me one  one more thing five I want to applaud any citizen who brings um Force information about contaminated  water and six it takes courage of any board member to move away from the pack it takes courage  thank you so much thank you Marine next is Duncan mcel good good evening my name name it's Duncan  mcallum live at 536

State Street uh what I have to say here tonight is basically going to  be a continuation of what I said last week uh during last Monday city council meeting  uh picking things up where I left off uh you all may recall that during that meeting I made  the point uh that when we think of malfeasant uh we normally think of things like corruption  dishonesty self-dealing errors in judgment honest mistakes disagreements with others those are not  malfeasant I ran through a few examples of other thing

s that are not mal feance disagreeing  with the opin opinion of the planning board director is not mal feance disagreeing with  the opinion of the planning board chairman is not malfeasance disagreeing with the opinion of  the city manager is not uh malale feasance and even disagreeing with the opinion of the legal  department itself is not malfeasance especially when that opinion is wrong on that subject I see  that in the written submissions the city the City attorney accuses Mr hwit of having

violated the  rule of Winslow versus town of town of holder us uh it just so happens that I am well familiar  with that particular case I've cited that case multiple times in the land use board appeals that  I've taken over the years uh and uh all I can say is I guess the City attorney and I must have  different copies of that opinion because my copy certainly doesn't say that the things that her  copy apparently does the City attorney is also absolutely wrong in saying that the uh Mr buwit  uh

acted in properly by going outside the record she has correctly stated the juror standard for  courtroom trials jury trials in court but in land use board proceedings it's a little bit different  in land use board proceedings you always have to go outside the record of some extent I served  on the zoning Board of adjustment for three years and just like uh my friend Mr Lee I made a  point of always going out and personally viewing the property the properties were the subjects of  the petitions

because there is s if you want to understand the petition if you want to understand  the issues if you want to understand what you're trying to do uh there is no substitute for  actually going out and viewing the property itself color pictures don't even come close to  accomplishing that they just don't capture the same character secondly the New Hampshire Supreme  Court has specifically said uh that you can that land use board uh members can consider their own  familiarity with the property its

location and its setting uh and consider their own personal  knowledge of the surrounding conditions uh as a landur board member you're not supposed to be  blind deaf and dumb and you're not supposed to be oblivious to your surroundings and the conditions  in your community for those of you in this room who are lawyers uh the case which says that is  Vana versus stwn of Bedford 111 New Hampshire 105 1971 uh as always I always have a lot more  that I'd like to say but I would respect the three m

inute rule uh thank you very much thank you  Duncan next [Applause] up Rick bead on topic of support good evening Rick bead 1395 is Street  being mayor it's difficult to find people to volunteer the actions tonight before you if you  remove will actually raise that to a completely different par level discouraging members of boards  of any kind of boards and sharing information is deterred I seem these days there isn't one of you  other than probably Kelly Barnaby that knows a William glad Hill w

ho served diligently under  Mr Block's father being one who actually was a representative on the plane board and he also  served on the HDC and he shared his information between both boards and he went out above and  beyond any other person to get information never questioned they valued his information just  like you would value Mr Hewitt's information it would never be discouraged we no longer have  that position because that was such a job that it's almost impossible to find somebody like  th

at again and I wish we could have that but we should be encouraging the boards to talk to one  another con Blac I talked to your father with that when we had to make the appointment he could  not find a person they soul to ask that type of representation to be able to have function on  two boards two very very big responsible boards and he went above and beyond God Rest his soul  he would be discouraged tonight if we go and we vote to remove a board member the way that we  have please I urge you

do the right thing do not discourage it is extremely difficult to get people  to volunteer for these boards and their value and their time away from their families just like  you do sometimes they do a little bit more than what we do as counselors and as mayor thank you  very much thank you Rick next up uh Elizabeth bradder good evening Elizabeth Brad a property owner of  159 McDon Street I know Jim huitt personally as well as his wife they live next to us for about  10 years he's a real rules

guy and has a lot of integrity and he can be a nuisance when you live  in next door to him because he notices everything my husband is not a rules guy and kind of likes  to hedge on everything so that's my upfront thing anybody who knows my husband knows it's true  one of the questions that keeps coming up in regarding information provided by Mr huitt is the  question is did he provide new information that was not in public record not ordering discussed  by the various Bo boards not readily avai

lable to the general public and not in his knowledge base  what was the reason for providing set information are City board members allowed to ask questions  of Staff directly under the old rules how can a staff member understand the difference between  a board member or a private citizen asking a question when it says a citizen's request on the  top of your form how how are boards supposed to learn anything about what has happened at another  board meeting if those minutes are not shared with t

he other boards should any should everyone  who works for the city or is a volunteer use AI programs to change the tone of their emails  to ensure the intention of their email is clear the big question is whose responsibility is it  to add something to the public record because it was shared with board members is that the  responsibility of the planning director the board chairperson the city attorney take minute take  a few minutes to review all the names listed on all the various emails sent w

ho were cced and who  were directly contacted many people read the five emails in question one was before he was sworn  into the planning board and one was definitely as a private citizen Mr Harvey's comments made  that very clear that was a personal thing and yet one of them not one of these emails was added  to the public record during two years why not Mr Hur was never asked to accuse himself due to these  emails why not take the time to really remember that it is state law that decides what

the City  Rules can be sometimes even City attorneys forget the city rules and state laws they know the  requirement of the right to no law emails were sent to boards those must be added to the public  record does their knowledge of the right to no law and the lack of action constitute malfeasance on  their part per the Cornell Law School definition malfeasance is an intentional conduct that is  wrongful or unlawful especially by officials and public employees thank you thank you pleas  uh that

concludes the public comment we now move yep certainly um did you stand  and and swear uh okay um Kelly uh will have to swear him in sure let me find my she one moment and when we're done we'll  start the timer just need to find my sheet here I'm going to this is be the last public  uh speaker is that anybody else have a change of heart there it is is we're going to okay  because this is the last swearing in of the evening okay okay do you state your name Justin  Richardson solemly swear that th

e testimony you are about to give will be the truth the whole  truth and nothing but the truth upon the pains and penalties of perjury I do okay and your  name again Justin Justin Richardson Richardson thank you I live at 586 uh Woodbury Avenue um  I've been there since uh 2006 uh before that I worked in Portsmouth but I lived in Newington  um I was on the uh planning board there for many years chair of the Conservation Commission  for seven years been on the Sewer Commission uh various other bo

ards uh zoning board um I'm also  Municipal lawyer I've represented about seven or eight towns on planning issues help them rewrite  their zoning ordinances deal with controversial projects um I I got to meet uh Mr hwit and and  come to know him a little bit I don't know him that well uh but I was so impressed with him  I worked on the sound barriers issue many of you are familiar with um Woodberry Avenue traffic  issues I reached out to him about a DOT question at one point um my my um impressi

on of him was  what a nice person he is and how lucky we are to have someone like that who cares about the city  and and that's what you have to do I mean you we can all disagree on issues but if you're working  for the planning board or as a volunteer you're somebody that cares um so what does malens mean  and I I was really shocked because of what I what little I knew to find out that he'd been accused  of that um and I thought about it it's not a term that's defined but I think the prior spea

ker got  it right and I actually looked on Google's Ai and it says it is typically an intentional wrongdoing  the legislature knows how to say illegal violates the law knows how to say negligence errors  all of those things but they said Mal feance because I think what they wanted was when we get  to this extreme point there should be somebody who acted in a way that was wrong and knew that  they were doing the wrong thing but did it anyways I I just you've heard the evidence I  I I haven't hear

d all of it I I came to this hearing late but from what little I know I  can't even begin to believe that that Mr hwit could be guilty of that um he he cares about  Portsmouth and wants it to be the best place and and we've heard a lot of accusations made  here I believe the same thing about you folks I I know maybe six of you not not not all  of you but from what I've heard and what I understand and what I've seen in these meetings  I believe you have the ability and I'm confident that you'll y

ou'll reach the same conclusion  that I did that Mr hwit didn't intentionally do anything wrong thank you very much for for  your time and hearing my comments thank you justtin okay now to dig through the pile of papers for the we are now on to the final statements  uh by Council can we have a break before oh yeah probably it's 10 almost 10 o'clock  all right we're going to take 10-minute recess uh welcome back uh we have uh final statements  by Council before uh city council deliberations and t

he vote and finding a fact and action  um uh attorney eglon uh the floor is yours sir thank you Mr Mayor members of the council  again my name is Jeremy egleton I represent Jim huitt I'm from the law firm of or and Reno uh  you've heard the evidence in the matter and I definitely now want to talk about the law but  before I do I just want to apologize uh for my part if at times I've sounded a little indignant  or frustrated or aggressive in the way I've argued this case I feel this one very pers

onally I uh  grew up in this state I think New Hampshire is a pretty awesome place to live I lived for a Time on  Marcy Street in Portsmouth it was an awesome city to live in and so I feel it personally what the  city government is doing to Jim huitt right now I don't think it's right I do not think that what  is happening tonight is right it is not Justice and so if that bleeds into my my emotion about  this issue then I apologize Mr huitt expressed to me uh just before the hearing started last

night  how uh this process has awakened him to the notion that uh criminal defendants are awfully lonely  when they're out there um and having the eye of the government focused on you and alleging that  you've committed Mal Seas or a crime is a very lonely place to be and it's given him substantial  sympathy for those who are accused of crimes even justly so I don't know if you've had a chance to  read the memo that I asked the city to circulate on Friday I hope you have um but I would ask  you

to consider the following points of Law and fact that are further elaborated in it  first New Hampshire law allows the removal of a land use board member for three things  and only three things inefficiency neglect of Duty and malfeasance that language is  not unique to New Hampshire it's common in federal law and in other states and it's  it's not new language it's old language this is language that comes out of the 19th century  and it's the language that legislator all all over our system us

e to protect certain  offices from political pressure unlike the Secretary of State for the United States  for example who serves at the pleasure of the president and can be removed by the president  at any time for any reason a land use board member in New Hampshire can only be removed  for those three things and according to our Supreme Court those three things are the only  things that can justify removal further when a legislature articulates three specific reasons  like that it means those

things and only those things it does not mean a broader for cause  how to remove is implied by those three items and you have heard and obviously you can read  that the juror standard is not listed anywhere amongst those reasons the so-called jur jur  standard is found nowhere in the removal statute 6731 the jurer standard is found in the  disqualification statute RSA 6734 so a member who has a personal interest in an issue  or who cannot be indifferent to the outcome of the matter may be subjec

t to disqualification  but even then it's up to the member at the end of the today no one can compel an appointed land  use board member to disqualify himself just as I could not compel you those of you whom I asked to  disqualify yourselves because I believe that you have conflicts of interest in this case you  made that determination yourselves and said I can fairly and impartially judge this issue so  councilor cook with respect to your question on the question of the motion for rehearing and

how  uh Jim huitt had expressed a feeling about that particular project in advance no disqualification  was required if Mr huitt believed that he was capable of indifferently hearing the evidence in  that case and rendering a decision just as the mayor does in this case so disqualification is  not required and if disqualification needed to occur the remedy for a disgruntled applicant who's  unsatisfied with a particular vote by a particular board is that the dissatisfied applicant can ask  a co

urt to void the decision that was made by the person on the board if he proves that that  member violated the juror standard uh it's happened in the Winslow case that was cited  by attorney Duncan but but it's pretty rare and uh the applicant has to bring it to the  attention of the court and the applicant who was UN satisfied with the result can invoke the  disqualification standard it is not something that can be relied on in the context of removal they  are separate creatures and you must und

erstand that in this case none of that ever happened  here no one ever asked Mr huitt to recuse himself no one voted for him to recuse himself  no decisions had to be overturned because of his failure to recuse himself and I will definitely  talk about this in a minute nothing that he did Justified recusal and if nothing Mr huitt did  required his disqualification then it is a a gross misapplication of the law to think that  those incidents require removal removal as I said is is only permissibl

e for those three things  inefficiency neglect of Duty and malfeasance the city isn't even trying to argue the first two as  you saw Mr huitt was almost always in attendance and he paid very close attention to the issues  before him so the only thing left for the city to hang its hat on is malens I shouldn't need to say  this at this point but here it is sending emails asking for documents and information to be part  of the public record for a planning board decision is not malfant seeking docum

ents you know to  exist which you think should be considered by the planning board is not Malin reminding an  applicant of something you told them in a public session so that their application stands a better  chance of approval is not Malin communicating before you are a member of the planning board is  not malens seeking a developer's compliance as a private citizen affected by a decision made before  you were a member of the planning board is not Malin what is Malin taking a bribe stealing mo

ney  trading your vote for private gain that's malens nothing here Rises to that level and goodness I  hope you can see that now the city's attorneys are trying to expand malens to fit any conduct  that they think is unusual or unorthodox or not in compliance with the city's regulations and it's  interesting to me as I listened to the testimony especially from Mr Sullivan um who referred to  Common Sense Common Sense standard that you're supposed to abide by uh he said there's no  law governing

these issues this common sense and so the city has created a system that is  candidly more stringent than what New Hampshire Law requires the planning department and the legal  department forms recommendations about how to vote on issues tells the planning board what evidence  it can and cannot consider and the effect is that the board operates as a rubber stamp in many  cases uh and in service to that framework the juror standard and the right to know act are  employed to Keep information uh ke

ep to to keep counselors in line in essence now I you know it's  it's not my specific area of law but I I think the city has the power to create rules like that most  likely and impose those rules on its system its planning system can probably do that but what  you can't do as a city is then use a violation of those contrived standards those standards  that the city prefers to have which are more stringent than New Hampshire law as a basis for  removal of a member because all that is doing is su

bverting the intention of the legislature with  respect to 6 7313 the legislature very clearly does not want cities and towns erecting policy  architecture that simply allows them to remove member because they don't like what the member  did with respect to how they operate just isn't required so I submit to you that if there is  malfeasance in evidence in this case it is all on the side of a city government that is hellbent  on destroying the reputation of a distinguished professional engineer

who has served this  town with dedication there are two Supreme Courts court cases that I believe bear on this  issue and control it I've referred to them in my papers the first is Williams versus Dover 130  New Hampshire 527 that is the only case in which a planning board member was ever uh the removal  of a planning board member ever made it to the New Hampshire Supreme Court and in that case uh  to give you a little bit of background the the member and this was in Dover was an employee he  wa

s on the planning board he was also an employee of the Elliot Rose company and as an employee  of the Elliot Rose company without identifying himself as a board member just as Mr huitt did not  identify himself as a board member but with the knowledge on the part of all the city officials  that he was a planning board member of course Mr Williams reached out to the city officials  regarding construction of a driveway on behalf of the Elliot Rose company and was informed that  a number of permits

were required and the company proceeded to build that driveway without the  permits and then again Mr Williams on behalf of the company contacted City officials about a  proposed Greenhouse that the city said needed a construction permit which would require site plan  review and much as Mr hu had did in this case Mr Williams argued that the greenhouse project didn't  require site review before a permit would issue like Mr huitt he never referred to his position  on the planning board in his Com

munications with any City staffer but as you uh City's attorneys  have argued everyone knows everyone knew that Mr Williams was a planning board member so wasn't  he leveraging his authority his reputation his his office in favor of in that case his employer  what the city council removed him for malfeasance and the Superior Court upheld that decision  and the Supreme Court said no merely being on the planning board does not mean that  you are acting in that capacity when you speak with City Pla

nning staff that's what the  Supreme Court said about those issues the actual quote is that nothing in the record before us  supports the conclusion that Williams actions were directly related or connected to his  performance of his duties as a planning board member absent such a relationship we conclude that  it was error to order his removal from office for Malin we do not imply that the legislature could  not restrict the conduct of a public officer in Williams position by barring him from de

alings  with other officers even in a private capacity in which His official position might be thought  to provide an advantage we only hold that such dealings do not fall within the scope of malfant  under the existing statute the statute hasn't changed it's the same case in fact Mr hitt's Case  is even less egregious than what Mr Williams did because Mr Williams was trying to get something  to happen that hadn't already been ordered by the planning board which is the case here so two  of the a

lleged incidents Advanced by City Hall fall within the Williams ruling the first one  is incident number one the the December email in 2021 Mr hwit communicated to people in the  community before he was a board member about a project on Reigns Avenue he called it a monster  and guess what he's an American citizen and can express that opinion it was before he was a  planning board member that that is evidence that you can simply ignore it is not malfant  under the Williams case incident four Mr H

ugh had advocated for himself in relation to 710  Middle Road a project he that had been decided in the summer of 2021 long before he was a member  he wanted accountability as an abutter he wanted to make sure the owner adhered to the conditions  imposed by the planning board that was his right in doing so his actions were not directly related  to or connected with his performance as a planning board member in the electronic communications  supplied by the city Mr hwit declared himself a citizen

on page one at no point did he assert  his status as a board member just as Mr Williams did not Mr Williams agreed he had no power as  an individual Mr Sullivan excuse me agreed that he had no power as an individual board member to  order the planning staff to do anything and when the matter did come up in front of the planning  board my client recused himself from that vote not because of the letters he received from the city  or any overstepping that was alleged but because he had an interest

in the case and under the  juror standard he had to recuse himself in good faith so that case disposes of incident four and  I add that there was no testimony in this case from Mr Hayes um if Mr Hayes had thought that Mr  huitt was acting as a planning board member or he was getting pressure than I assume he would  have been on the stand testifying to that but he was not here and in fact if you look at the  electronic communications and there were only electronic communications between Mr Hayes

and Mr  hwit um Mr Hayes treats him like a citizen and he says go get yourself an account everybody  knew that he was acting on his own behalf and not as a planning board member the hypo the  violation that is suggested there is entirely hypothetical third the next case that we need to  consider is Andrews versus karge lighting project I've got that one here too it was decided by our  Supreme Court on August 31st 2023 it's what we call in the law a slip opinion which means that  there are no ne

w facts or legal permutations that required the Supreme Court to issue a published  opinion it's not for that reason precedential however the reason we pay attention to this kind  of case is that the Supreme Court has determined that all of the stuff the facts that the law  the issues that came up in that case it's all decided by existing New Hampshire law we don't  need any new or novel considerations here and so we do pay attention to that case in this  case because that case was a disqualific

ation case and in that case what happened was city of  Conway North Conway uh had created an ordinance that was essentially anti-air BNB ordinance and  the lighting District cited certain owners for violating the ordinance that required uh  residential owners in other words if you were going to be renting your house out you  had to live there the zba upheld the decision and cited uh and the cited owners appealed  arguing that one of the zba members had made inappropriate Communications outside t

he record  with people opposed to the cited owners including the member's own son the record showed that the  member had Lively discussions via email with other board members and third parties about the appeal  including about quote challenges facing the karge lighting Precinct the Supreme Court rejected the  argument that these communications created any impression of bias because the member did not  expressly communicate his position on any issue then pending before the board that's what happe

ned  here in none of Mr hitt's Communications is there any actual assertion by him of what he thinks  about the case they are simply statements into the void really as you all clarified in direct  questioning nobody ever responded to any of these emails the Supreme Court's decision on that is  consistent with reams of law on this issue around the country the bias that is alleged must  be actual it must show prejudgment not just a predeliction towards a certain point of view  it can't be a hypoth

etical potential bias or an abstraction something that might happen we can't  say well the Conservation Commission could have been biased by that it must be actual actionable  to disqualify let alone to remove and based on that standard none of Mr hitt's alleged outside  the record Communications showed any bias nowhere in these communications does Mr hwit say how he  intends to vote on any issue no one ever responds Mr huitt is being smeared with a charge of  malfeasance based on an abstraction

and that's not the law in Andrews the parties also argued that  the board members relying on information outside the record to inform his decision contributed to  the fundamental unfairness of the zba's decision the Supreme Court rejected that argument too and  this is where the city's planning rules really do diverge from New Hampshire law the Supreme Court  cited long-standing case law including the case cited by Mr Duncan and uh Briggs versus the town  of Sandwich and the Deets case which sa

id that zba members May base their conclusions on their own  knowledge experience and observations as well as their Common Sense furthermore the people bothered  by that decision have to show that the side information amounted to fundamental unfairness  so as to constitute reversible error so we go back again to the remedy if someone thinks that a  counselor or a land use board member was biased in advance of the decision then they can bring that  to court and try and prove that but they have to

show that there was fundamental unfairness nothing  about his Communications create fundamental unfairness for the applicant it is absur ABD to  suggest otherwise not only did no one who received those Communications react but they were either  requests for information or information presented to demonstrate why Mr hu had himself had such  a reaction at a particular board meeting or in the case of the TAC Communications in December  they were Communications that had already been made to the app

licant in July so you have to ask  yourself gosh these folks Mr Sullivan Mr chelman are talking about this very rigid abstract rule  your mandate is much broader than that was it fundamentally unfair did it have a fundamentally  unfair impact on the result if it had any one of those applicants could have appealed the matter  nobody did nobody asked him to recuse himself nobody voted to recuse him none of this happened  we are here based on an abstraction that is not the law and the Andrews case

as a reminder was a  disqualification case not a removal case taking those standards into account nothing Mr huitt  did would give rise to disqualification let alone removal now regarding exhibit number two Mr huitt  made a request of the planning department for Environmental Studies relating to the application  in his View and suggested to the Conservation Commission that in the future they always try to  keep in mind portsmouth's self-identified standard as an Eco Community he didn't State any

position  on a pending application he didn't demand a different result from the Conservation Commission  on the pending case he did not indicate how he was going to rule he was aware of the environmental  information about this project based on his own knowledge experience and observations and his  common sense about projects built in or near Wetland areas and ultimately the matter never even  came to the planning board because the developer had a matter removed for reasons unrelated to Jim  hw

it even according to council and gut check does asking for good environmental study information  meet your personal sense of what constitutes Malin is it fundamentally unfair for a planning  board member to seek environmental information about a project in a wetland area setting aside  whether the planning board has jurisdiction over it or whether the city's attorney's office have  said hey look that's off limits for this thing is it fundamentally unfair that's your mandate  to consider and I ho

pe I hope the answer is of course not regarding exhibit number three the  application was for additional parking in the West End yard site that had been approved in 2019  Mr huitt asked the planning department if video links to the planning board's prior hearings all  public record could be added to the packet for the upcoming hearing he did exactly what they  said he should do the planning department said that was unnecessary because it was all public  record and he was free to circulate those

links to other members they gave him permission so he  did so he was aware that these properties had been before the board before his own knowledge and  experience and his common sense and suggested that listening to those meetings would be helpful for  board members in considering the application and he was told by planning staff that'd be okay  under Andrews this is all valid conduct and a valid basis upon which to consider a decision  he did nothing wrong in exhibit three number three and as

to the question of of it's just a  word on RSA 91 A2 we've talked about what the law is Mr Laughlin I think was accurate um the  form that was circulated Council for the city obviously has a different view of this but what  this does is it gives you a little flowchart for how to consider electronic communications  and whether they constitute a meeting you can stop right here at are there sequential  Communications involving in the aggregate a quorum of the body not one of his Communications  in

which he copied the planning board and all its members or the conservation committee or the  TAC or anyone else produced a response and the answer is no no violation no violation of RSA  91a so even if he had violated 91a the remedy would be to undo the decision if indeed the  violation affected the decision but he didn't the application regarding exhibit 3 we just  talked about so we've addressed incidents one incidents two incidents three and incident  four and now we turn to five and six rega

rding incident five not only did Mr hwit know about  the cont contamination on the Banfield Road site from his own prior knowledge and experience  the entire matter was extensively discussed during the plan board meeting if you read  the minutes at exhibit I you will see that the board debated and discussed contamination  the allocation of responsibility for cleanup the planning Department's own recommendation that  responsibility for site cleanup be a condition of approval for the site plan the

board recognized  that the contamination was a serious threat to human health that the board's jurisdiction reached  to remedial measures including capping and after the vote was over Mr hwit being the sole vote  against the issue because he felt the application was incomplete without conditions relating to  responsibility for cleanup he circulated some publicly available information about the site  the contamination in the lawsuit and explained to his fellow board members this is why I was  so

upset last week no decision was pending he had already voted he' already voted against it  the fact at issue were both part of his prior knowledge and heavily discussed during the hearing  the disqualification statute expressly addresses this situation there is an exemption under the  disqualification statute for facts that one learns in the context of one's duties it says reasons  for a disqualification do not include exemption from Service as a juror or knowledge of the facts  involved gained

in the performance of the members official duties all of those facts came from  his official duties these are not disqualifying facts and knowledge it's black letter law the  city's reaction Mr chelan's reaction Journey Mor's reaction it's over the top it's not the city  attorney's office that determines what information is relevant to the board's consideration it is the  board that's democracy we put people in office to make these determinations the City attorney  can make recommendations sure

but the board at the end of the day decides what's relevant  the board might be wrong if the board relies on evidence that a developer later uh proves  was not Germaine to the issue or should not have been considered maybe that decision gets  reversed but it's the board's decision citizen appointees not professional staff have to make  those determinations with all due respect to the hard work that the city's uh staff members do on a  daily basis here this remains a government of the people to

call Mr hitt's efforts to bring  attention to the serious issue of environmental contamination that he believed the board had the  power and authority and the duty to address is not malens lastly exhibit number six in July 2023  the applicant at 3 581 Lafayette Road met with the planning board for a preliminary consultation  it's a great function of the statute it allows a developer to come before the planning board  and put their chips on the table and say Here's what we'd like to do what shoul

d we be thinking  about so that they can spend their time and money productively right and not waste time concocting  a plan that they don't know whether the planning board has you know is going to uh approve or not  and so at that meeting Mr huitt and Mr chelman both identified a serious issue their improvements  were on somebody else's land and they informed the developer that they would have to get that  taken care of whether that's an easement some agreement acquiring the land whatever the 

case might be restructuring the parking lot they have to address that before they can even  get their application to the planning board it's not a question of bias it's a question of is the  application facially complete for consideration they said you got to fix that I also said uh we  would like more information about the parking situation we want a study we said that in July  so around comes that same application now being considered by the TAC and because it's public  information Mr huitt re

viewed the application that was going before attack and he said they  haven't fixed any of this stuff can you do remind them that they need to deal with this stuff  before they get to the planning board that's what he asked for seems pretty reasonable to me he  wasn't asking them to impose new conditions or concocting conditions out of his brain that he  wanted them to comply with he was saying please bring to the meeting the following things so  that we can talk about it that is absolutely 100%

in spirit of what the pre-consultation  process is intended to accomplish because why would the applicant show up with the same plan  if the planning board can't even accept it as it is totally reasonable communication AC about  facts and knowledge acquired in the context of his job so to summarize none of these incidents  are malfant under New Hampshire law the city is pushing into Uncharted Territory in its effort  to smear Mr huitt with Malin that's false I will add it's defamatory it's defa

matory per se what's  going on in this room is not Justice it's it's not how local government should operate I request  respectfully that you deny the motion to remove Mr hwit from the planning board and you permit him to  complete his term term as a planning board member anything short of that result will require us to  she seek judicial review attorney fees and costs and damages and I am very convinced based on the  law as I've articulated tonight that we're in the right on this one I hope we

don't have to go there  I implore you as many articulate citizens have already done to do the right thing here thank  you very much thank you attorney Elon attorney moral so clearly we strongly disagree on  the law for this Council to apply to the facts of this matter attorney egleton  has presented an impassioned argument of a tortured interpretation of the removal  statute the juror standard and the right to no law in my memorandum and in um Communications  with the council in this matter I ha

ve referenced a definition of malfeasance that is  cited by the New Hampshire Supreme Court that is the ultimate Authority of law in the state they cited it in the Williams versus Dober case they said malens they went  to a specific definitions for malens it doesn't require some awful thing it doesn't require a crime it doesn't  require bribery theft or some other felony the definition used by the en Hampshire  Supreme Court is a broad umbrella of categories of types of Acts that could constitut

e malus it's  not an exclusive list it's not intended to be an exclusive list many acts could constitute  acts which ought not to be done that is the langage language from the New Hampshire  Supreme Court many acts could constitute wrongful conduct that affects interrupts or  interferes with the performance of official duties many acts could constitute misuse of office  so the use of malfeasance in that statute the New Hampshire Supreme Court has looked at in one of  their cases and provided a d

efinition for legal Scholars for litigants coming forward that is  includes those three phrases acts which ought not to be done wrongful conduct that affects  interrupts or interferes with the performance of official duties or misuse use of office this  is a general broad umbrella it doesn't say it can't be a violation of the juror standard  a violation of the juror standard is an act which ought not to be done a violation of  the Quasi judicial standard being fair and impartial member of a land

use board is an act  which ought not to be done and it certainly is wrongful conduct that affects interrupts or  interferes with the performance of official duties so that's our first major disagreement in  this proceeding what is Mal feens and you can find definitions of malfeasant in multiple dictionaries  multiple references but what's important in New Hampshire is what the New Hampshire Supreme Court  tells us uses that's the only definition that matters the intent of this proceeding is  th

e protection of the process guaranteed to property owners in our city and property  owners have a right to know the rules and regulations controlling the use of their  property the purpose of this proceeding is to ensure that owners are provided with due  process because the court the New Hampshire Supreme Court has said repeatedly that  is the purpose behind the Quasi judicial standard in your role as a planning board  member as any land use board member you have an obligation to conduct yourse

lf consistent with  a judge or a jury to be fair and impartial to the people that come before you that provides due  part process excuse me to the applicants who are appearing in front of you and those applicants  are people citizens property owners in this city this proceeding is about the  proper roles of our luse board members and the roles of our public  officials and how we honor the right to no law and the Constitutional  protections that the Public's business will be conducted in public a

nd  yes to ensure the public trust in that process the next major disagreement we  have is attorney egon's reading of the applicable provision of the right to no law  in 91a defining a meeting and looking at the guidelines of what should be done what  ought not to be done under the right to no law as pointed out by a number of you in  this conversation and the deliberations that we've had here there is a provision that  talks about contemporaneous Communications even if they're electronically do

ne through  electronic communication such as email that are for the purpose of discussing or deciding  a matter of business that might come before the board that or means something again  going to the authority here the New Hampshire Supreme Court and anytime they  interpret statutory language they look at the plain meaning of every word they  will not add words that don't exist they do not take words out that are there  and they use the plain meaning or means or so we're going to argue a lot ab

out  potentially whether a meeting takes place when there is a sequential Communication  in emails amongst the Quorum of a public body what I can tell you is in looking at the  New Hampshire Municipal Association guidelines then aamp attorney general's memorandum on  right to know and in a court case from the Superior Court decided in 2015 they all say  email use should be carefully limited to avoid any inadvertent meeting simultaneous emails  sent to a quorum of a public body discussing or prop

osing action or announcing how one  will vote would come constitute an improper meeting the court in this case in Carrol  County Porter versus sandwich that was decided in 2015 a superior court order  talked about oneway communication from one board member does constitute a  meeting even though no discussion among the board members took place  it was enough to create an illegal meeting the court went on to say the key  to contemporaneous communication is the ability to communicate contemporaneou

sly  very helpful to use the same word in a definition but not whether it actually  occurred but the ability to communicate contemporaneously now perhaps there are  a number of of disputes we could have in regards to whether one email not responded to  constitutes a meeting that misses the point entirely the concern has been and what you  heard from attorney Sullivan what you heard from Mr chelman is the concern is the danger what  the New Hampshire attorney general's memo says you should avoid

any inadvertent meeting that  could be created when you send out an email to a quum of other members inadvertently people  can reply all and all of a sudden you have a contemporaneous discussion you should avoid  this Mr Hugh was told over and over and over again to avoid this to stop doing this because  created the risk of a meeting an illegal meeting because it creates the impression that you  may have bias you may have prejudged a matter because it creates that risk that you no longer  appear

indifferent violating the juror standard violating the Quasi judicial standard that you  are sworn to uphold as a member of the land use board the law requires you to make findings  the fact the proposed findings and rulings of law that Mr hwit committed malfeasance in office  the question is if this Council finds that the ACT set forth in the Char charge in the charging  document that you have as a course of conduct so several events that occurred over the course of  his two years in office if

that illustrates that Mr hwit committed any acts which ought not to  be done any acts which substantially affect his ability to perform his official  duties going back to the definition of maluses if he committed any wrongful  conduct that affects interrupts or interferes with the performance of  official duties if he misused his office then he in fact has committed maluses the charging document takes these actions and all of the corrective actions  that were attempted this is not one instance

all of our boards and commissions are  made up of volunteers everybody understands that everybody gives everybody a second chance third  chance fourth chance but when you get to the fifth and the sixth chance there has to be some  acknowledgment that what you're doing is wrong and you're not going to do it again and that you're  not going to get from Mr chelman didn't get it tonight what are you risking you're risking  other litigation you're risking litigation from your land use applicants you'

re risking  litigation from people who want to make a claim that there's some violation of the right  to no law going on that isn't being corrected that's known and isn't being corrected so  let's just go through these exhibits real quick for you because you're going to have to go  through that charging document I'm aware of how late it is and I'm sorry but we have different  views of what all of these actions mean and I think it's only fair to hear the city's view  on this as well as well as yo

u heard from Mr hwit it's true that in exhibit one we're  talking about um communication uh from Mr hwit that occurred prior to him being put  on the board so should you not consider that no you sh still need to consider that and  why should you still consider this as part of the course of conduct it's because there are  very strong views set out in that email that he sent to a number of appellants in a litigation  in a land used litigation of which he had been one very strong views not just abo

ut that  particular project but any project around the Northville Pond any project within the  wetlands buffer and that is what attorney Sullivan said who what you're not even you're  not on the board yet but you're going to have projects around the north male Pond  you're going to have projects that involve these issues that you've stated  very strong opinions about you need to be careful because you're now taking  a role on the planning board that puts you in a completely different set of  req

uirements legal standards and obligations in an exhibit two have a whole set of emails  back and forth with Mr huitt requesting from staff information regarding a New Hampshire  Department of Environmental Services Dees permit status for several projects proposed for what  the north Mill ponds that would be coming before the planning board 31 Reigns and 203 Maplewood  Avenue in fact this request for the rehearing on these projects was on the agenda as we talk  tonight for the January 27th 2022 p

lanning board meeting the first meeting that Mr hwit sat on as  planning board member and he voted to have the rehearing and prior to that meeting he asked  for copies of any written correspondence emails telephone conversations summary memos meeting  minutes regarding the Department of Environmental Services application not an application  in front of the planning department but an application from a third party he also asked  for environmental site characterization studies and he asked for wat

er quality sampling  studies he sent this on February 13th this Sunday and asked for a reply by the 16th at noon  that's because he wanted him for the 17th which was a planning board meeting in which they  were scheduled to have a rehearing on that project but the re-hearing didn't occur  for legal reasons due to litigation but clear the action was taken as an action of  a planning board member to gather evidence for a planning board meeting outside  of his common knowledge outside of the record

he was known by the planning staff  as a planning board member of course he is you know this is not that big a city that the  city staff doesn't know who's on there land use boards and commissions he was advised  again this is you shouldn't be doing this because it looks like maybe you're bias looks  like maybe you have prejudged things not only did he send an email to staff but he sent an  email to the in the Quorum of the Conservation Commission and how did we know that because  the person on

the Conservation Commission had a moment saying oh my God  this is an email to a quorum this shouldn't happen I'm referring it  back to the planning department and to Legal so the planning department Peter britz and  the City Attorney at the time Robert Sullivan advise Mr hwit he shouldn't be directing an  Advisory Board on how to act because you appear not to be indifferent you appear that you are  prejudging things and you're trying to achieve an outcome behind the scenes without the light  o

f day without a public hearing it shouldn't happen and then in exhibit three we have the  request to the planning director asking for docu ments for the approval of the Weston Yards  Project from both 2019 and 2021 to be added to the planning board packet now maybe there was  a confusion about what Miss zent meant when she said we will provide that to the board but she  clearly clarified that later in her emails to Mr hu saying I meant I would the planning department  will submit this this is a

conversation as we heard heard from Mr chelman that was occurred  many times in the planning board if you need documents submitted to the planning department  or if you want information from the planning department go through the chair why is that to  avoid any of these misimpressions to avoid any potential problems to avoid the appearance of  not being indifferent and then an exhibit for have Mr huitt taking substantial action um with  a member of our planning staff suggesting and I know this h

as been debated factually so it's  for you to resolve the facts but Mr chelman says in the emails to Mr Hayes Mr huitt was  suggesting that the compliance officer impose additional requirements on this project that  we were not in the planning board decision and it's a project that he had previously been  a litigant in and had a substantial interest in he says I didn't identify myself as a planning  board member so it's not an official action really he's directing a member of the planning  staff

in a city very small where the planning staff knows exactly who's on the planning  board he should know he really should know that he should have said if he was acting  outside of the bounds of planning board he should have identified his actions  as such and made it clear I'm not I'm not coming here to put any pressure on you  or using my position in my office from the planning board I'm here as a citizen this  is a personal matter I'm looking for this information he didn't do that and then ag

ain in October and November of  2003 exhibit 5 the Banfield Road Mr hu well knows that after the decision  of a planning board there is an appeal process not only an appeal process to the superior  court but there's also the potential for a rehearing that was like the first thing he did  as a member of the planning board was he voted to have a rehearing he knows that that could  happen within that 30-day period and despite that he sent an email to a quorum of the planning  board every planning b

oard member and he added documents not in the record he added documents  from the federal court on order on a motion to dismiss that wasn't brought in front of the  planning board at their meeting when they made their decision he brought in a link to a  number of news articles those weren't in the record of the planning board during their  decision and what is the risk here that if there is a rehearing or there is an appeal  the planing board members all of them now are potentially tainted by th

at outside information that was provided  to them outside of the public record did the whole board respond  no because the board has been told and they understand that they're not  supposed to engage in these types of contemporaneous communications with a quum  of a board outside of a public meeting but the problem is Mr hu's not taking the advice to  avoid this because it could create a meeting an illegal meeting and he's not taking the  advice that this appears that you have bias about a parti

cular project  and you're not being fair and so finally in December and January he sent two  emails to the entire site plan technical advisory committee Tac is what we call it um who works  as an advisory committee to the planning board made up of experts in their field who are members  of our staff who know where to look who know how to read a plan who know know what concerns  are who've already heard concerns from the board in their meeting about parking and about  encroachments an encroachmen

t on State Property potentially there was no need for this  communication this communication again was to an Advisory Board to the entire  board all of the staff it was done outside of the public record where the appal the  applicant rather um had no ability to know this well would it be a public record  if a public records was request yes yes but that's missing the Mark again the Mark  is that this is creating the impression that he's not indifferent this is creating an  impression that he's tr

ying to accomplish something outside the normal channels outside  of his role as a planning board member he says I wasn't directing them to do anything I was  just suggesting just suggesting that they review and then a week later wait you didn't  hear me I'm going to suggest again that you review I've addressed the issues um at  length in my memorandum of law about the Andrews case so I'm not going to get  into that um in any detail at this point other than you can see that's again an  area of l

aw where we have a very strong disagreement I believe that we have presented  sufficient evidence for you to make a finding that Mr huitt has acted with bias that he has  not been indifferent that he has not upheld his obligation as a planning board member to sit in  a quasi judicial capacity and to apply the juror standard there are proposed findings of fact  that would include all of the information that's in the charge as a course of conduct and all the  evidence that you've heard and all the

documents that have been presented to you for you to make a  finding and make motion so we're asking that you find that he has in fact committed malfeasance  and that you also remove him from the planning board thank you thank you City attorney morl now  on to the uh city council deliberations um are there questions that we have either for Peter  or for which other Council or councelor Bagley sorry no questions or comment also I'll wait  to questions uh Council uh thank you honor um I just have

a couple questions for attorney Lin  um am I correct that the purpose of the removal statute is not to punish land use members but  to protect to preserve the Integrity of planning board decisions and the applicants who appear  before it I think that's fair to say um am I also correct to Define malens as doing of an act  which ought not to be done that's what the court indicated in the Williams case all right thank you  are there limits to what not ought to be done turn off one think is there a

bar based on the case  law I it's probably on going to be on a caseby Case basis I mean there's some standard I don't  know how you would describe it uh but um I think it's going to require a looking at the facts in  each case can I um a lack of indifference rise uh to not uh being not or falling under what ought  not to be done I think it can and uh for this reason um we don't for plenty bu members we don't  require any particular educational background or um testing or anything that we requir

e one thing  and that they be indifferent and um um if I think the indiffer is rather than use the word bias I  think the word Indi is the is a better test and that's what the statute talks about that the  and when they talk about the jeur questions can the person be indifferent and that's what  uh I think um has to be looked at and um if the person U does not appear to be indifferent  then that I think that can rise to to malit is um and in terms of how that's  judged I think when when uh attor

ney when Josh Denton was here  we were talking about his situation um that um whether an appearance of impropriety  exists is determined under an objective standards standard uh would a reasonable person not the  judge himself question the impartiality of the Court the test for the appearance of impartiality  is an objective one that is whether an objective dis disinterested Observer fully informed of  the fact would entertain significant doubt that Justice would be done in the case and that's 

why I suspect that the the um city attorney's office repeatedly raised the concerns about the  appearance of impropriety can um research done outside of the the public record and I guess I  have some questions on why things are not in the public record but um can that re resarch alone  uh create a appearance of a lack of indifference can you be dispassionate and indifferent  and look at a matter outside of the public record I think you can I think that a a planning  board member uh can look at g

o buy the property look at the property look at have and um and  bring some information in we you know at some point it stops looking like um using your own  judgment and raises questions about impropriety I think that's the what the concern of the staff  was been and we've had some disagreement from the Council on on whether or not a what constitutes  a meeting you've opined um that the mere Act of sending uh a meeting or sending an email  does does not constitute a meeting would you agree that

it represents the danger of  a potential meeting I think that's what the was was indicated especially by um chairman  of the planning board that it it it creates the danger that's why the the re request by  staff always is don't do it uh not not that in and of itself it's creates a violation but  it creates a danger of um of responses that um create the appearance of not indifference is  that danger not the the the holding of a meeting uh because it looks like um intelligent legal  folks look a

t that differently whether or not a email creates a meeting but in your opinion  does the potential danger of a meeting rise to the level of malfeasance does that under  the statute or the under the um Supreme Court definition of having ought not what doing no  that's going to kill me each time I try to say it doing what you not ought to do I guess  um does that um because it could do something that is illegal if other people act is that in  your opinion rise to the level of malfeasance I think

it's really going to be a question of um  maybe one incident two incidents at some point I think the there's a real question as to whether  that does I think a CH that can become MFE at some point there any other questions of the City  attorney or the and just to clarify uh I know it was brought up um in public comment uh two  things that I should note here um the council uh didn't rise for uh swearing a um uh the oath  uh City sitting here we' have taken an oath of office and we are bound by uh

those rules uh  second there was a a comment that we met in non-public with the city attorney in this case  City attorney is sitting not on the de the dis uh and we have attorney WLAN uh who is capable and  is representing us as the city council as separate from the city legal department wanted to make that  note something else that pupp should be clarified uh that the non-public session was advertised  on several places where the agenda usually is advertised and on the on the one that was post

ed  someplace I Susan can probably clarify that but it was posted several times in a one location it was  not posted one and uh the afternoon of the meeting um uh attorney Marl contacted um attorney egleton  and myself and said there been a mistake um it should have been on everything in an overabundance  of caution um uh there will not be a um nonpublic there would not be a public session before the  non-public and that was it was a um a mixup on the on the way the PO the notice got posted not 

on the nefarious scheme to hide anything can I just fill that out just a little bit more is that  the um the right to no law says specifically it's not a meeting a public meeting that needs to be  noticed if it's consultation with Council as long as no action occurs and that was the purpose  of your meeting prior to the beginning of the hearing yesterday thank you there any more any  other questions any other statements statement uh actually I've got one question in that statement  okay um atto

rney llan um so some of the discussion tonight was about the dur standard and and it was  brought up uh several times that most recently by just you yourself that you can go and visit  the property is it that is a kind of a special exception that was created with planning board or  landuse boards in particular that going to visit a property that is under discussion is is kind  of like a carve out from that juror standard the um it's a case that where the court said well  the statute says that pl

anning BL members can go and examine the property and bring their own  knowledge and it talks about actually visiting the property okay thank you and I guess um I'll  I'll make some comments first this is a this has been a not a great uh two days my opinion for the  city I do want to point out um you know this the three things that we're looking at inefficiency  neglect of Duty or malfeasance in office uh the first two um Mr hwit could never be accused of  in my opinion um he does a tremendous j

ob of fact finding uh sending emails full of I get him  on PTS I get him as a council member and he's a tremendous researcher I think it speaks highly  to his character the number of people that uh not only spoke here tonight but I've been in the  audience uh for two very long nights um so so I think um I wish that we weren't here tonight for  this reason uh but we are uh the cat's kind of out of the barn in that respect but I do think it's  worth highlighting um you know the the tremendous amou

nt of support that Mr hu huitt has garnered  I don't know that there are many individuals in the city that would have a room full at 11:15 at  night for the second night in a row so I think that bears mentioning um however uh we have been  here we have looked at a number of things we have very conflicting opinions from the two attorneys  um the malfeasant to me uh is a much scarier word before it was defined as ought not to be done um  there does seem to be uh the city has a number of rules and

regulations that we have to file as a  council or we have to follow on a land use board um when we step up to serve to volunteer and  whether or not those rules are correct or or legal or allowed in New Hampshire I can't speak  intelligently too because I'm not an attorney so I have to rely on the city attorneys I have  to rely on the city staff and uh based on how they execute themselves everywhere else I have to  assume that those are all true and correct and if those are all true and correct

um the series  of events that have happened um the repeated warnings of what you ought not to to do um and  at least in the beginning it seemed uh that Mr hwit acknowledged that maybe um you know there  was a coming up to speed period and and that's challenging for anyone um uh as he attested  earlier he wasn't looking to be on the planning board he was he was kind of appointed I not short  notice maybe isn't the right word but you know I think he started his his November not thinking he  was go

ing to be on a planning board and in then early January uh or late January I guess he was  so you know trying to come up to speed is a very challenging thing um but we also had uh Mr Harvey  speak tonight and and he was the only one uh that kind of represented the the people the applicants  the abuts out there who don't normally get to speak uh you're given a a great responsibility  when you're on a land use board because you're telling people what they can and cannot do with  their property and

many of the people that come before those boards uh they're intimidated they  don't like to speak in public it's it's a daunting task um they have to have absolute confidence that  they're getting a fair shake and an unbiased or indifferent um board before them and I think  there were some actions that we we learned about over these last two days that would shake  some of that confidence um in at least some of our citizens and uh that is what I'm struggling  with here right now and I guess I wo

uld like to hear from the rest of the council Council Maro um  thank you mayor um I'd like to start by trying to clear up I think there was some misconception  about the changes to the planning B planning board rules and regulations um we did not make the  change about all questions so the planning board members can't ask staff questions we made a change  because staff can sometimes be very overwhelmed with cases and um applications that they're and  parties that they're working with and if we h

ave five people from a board all emailing people with  what might be the same question we thought it was very you know streamlined to be able to have those  questions all go to the chair and then the chair can synthesize those and make sure they get to  the right person to be more efficient and that was what the attempt in the changing of the rules and  I think that was misconstrued um as this process has gone on I agree with my fellow counselor  baggley on just about everything thing that he sa

id just now this evening I have struggled  with all of this I can actually I'm an attorney I understand both sides I could argue both sides  because that's what you know we're taught to do is to argue and to argue our case I agree  that the totalit of the actions are extremely um extremely inappropriate I don't believe  that they should of occurred do they raise to the level of malfeasance I'm not totally  convinced of that as well um I do believe the ACT should not have happened I don't believe

  there was any sort of malicious intent and that's where having served on the board for the  last two years I don't believe that Mr H had any malicious intent I do believe his intent was good  it was just misapplied and the attempts to try to correct that have clearly not been successful um  I would hope I don't know I still don't know how I'm going to vote I honestly don't I'm still  struggling with what direction to go in how do we protect the applicants that come before  planning boards and

how do we protect the land use members that are on our boards as well and  I think that's a really thin line that we have to carefully consider I'll look forward to  hearing from others I think oh I was just going to pose one question that I then go to  the assistant mayor one question that has come up for me uh repeatedly in uh these um these  two days um and I do appreciate uh certainly Mr hwit being here uh attorney iglon the City  attorney everyone here um I would Echo the uh the spirit of c

ouncelor Bagley in saying that uh  being a part of your government it means showing up to your government uh and so appreciate uh the  folks that have been here the thing that that I'm not quite sure of is given the the whole reason  that we're we're here is the the belief that the that decisions or meetings or  potential meetings are occurring outside of the public record and I think  that we can universally state that if there was such actions occurring that if people  were deciding things out

of the public view especially especially when it comes to  your property rights that that would be universally admonished that things that occur when  you go before a land use board your expectation is to face that Lan use board and have every uh  every opportunity to challenge the questions that might occur and so when Mr chelman was  saying these are all fine things to have in the public record record I wish they they were in  the public record I looked at the documents and I looked at the em

ail and the email that that that  was different in the two exhibits was the exhibit on uh for Mr Egon uh where Mr huitt uh responded  back to um I think it was City Attorney suvin at the time asking how do I move these to the public  record I don't know if our system right now uh can incorporate uh the level of uh inquiry uh  for a public body um but I it's difficult when a question of legal staff goes unanswered from a  standpoint of how do I raise concerns that have occurred in the public how

do I get them into  the public record and it's a Nuance discuss discussion sure but I don't have any record of  that discussion occurring um at all I understand now that we have uh new rules with the planning  board uh that were maybe difficult to uh figure out how to put in um but part of that goes uh that  process goes to the chair of the planning board to be a part of the public record when asked Mr hwit  answered in the affirmative that his actions going forward would follow uh those rules a

nd so it's  difficult for me when we're deciding the Crux of the issue the absolute most important thing we've  said it on everybody said it but the public trust and we're talking about Mr hwit somebody that  has dedicated a large portion of his life uh to public service and also just working in the State  uh Municipal service but we're talking about the public trust that things that are decided that  we're not having this conversation back there in nonpublic we're deciding and figuring this  ou

t on our own in public is a vitally important part of a representative democracy a democracy  that is you know a government that's run by the people that is a hard thing to to equate or for  me to wrap my head around that it that it rises uh to malfeasance even if the the danger occurs  that a public or a meeting could be um you know I haven't seen any record presented that Mr huitt  responded to any other email that potentially uh created a quorum I I understand that the  potential risk exists

but I also trust that the training has been done enough at least in  this case that the examples that we found there is not a single instance of a reply to all of  the emails that that Mr hwit uh has stated so as part of my deliberations I'm trying to figure  out you know the most important part of this um the the second point I think the thing that  Rose um you know high on the record and this is probably because I'm on the council um the the  the I think it's on exhibit four around um the um t

he the requesting of information um that is hard  I think and maybe I take a personal acception to this because you know um I think people will treat  you differently because of position regardless of what you do uh around that um you know not to  make life of a a serious situation but on a lighter note I felt that I was robbed uh recently  at a uh Valentine's Day dance I thought you know potentially my position as mayor kept me out  of the running for a finalist uh in that and my daughter could

not understand that at all  she danced her butt off and yet we didn't make you know five finalists out there there was only  like eight people dancing um so I carry a special weight with the abuse of any power any office that  could occur uh and I don't know you know it was as I sat there listening to maybe if he had mentioned  that he was a planning board member and he wants to be treated as a citizen that could have been  construed the opposite way um it could have been like hey just so you k

now I'm a planning board  member but I want to be viewed as a citizen in this case so it's difficult for me to say that it  would have been an abusive power um to to mention that and I feel like the time to raise that  um would have been by the planning director to directly reach out and say for any you know we  will ask you to do this separately but it seemed like there was engagement on that topic now there  was um public uh comment to the role of uh what Mr hwit has sat on and and and created

um different  Adu law he has I believe and I could be mistaken the right from a regulatory standpoint to make  any decisions that he wants based on Adu law that would be viewed as Prejudice or not Prejudice to  a neighbor it's difficult to uh cut that out what he has to do is then apply any regulation in  an impartial uh in an impartial manner if it reaches the planning board and I don't believe um  that he had an opinion um on regulation Rises to that level of um malfeasance either specificall

y  because he was acting in a regulatory manner uh in that way um I should have passed the gavl  realizing that now um but I will waiting for your question yeah it was not yeah I guess it was  more it was uh comments that I've been thinking about so far thank youor thank you honor um well  I I believe that compelling arguments were made on both sides um I find it difficult that we  were here uh for the second night but that we were here at this hearing um I was not at the  January 16th meeting b

ut I would have been the third vote to not move this forward to hearing  uh I believe that these are issues I believe that um Mr huitt did did Place somewhat Outside The  Unofficial rules uh as you know quoted by former mayor Beckstead um he wouldn't play by the rules  I believe to some degree um unfortunately Mr huitt um you were somewhat set up to fail in  in that aspect um I'm happy to see that the planning board has adopted new rules  that have outlined things very clearly uh I believe that

if there were I believe that  the concerns are valid um but I believe that there are other ways that this could have  been handled um it is not uncommon in the state of New Hampshire for a land use board  member to be censured by um that board uh it is not uncommon um in the state for there  to be a ethics violation um brought forward against a land use member um I think there  could have been other ways to handle this um again I do believe that there were  multiple circumstances that were playe

d outside of the what I will deem blurry lines  of of the rules that have long been followed um rules that as were noted tonight that most  board members follow um my line of questioning is of asking you Mr huitt of why um do you  think that nobody replied to your emails for me it's a clear observation that it's a Well  documented rule that you don't do what you did does that rise to removal I'm not  sure but again I think that this process should this should have been handled in  a different pr

ocess in a different forum um and in a yeah I think that's where my  opinion stands at the moment thank you assistant mayor uh going down line councelor  Taber and councelor cook thanks your honor um we've heard a lot of testimony and uh read a  lot of documents I think my findings are first of all I don't think that Jim HTT uh was doing  anything he thought was wrong I think he was doing what he thought was in the best interests  of the city um and he was doing it zealously in many cases doing

a lot of homework um I first  off I don't think you can have one kind of meeting even if it's not a meeting where you're  informing members of your own board behind the scenes uh and then you can have another kind of  meeting where the board debates in Open session in public uh I think it's particularly wrong in  my opinion to be sending emails to quorums of bodies with information that's not in the  public record but actually uh goes beyond what a consensus of the planning board had been  for e

xample the request to uh have a parking data study uh for the Lafayette Road property the  planning board had already asked and agreed as a stipulation that the applicant was going to  bring back comparables from his other project projects the issue had been dealt with and then  there's this um behind the scenes email to the TAC um saying I want more and I don't think that's  fair to the applicant I think that's uh something that should not happen and going forward um  the uh right to know quest

ions um it's burned into all of our foreheads as counselors that you  don't email to a quorum um the City attorney says there is Supreme Court law that a one-way email  does to a quorum does constitute a meeting but that's disputed it's not even it's disputed  by Peter Lin who who wrote the municipal law textbooks councelor tabber can I just say it was  a superior court Superior Court sorry ruling it open for debate until it gets to the Supreme  Court thank you for the correction we agree that i

t's on debate so um I think those are wrong  actions uh that cannot continue however um when it comes to removal um I think this is an honest  citizen doing what he believes is right um making uh doing it in ways that should not happen and  are not and do cause problems for our applicants but I don't think there's a strong enough case  for removal quite honestly um and I'm not sure removal is the right thing one of the wisdoms in  our government is that not one person is trusted with adjudicatin

g land use decisions nine people  are trusted with it and Mr hwi's one of nine and he's put many pieces of information before the  planning board and the planning board has often disagree with them and that's why you have nine  people um the Conservation Commission received his um admonishment to uh get all the environmental  uh permits um and the status of those cases um they didn't uh follow his instructions so our  governments uh uses Collective decisions uh to be the most fair and I don't th

ink that Mr hu even  I think he can continue on because of the strength of nine people making a decision um and uh I also  placed a lot of weight on chairman shellman's testimony because I think of him as Switzerland  between the city and um and the planning board and he also has great experience um my concern  with his testimony and my finding a fact is that in many cases U Mr huitt uh let's take the haze  incident um was um going beyond what the planning board had asked of that applicant or re

quired of  that applicant adding additional requirements and then going directly to a city staffer um to get  that um he's totally conflicted in doing that because of his dispute and litigation um but  and and should not have done that but it's the imposing of additional conditions beyond what the  planning board had ruled that to me is um saying I'm going to my opinion is more important than  the decision we all made together it's almost subverting the decision of the planning board and  that c

an't happen um that should not happen and I think that's wrong action um but as I say to me  there's a lot of dispute over the law over removal attorney eggleston's cited some cases um I think  our use of collective decision making um allows us to have somebody like Jim who often runs against  the mainstream and often brings out facts that make the final decision a better decision um so I  would not support removal thank councilor tabber councelor cook thank you honor um I wanted to  start my co

mments by um first addressing Mr huitt um and uh the respect I have for you Mr huitt and  your knowledge uh what you bring to the table as a planning board uh member is impressive um you're  extremely smart you do a lot of research and you share that research widely um with members of Many  Bodies In The City including the city council and so uh I would I want to be clear that we're not  here tonight to judge um your qualifications for the position you're in or um how smart and capable  you are

because you are very smart and extremely capable um but I also think it's important tonight  to remember that we're also not here to judge how our um processes generally work how our planning  board the tech the Conservation Commission how the staff handles information um there there have  been a lot of criticisms and and we a often hear those um about how things are done um on our  boards but those decisions and how those things and processes work are really not decisions for  planning board me

mbers or zoning board members or anyone who's sitting on a quasi judicial board  because their actions there when they're sitting are really to act in a quasi judicial nature um  act under the jury standard um they're not there to judge whether or not they think the staff  are providing with them with the information they want or providing other boards with the  information that they think those other boards need um that's really a political question not a  qua you judicial question and um land

use board members are not granted the political authority  to make those determinations about how the city handles um itself um however they are asked to  make decisions that are Quasi judicial in nature um under that juror standard and I think that  it was really clear tonight what that standard is um from not only 6734 50081 12 the Windslow  versus holderness cas case it's really clear what the Quasi judicial standard is and what the  juror standard is it's also clear in Williams what malfeasa

nce is and um these are you know I  just quoted two Su um Supreme Court cases in New Hampshire so that's the final Arbiter of the law  um I think it's also important though to ALS to note that the city when we're hearing from the  city attorney um we have heard repeatedly that this wasn't one violation it wasn't two violations  it was repeated violations um I thought it was in incredibly important that before Mr hwit even sat  on the planning board in December of 2021 that our legal counsel at t

he time our City attorney um  Sullivan um let him know very clearly what the juror standard is and what the quaji judici  IAL standard is in an email um pointing out that he had already um created possible um bias  or um we want to say uh lack of indifference by email he sent in December related to a case um  that ultimately did come back to the planning board and came back to the planning board when he  was sitting on the planning board so he already received the warning about that case and the

  comments that he made not showing that he was not impartial and not indifferent and yet he still  chose to not recuse himself even though he knew the standard and I've already said I think that Mr  huitt is a very smart person I don't think that he didn't understand what he was told and he vot he  still voted on that case to rehear the case and he was the deciding vote it was a 54 vote so  I think it's important to note here the city didn't sanction him for that the city didn't even  comment o

n that they'd already commented on that knowledge but the city instead over the course  of the next several years reminded him again and again of that standard and the standard he should  follow um reminded him in on in February reminded him again um on that standard um in October  2023 December 27th 2023 January 4th so there was clearly a pattern here and the real question  that I have before me is did he understand the rules did he understand the juror's standard did  he understand the require

ments of a quad judicial board member and I think the answer to that is yes  Mr hu is a very smart person I think he's highly capable of understanding what those rules are for  our planning board members and making decisions is that enough to rise to the standard of removal is  another question well I think it it does meet the standard of what ought not to be done in Williams  which is Malin um but note that in New Hampshire removal occurs very very rarely and this is the  first time the council

um in this case is hearing um about um this situation uh as a whole um and so  we have never we haven't issued a formal warning or a censure um to Mr hwit and I think that's  important to note as well um so I have questions around whether or not um there's an alternative um  um if there's an alternative to provide a formal final warning or censure and a guarantee that  none of these actions would occur again um so I have those questions around this case um but I  also have questions about fairn

ess and due process um whether or not the applicants at one Reigns  31 Reigns 203 Maplewood 581 Lafayette Road and 375 Banfield Road were given true d process in  their hearings because information was introduced outside of the public hearing process and if those  applicants did not receive that information and did not know that a communication was occurring  outside of those meetings how were they to respond to that information that was before  the Conservation Commission or the TAC or even the

planning board um and so that's ultimately  the problem we are dealing with is we have to be fair on our land use boards and we have to be  able to provide due process to everyone involved and act completely impartially in those processes  and when we introduce outside information we're not doing so so um uh I do believe that uh Mr  huitt understood um the violations that um he was committing I do not believe that there  was ill intent by any means I think he cares passionately about this commu

nity um and I do  question whether or not there is another way forward uh councelor Lombardi and then  councelor yes thank you mayor um and uh I'm not someone that is very long- winded um  so you'll be happy about that but um I uh I think that one of the most important things in  front of us um is that of uh being clear and open and um to the public I think that what  the whole idea of right to know of judicial standards um have to do with the ability of the  public to see the process of their g

overnment um and um I agree that if any goes on behind  uh any decisions are made behind closed doors that's a real problem if uh um I think that  Mr huitt I agree with uh councelor cook that I think Mr hu you're a very intelligent man I  I see that um I see I I believe me I have not read all of your emails um I I admit to that  because you sent a lot um but what I have read um they're you're very articulate you're um  well studied and um and I appreciate that uh I think the problem is is one of

process and  well there's a couple problems one a process that um you want to get information to other  people and uh but somehow you're missing a process that has been established by the city I  I'm not sure that is that the intent of that is malicious um I um but I also have to appreciate  the gentleman who came um and spoke here about um his feelings about uh the incident on his border  on I for I'm sorry I forget your name but um and uh I think that the efforts of the City attorney  and Mr

chelman to give you corrective advice um has been very generous uh at the same token I  I feel like a a m just well a removal process is maybe going too far um and it I guess what  I would love to do is to find a way to have uh you Mr hwit and our attorneys and your chairman  really fig fure out a way to um have a corrective relationship in terms of uh avoiding these  issues that have come up um I don't know what that is and I don't know if it's possible  and I don't know if you are open to that

um because from what I've heard in these hearings  is that um people have told you and encouraged you and asked you to behave in a different way  and uh what I've heard is that you've ignored that um and as councelor cook said um you're  intelligent enough to understand the impact of that I'm still up in the air where I'm going  with a vote uh but um I just I wish there were another way and I guess I will be convinced  one way or another um that that's possible or that um maybe or that removal

is the only answer  Council thank you Council bie thank you honor um that was longer than you and I do want to thank  Mr huitt I consider you a neighbor I consider you a fellow member of Portsmouth City of Portsmouth  um fellow public servant um an Engaged member of our community um and I truly appreciate that  and I have never once questioned um whether or not you're an intelligent man or not I I  know that you are um but like I said before uh it's very unfortunate that we've come to  this situ

ation tonight um I I do believe it's possible to make a mistake um I believe it's  possible to make a couple mistakes um but then once those mistakes have been addressed and that  behavior continues continues and continues and it continues to be addressed and there is no  change in Behavior I consider that wrongful conduct um and under the facts we've been given  here last night and tonight um I believe that malfeasance has been committed that being  said I I I want to protect our preserve the I

ntegrity of our land use boards um I do think  removal is a bit much I don't I don't I hope we can find a solution that is is not removal  um but I do want to ask the uh attorney Lan if we found Malin has occurred and then there is  no removal of the member of the planning board would that put the city in in sort in sort  of a uh bad position as far as it's land use boards I I I presume that um well we all know that the only limit limit on what  is alleged in any lawsuit is the imagination of th

e lawyer bringing it and um so it's going to be  um it's going to be out there saying well there's evidence of um not proper conduct um and um I  guess if it occurs again uh on some future thing that some future application um that type that  allegation would be made but and it whether it was true in that case um would have to be determined  I there's a uh well you've you've laid out the pattern but um and that's that's why I think the  city staff brought the kept paying attention to this now um

uh how that would play out in the  future I I think is gonna we just don't know I mean I I um you're looking for some alternative  some other way to end this and that's there's going to be risks no matter what you do right  thank you J so it's not a legal opinion um malens uh seems as though it's a um it's a high bar um  I think for the purposes of the discussion um it should result if mfus is found in the removal I  don't know how we could create a situation where we will find in Malin um that

a planning board  member is doing ought not what he'd be done or I'm never going to get it uh doing or doing what  he ought not to do um and then continue to allow that member to serve on the board I um encouraged  by uh different ways to share uh a strong belief that um the process uh needs to work from a uh a  planning department and staff standpoint we've got to figure out there's a lot that goes on in the  city of Portsmouth to then have uh another kind of stream that kind of comes in and t

hat's not to say  that that stream is not important to to to have or that questions aren't being raised that should be  addressed but the people appearing before the land use boards deserve to know what that process is  they need to be able to at the very least no you know you shouldn't have to file a public records  request to get all the information that a member might be considering like that's that that can't  happen we got you know folks that are not lawyer I mean we're I think we've spent

an enormous amount  of time talking about um big developers and that's kind of what this has been put in context to but  like I don't know if everybody remembers myself included just how not scary but overwhelming it  is to go before a land use board it's overwhelming the first time you do it um and it shouldn't be  overwhelming we should make it as easy as possible and we should make it so that the folks that are  going before there know that they're going to have a fair adjudication before tha

t that's the Crux  of why I believe the city brought this is they felt that this was not uh occurring I I think it  is um it's incredibly uh hard to determine that based on the intent and based on you know just  a disagreement from superior court whether or not meetings are occurring outside of of public  record that's at least that disagreement is now clear uh to me I will continue not to reply  all the emails uh because I know that that could create a quorum uh if I do I never send  emails out

to um all the council uh because of that you know um even if there are things that are  not even related to actual business like there's been an invitation to the city of Portsmith I  want to extend that I will ask Joanna to send that um out on behalf so that it's understood  but I digress I can you clarify what Joanna not Joan I would not the assistant mayor I'm talking  about the real May Portsmith join a Deemer uh who sits on the fourth floor here and basically uh  answers most phone calls a

nd and points people in the right direction um I so I I would caution  against us um trying to figure out another soft Landing uh for this outside of figuring out the  facts that are presented I understand that there could be a desire um in the future or through  the planning board to have a firmer discussion around uh outside of outside of um outside of uh  uh malfeasance and removal uh around uh that but for the purposes of of of this um I I guess I I  want to be clear and I'll pass the gavel

for this and I don't even know how this this is the same as  I guess it's Robert rules um for the purposes of this I I can't support uh the decision to remove  for malfeasance um I would like to State a few reasons uh for that um first the thing um I uh I  am uh you know I I know um this has been difficult for you uh Mr hwit and for Liza I appreciate that  as a um as a member of this community and um while that is a important Point uh for me as a human to  consider as an adjudicator uh it's not

something that that factored in but I want to express that  I do appreciate uh you and I understand that this has not been an easy situation for you uh or for  for Liza um it's not been an easy situation uh for myself uh to think about uh the terms of this this  has probably been one of the more difficult things uh that I had and if you ask my wife I've been  the most irritable person uh that and that's a high bar for me um at home and it is something  that is probably the the the most difficult

decision that I've been faced with as a counselor  um as a mayor uh because of all the reasons why it is important the public trust is absolutely  critical that business is done in public is absolutely Paramount to how we do business as a  government of the people for the People by the people that's the that's the standard it cannot  be done outside of this realm now um I I thought attorney egleton made many uh um uh strong points  and we debated a lot um there's one point that I I uh viciously

disagree on and that is that  this is a politically motivated process that is something that when it was raised to me it is  just an anathema to everything that I think that is important up here yes I know that Jim probably  didn't vote for me you know um but I appreciate it every time I saw him on the sidewalk uh uh being  able to support his candidates I think that is the Crux of our government that we can hold differing  opinions uh continue to be nice to one another and continue to take peo

ple at their word that they  are delivering what they believe to be the best interest of the city of Portsmouth we've talked  about extensively the idea of public service and encouraging engagement we will not have that in  Portsmith if we continue to paint everybody as having a political bias in every decision that we  make that cannot occur in the city of Portsmith it happens and I'm more passionate about this because  you know somebody that that enjoys politics I am so frustrated that I don't

even like talking  about politics uh any longer it is something that has occurred on the national level that seeps  in it's not the same one we have you know it's not party systems here in Portsmith but there are  political lines that are drawn that is impossible to get down into the details and make accurate  decisions for the betterment of our community if we think that there is some ulterior motive  so would ask everyone that is en that is really focused on encouraging participation how can

you  Foster that in your dialogue at public comment how can you think of raising above politics of  raising above a perceived bias and come together and say I believe that you are doing as best you  can with the tools that you have I disagree with you I appreciate that you can make a different  decision with me without having uh to firmly throw everything else that that we're that we're trying  to do out with that I believe that Mr HT you were um you were pointed at a somewhat contentious time 

I I call this I recall making many points in the conversation of why you should not be appointed  frankly there were uh a bias I'd never you know I think that everybody should be indifferent I  never heard that from you I heard that from the former mayor that said something along the  lines of you know the only way we're going to really change this is that we have to start  with the makeup of the boards I don't believe that to be true I believe that we have to have  indifferent people people tha

t are passionate about Portsmith that are willing to spend the time  that they are sacrificing to to be here you could spend the time with your uh your your your sons  your wife I could do the same with my daughters and my wife it is difficult at best to to believe  that this is an easy job yours is not an easy job you deal with property rights of people that is a  very difficult position but it's not a political position you will interpret the zoning that's in  front of you we rely on you bring

ing as much to that uh as possible and in the master plan process  we will rely on you from a regulatory perspective that will continue uh it's it's just a point that  I need to underscore that there cannot be bias there cannot be changes of our zoning occurring at  the land use boards they have to occur through a public process the master plan and amendments  all within this chamber that's how we get the zoning that Port Smith deserves and wants that  is why I I I think I've been the most frust

rated I've been is because this has been portrayed as a  political uh a political process when it is in my mind the furthest from a political process this  is you know it's the furthest from a political process and I will um take Mr huitt at his word  that he will follow the rules that are newly established that he will move things through  the chair to be a part of the public record and I would welcome any suggestions as a planning  board member to the Council on how we can improve the process

around that um and I will not vote uh  to find uh Mal feance uh and I will not vote uh to remove we go any other councelor Bagley uh should we make  a motion sure GNA have to sooner or later uh I move that we uh microphone sorry I move that we  conclude the hearing I got a second I'll speak to it second um I I don't I agree with the mayor I  don't I think serious issues have been raised um in the broader context recently by the mayor  and also in this particular case through the last two days uh

but I don't believe that the  council needs to take action at this time um I don't believe that there's a need for Center  I think Mr huitt has uh been through enough already and uh that is why I made the motion so  uh oh I'm sorry I just had a clarifying question you you want to end the hearing with no motion  no motion to so we have two just so we have two motions that were present to us one to find that  there was malfeasance and to act as a removal want to not and then as a result not find

that there  is um uh the ability to remove and those are in the and is that knowing that and it's late  yeah I'm reading Mr egon's proposed motion um so for the record um uh this is uh you know I hope not to do this a second  time to be an expert on this um the city of Portsmouth is charged uh James huitt a member of  the planning board with removal under RSA 673 uh col 13 which reads after public hearing appointed  members and alternative members of an appointed land local land use board may be

removed by  appointing authority upon written findings of efficiency neglect of Duty or me mesin in  office the council has before a first motion asking the council to find that the city has met  its burden of proving that Mr hu has committed mie in office okay so I guess those are the  charging documents my God okay um so um uh attorney lock on can I phone a friend on  this what's going on so how do we end the I don't know if we can simply end the hearing  is that correct I mean we could but u

m can we um where's the motion yor would you like me  to resend and take a second shot at using the language sure why don't you do that all  right I resend my previous motion um second the I move that the council has found that  the city has not met the burden of proof for removal of office of Mr hu huitt for efficiency  neglect of Duty or malfeas in office is there a second is there I'll second and I guess  by the lack of a quick second there maybe that's not the best motion but that's the  bes

t I have in me um I I I don't think we've I think the motion speaks  for itself that's my opinion that malas has not occurred and certainly  inefficiency or neglect of Duty have not occurred okay um Council cook uh thank you your  honor um would it not make sense to vote on the Motions in front of us uh rather than creating  new motions and if the I'm not seeing the motion so what's the just the motion from the the City  attorney yes and then if it does not pass it does not pass okay I think tha

t sends [Music] a  I guess yeah okay I will resend my motion again again somebody else is going to have to take  the third shot so resend you a second thank you okay so um these yeah I okay so that is the  city's requests for finding and ruling proposed motions I mve that is this the one that we're  talking about Council Moro councelor cook okay so I'm just is a value was no yeah I would  think so I don't know the is okay um so if we vote against the following the council find that  the allegati

ons in Charing jent are supported by the evidence presented at the hearing including  the testimony of witness documents submitted the memorandum of law submitted by Council public  comment and the arguments of council Council finds that the city has established that Mr hu  is committed malfant in office pursuant to R6 uh R6 or RSA uh 6 73 Co 13- I that's if that is moved  we can discuss that and either vote for or against it you OPP you find there's not now Fe yes if  that if this is voted down

so I guess uh sorry I'm tired think straight just for clarification  the reason I don't want to move that motion even if we were to vote it down is I think it  sends a stronger message than finding that we didn't find than passing a motion saying that we  didn't find but I may be alone in that opinion that it sends well I think that um I think  it sends the same message if we vote down the malfant are find that they didn't meet the  burden of proof it's the opposite we have one written out the

attorneys I believe agreed on  these motions is this a correct statement yes we discussed the motion I'm I'm fine with the  city's motion okay uh just for clarity though a negative vote means the city did not meet the  burden that's correct yes so the motion before us I will await the motion that I previously  just read and that I will read it again then I await the motion that the council find that  the allegation uh in the charging documents are supported by the evidence presented at the  hear

ing in including the testimony of witnesses and documents submitted the memorandums of  law submitted by Council public comment and the arguments of council Council finds that the  city is established that Mr hwt has committed malfant in office pursuant to RSA 673 uh col  13 section I so moved second okay and so it is clear to vote Yes in the affirmative means that  the city has has made their case for malfeasance and that um you know we would then be it's argued  whether or not we would be boun

d to remove but Mal as the attorney has pointed out creates with  it issues if we find and don't uh do that to find in the negative means that we do not support  that and thus do not entertain the second motion on the floor or in the packet is that clear is  there any more discussion okay I would uh ask uh Kelly to please uh call the vote okay assistant  mayor Kelly no councilor tabber no council cook no council block yes Council baggley  no council Moro no council lardi no mayor McAn no it wait

a motion to  adjourn second all in favor [Applause] I