New Portsmouth Council begins slogging through wastewater, tiptoes up to Open Meetings quagmire
|PCC President Larry Fitzmorris confers with Town Council President Joe Robicheau just before the Council meeting.|
With over 30 residents in the chamber, the newly elected Portsmouth Town Council began their inaugural meeting on an auspicious note — five minutes before the meeting started, PCC President Larry Fitzmorris caucused with Council President Joe Robicheau as he sat on the dais. Anyone not get the picture yet?
And it just got better and better.
President Joe Robicheau established a new tradition of having the Town Clerk, Kathy Viera-Beaudoin, read each and every vote into the record. "The motion passed, unanimously." It may sound like transparancy, but halfway through the meeting, it was already beginning to feel like the new Council drinking game. (With carbonated non-adult beverages, of course; no suggestion or endorsement of excessive consumption is implied, nor should it be inferred.)
The first test was the reappointment of the Town Solicitor, Andre D'Andrea and the Town Prosecutor, Cort Chappel. Dame Judi Staven began to stake out her position as the Tailgunner "just vote no" replacenik by suggesting that it should go out to be advertised. "Chappell and D'Andrea can reapply," she said.
Although D'Andrea had been appointed by the previous Republican Council, it was the Democrats who came to his defense. "This is not a time to be changing players," said Mike Buddemeyer. "There are pressing legal matters ahead of us." Jim Seveney concurred. "Past practice has been to advertise the position only if there was an intention to replace," he said, stressing, "We have some unique challenges facing us." By a vote of 5-2 with Staven and Liz Pedro in the minority, both were rehired.
The Town Clerk read the result of the vote into the record. Take two sips.
Then the Council ground through the necessary liaison reappointments to various boards and committees. By the time they got to the Juvenile Hearing Board, the new "vote announcing" process had already gotten unwieldy. The Town Clerk announced the vote as unanimous, then the Council voted. Any time the Clerk gets the vote wrong, chug one soft drink.
And all that was before the REAL business began.
Sitting on the docket was scheduling interviews for the new Wastewater Management Commission, punted by the prior Council.
"I am not comfortable doing this as this time," said Staven. "I have a million questions." She expressed concern that she was unsure they were following the right course of action. "We may want to change the [wastewater] ordinance, who knows."
If there was any doubt about the Council's intent to delay and generally screw up the wastewater situation further, this should make their plan crystal clear.
PCC apparatchik Kathy Melvin took to the podium to warn the Council,"This is another move that's going to lock you into the situation." Then she raised questions about the qualifications of the applicants. "Thirteen people applied," she said. "We haven't had that many people come to meetings. I only heard of two — one qualified, other moderately qualified."
Let's leave aside for a moment whether Kathy Melvin is qualified to judge who is qualified. Was this laying the groundwork for the PCC bloc to launch preemptory challenges of all the applicants? We'll see. And what's this sudden concern about people who "come to meetings?" Where was this requirement when the PCC was endorsing candidates in the last election?
Despite Dame Judi's objections, the interviews were scheduled for December 13 at 6pm. The vote was 6-1 with Judi Staven opposed. One sip.
The next hour was a full-on grilling of engineer Pio Lombardo and attorney Christopher D'Ovidio, the team representing Portsmouth in the matter of the Department of Environmental Management (DEM) Notice of Violation (NOV), the action in which the town was fined and could be required to install sewers. Let's remember, the previous Council hemmed and hawed on this for two full years, which finally brought the DEM action down on the Town. The new Council has already shown themselves to be capable of the same brave level of churning inaction.
Attorney D'Ovidio provided an update on the recent status confeerence with DEM, where the wastewater management plan, prepared by Lombardo as an alternative to sewers, was rejected, which means that the action moves into the discovery phase in preparation for a full hearing. The process is very much like a civil trial, with these pre-hearing conferences being opportunities for the two sides to attempt to reach agreement, and the DEM rejection of the plan amounted to them declining a settlement offer, according to D'Ovidio. But he remained hopeful, he said, that things could change if the town could present something with more detail.
"We're trying to provide a credible alternative to sewers," he said, showing the binder containing the work done by Lombardo. "At this juncture, they are not interested in considering this plan at this level of detail until there is something more for them to sink their teeth into."
So how did the Council support the team mounting our defense against DEM?
"If they're not going to consider this, why are we moving forward with it," asked Dame Judi.
"In order for us to be able to prevail, we need to have competent evidence that says to the DEM, 'You're wrong," said D'Ovidio. "We have a competent expert who has done a granular examination of every lot. That's why we need to proceed."
"Are we going down a path that's going to fail anyway," Judi continued.
The price of failure, D'Ovidio noted, would be a $60M sewer system.
Lombardo stressed that their work would provide a body of facts that the DEM did not have based on their reliance on a study from 2003. "We're going to provide lot by lot detail," he said. "What we're going to be doing, for all practical purposes, is the 10% design level. And the difference between 10 years ago and now, there are more tools in the toolbox."
Meaty, important questions. What did new Councilor Paul Kesson want to ask?
"What have we spent with you, Mr. D'Ovidio," said Kesson. (He didn't know offhand.)
Liz Pedro had a similar "gotcha" question. "Mr. D'Ovidio,when did you get the DEM file?" When he replied October 12, Pedro pounced. "But we hired you in April!"
"I wasn't retained to look at the file," he replied.
This kind of nitpicking is fine when you're a PCC partisan sniping from the sidelines, but is this really the level of engagement with the core issues we expect from a sitting Town Council?
Then Pedro went after stormwater, citing a memo from DEM. "Over and over, I see stormwater, stormwater, stormwater," she said. "It's a stormwater issue that they're hanging their hat on. why have we not followed through with stormwater ordinance that we already have. Shouldn't we start with the obvious — the tie ins we already know exist."
Lombardo said that the work was in fact proceeding on both tracks, stormwater and individual septic systems analysis, and he pointed out that the two were connected.
"Stormwater is the smoking gun," said Lombardo, "The conduit for malfunctioning septic systems."
But Pedro had a better idea. "Why are we not starting with what we know — storm drains." And, she continued, there was a list of some addresses with suspected connections, and the existing stormwater ordinance gives the Department of Public Works authority in that area. "Why are we not focusing on that."
"We don't believe the issue can be resolved by either one independently," said Lombardo.
Then the PCC bloc got to the nut of their argument.
"We're going to spend a lot of money and find out it's just illicit hookups and animal waste," said Dame Judi.
Town Administrator Bob Driscoll tried a note of rationality. "The problem is that stormwater drains pick up everything that flows into them. The stormwater system may be working perfectly, but will fail because (household) systems are not containing the waste. We can't go to 13 houses and pull a tap and solve our problem. Until we fix the ISDSs, we're not going to have clean stormwater."
Councilor Buddemeyer pointed out the obvious. "We've hired experts to defend us. The longer we wrangle with them, the less they're defending us."
And then...and then... PCC President Larry Fitzmorris himself took to the podium.
"I have a question about the NOV," he said, noting that it contained an allegation of a violation at XX Foo Avenue. Unlike Larry, I'm not going to mention the address; if you want to know, go listen to the tape. "I have received a copy of a letter from homeowner saying that the water running off the lot is from the sump pump. Is there any evidence that DEM sampled water, has town ever sampled water?"
Attorney D'Ovidio replied. "Generally speaking, each and every factual assertion in the NOV we are challenging," he said. "We're making DEM support every fact. Including proof that XX Foo Ave was discharging. Rest assured, as my client, that we're challenging each factual allegation. In addition, we're gathering our own evidence."
But that didn't satisfy the PCC President. "My question was whether the place was sampled or not. Nobody in the town has sampled the water yet. XX Foo Ave is the principal charge, he said. "We should sample the water immediately."
D'Ovidio disagreed. "It's not the principal charge," he said. And then, he went on to put a giant stake through Larry's heart. "Why would we test it? It's their burden of proof. Follow me?"
Larry sat down.
What a rookie mistake. Ordering the Council to collect a piece of evidence that can be demanded during discovery? Boy, I thought the PCC were supposed to be experts with giant brains?
And in one final note, the Council decided to create a "Joint Health Care Review Commission" with the school committee to study health care costs.
"Jonathan Harris has a lot of background in this," said Robicheau, and asked him to speak. People looked around, but Harris had already left.
Resident Andrew Kelly asked the Council if the meetings would be open.
"It's a commission," said Dame Judi. "The majority would be two. It's four people," she said, including participation from the Council and school committee and the two finance directors. She was concerned that if it fell under open meetings that two people couldn't talk.
"In a commission of four, quorum would be three," Town Solicitor D'Andrea pointed out, adding that in a prior Council they had posted meetings for a group of only three.
"I'm not trying to get around the Open Meetings Law," said Staven.
That was the point at which I got up and went to the podium. Robicheau, however, quickly said that the meetings would be posted and called for a vote before I was recognized. Then he asked me if I had a question. Since the question had already been voted on, I declined.
And anyway, I did not have a question. I had an observation: When your PCC bloc runs on "transparancy" and in your first meeting, your vice-president begins a sentence "I'm not trying to get around the Open Meetings Law," you are not, in my opinion, getting off to a very good start.