Concord Ethics Board, Hung Up On Word Definitions, Clears Ward 5 Councilor Of Conflict

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At the meeting, City Manager Tom Aspell explained business owners had been surveyed about the event and that, for many years, street closure decisions had been made by staff, not councilors.

“This was the first item that he brought in 15 years to comment on a street that should be closed,” she claimed.

Brown said Aspell thought councilors should be informed about the event. She also said data and survey information were not included in the report.

Downtown Concord is closed or partially closed for events several times a year — meaning there was no real need for the discussion because of the coffee and cars event. There has been no outreach in the past with downtown residents or businesses for these closures. However, Brown felt it was her due diligence to inquire about the issues even though they were not in her district and had not been done for other closures.

“So, I felt comfortable in voting on this,” Brown said. “There was no conversation about police.”

Brown added, her husband, “rarely” worked details because the family “valued our time together.”

Brown said she regularly recused herself from some items involving the police department except for this incident and one on June 4 concerning the police department budget, where she had to be forced to recuse herself by a vote of the council — an incident Brown did not mention Monday. Board members also did not ask her about it despite it already being in the public sphere.

Brown also said the entire situation of her being accused of a conflict was worthy of more discussion by the council because she questioned whether she should have to recuse herself on every police item or a mention of the word “police” in items. She, however, failed to mention the ordinance was rewritten based on her February 2022 vote for a grant being issued to the city by her employer and she denied she was in conflict. The board also did not question this statement and did not even seem to know, later when discussing it, that the rule was rewritten or why when questioning the definition or use of words.

During her testimony, Brown denied her husband performed police details, even after admitting he did work details — either misspeaking or forgetting to say “typically” or “rarely.” At one point, after speaking about past recusals, Brown said she believed she could vote for the consent item, “Because I knew that he would not benefit from this because he does not do details.”

As Patch reported last week, her husband had earned $1,400 in detail assignments six times in the previous decade, according to city records. No one on the board corrected her misspeaks.

Board members peppered her with questions, primarily focused on her intent.

Steve Shurtleff, a former city councilor, and Jim Rosenberg concentrated some questions on perception and the importance of the public needing to perceive there was no conflict. Shurtleff said while the possibility was nonexistent that her husband would work a detail, the probability could happen and was still there, and he could benefit from it.

Brown challenged the statement and said, maybe, if the event were a coffee and cops event, but details were voluntary.

Shurtleff asked if the perception of unethical behavior by the public was necessary.

Brown spoke again about recusals but added the report came from the code department and did not mention police details, even though they were mentioned in the report. She then stated if the police had authored the report and mentioned details, she would have recused herself. Brown also claimed, during her last campaign, some people accused her of not being able to vote on homeless issues because her husband worked for the police department.

Letters, Comments Defend Brown

Both her husband and an attorney wrote letters in support of the councilor, which were submitted Monday morning.

Sgt. Wade Brown wrote a letter in defense of his wife as “a private citizen” but also to convey “relevant information” about the case his employment. He said police details were voluntary and many officers used them to supplement their incomes. For personal reasons, he had chosen not to work details due to spending most of his time as a detective and to spend time with family.

While he had worked on details in the past, they amounted to “less than one detail per year, out of hundreds of available details.” When he did work details, they tended to be “large-scale events” when the department was short on officers.

“I have not worked any police details since I returned to patrol work in June 2023 and have no plans to do so in the future,” he wrote.

Jason Reimers, an attorney from Keene with BCM Environmental & Land Law PLLC said he reviewed the case against Brown and, as a former assistant attorney general, he did not believe she was in conflict. He said, “Officer Brown does not ordinarily do police details … (and) she knew that (he) would not participate in the event, and, as it turns out, he did not in fact participate in the event,” she was not in conflict.

Reimers also raised the use of the word “would” as the “past simple tense of ‘will’ and although there are other definitions of ‘would,’ none of them are synonymous with ‘could’ or ‘might’,” he wrote. He added, “the phrase ‘would affect’” in the ordinance “should be read to mean that the action of the elected officials will affect her or his family member’s financial interest.” Reimers also raised the issue of “involve” and whether the Concord Police Department and the closure of Main Street “only tangentially affected” Brown, her husband, the department, and the council discussion.

In defense of her husband, Robert Mancini, another Ward 5 resident, also mentioned his detail activity for the department was limited. He said they were voluntary and not a part of an officer’s job description. Mancini said the officer only worked special events when officers were needed.

Mancini said Brown was also on the parking committee, named to the department by former Mayor Jim Bouley, and police were often involved with parking issues. If, he added, it was a conflict for Brown to vote on police issues, Bouley would not have named her to the parking committee and the council would not have approved it.

Deliberations

Like the decision the board would not be an investigatory body, John Sullivan, chairman of the board and an attorney, centered the discussion around intent and the definitions of the words, as Reimers raised in his defense of Brown.

Sullivan said it seemed “completely legitimate” for Brown to pull the item and discuss whether the closure would cut off customers from businesses or residents from parking. He looked at it from two points of view: the individual being in violation based on the financial benefit or the organizational benefit. But he questioned the use of the word “would” vs. “could” in the ordinance itself, suggesting “would” was not “could,” and therefore, the vote was not a violation. As far as a benefit to the organization, Sullivan said, “It gets to how far on the daisy chain you want to go,” wondering if it would be a conflict if police issued more tickets and raised more revenue based on the vote of a councilor changing the rules. He added, “An awful lot of council actions create obligations to enforce.”

Shurtleff said he had “a foot in both camps,” having been a police officer and a councilor. He said the mayor and council should review the code of conduct and make changes.

“We’re not a jury,” Shurtleff said, “this isn’t a criminal matter … proven or not proven … ‘could’ or ‘would’ should be looked at again.”

Shurtleff did not mention or seem to know changes were made two years ago based on a prior allegation against Brown. He suggested looking at what other communities have in their ordinances and materials while adding his grandfather was an alderman. Shurtleff also said the council should not put hurdles in front of any citizen concerned about a perceived conflict, adding the ordinance seemed ambiguous.

Tenley Callaghan, an attorney and board member, agreed with Shurtleff, saying the use of the word “would” was terrible and “problematic.”

Marcia Moran, another member of the board, nodded in agreement.

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Callaghan also noted she found it troubling there was a stand-alone sentence that a person would be in conflict even if there were no financial aspects or connections with the organization. At the same time, she countered on the flip side, interestingly, it was dangerous to limit the examination of what it involves versus where it comes from. Callaghan also worried about the public’s perceptions.

Rosenberg called the current language “very broad” and “somewhat confusing.” He also thought there was no ill intent by Brown, even if the concern existed. The consent item, he said, “does not involve the police department,” and Brown had “clear concern” for the impact on downtown residents.

After discussing their responsibilities, the five members agreed to specific findings to deliver to the Concord City Council and voted unanimously to find Brown innocent of the conflict-of-interest charge.

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