PORTSMOUTH, New Hampshire — City Manager John Bohenko told the City Council he “would be inclined not to proceed with (an) appeal” of the recent Superior Court decision stating the Coakley Landfill Group is a public body and must follow the state’s Right to Know law.
“But again, we’re part of a group so we need to talk to them,” Bohenko said at Monday’s City Council meeting. “That’s just my feeling and I’ve already let the city attorney know that.”
Bohenko also claimed “there’s some misinformation” concerning the CLG. “During this whole process we’ve released 80 percent of what would have been released under the Right to Know (law),” Bohenko said. His comments come less than a week after Superior Court Judge N. William Delker ruled in favor of a group of Seacoast region lawmakers and former Assistant Mayor Jim Splaine in his 22-page decision.
Delker stated the CLG’s executive committee must hold public meetings from now on and follow all rules of the Right to Know law. He pointed to Portsmouth City Attorney Robert Sullivan’s role as chairman of the CLG’s executive committee and noted he wields two votes in committee matters. He also pointed out the city’s environmental planner Peter Britz serves as the CLG’s “technical expert.”
“Portsmouth alone has spent more than $17 million on the CLG. As noted by virtue of the voting power of the municipal members … Attorney Sullivan and (Britz) have considerable influence on how that public money is spent,” Delker stated. “The decisions of CLG and how it approaches the remediation of the contamination of Coakley landfill have a substantial impact on residents and businesses in the area.”
The suit against the CLG was brought by state Reps. Mindi Messmer, Renny Cushing, Phil Bean, Mike Edgar, Henry Marsh and Splaine. The town of Hampton intervened in the case.
In contrast to Bohenko’s comments about not appealing the decision, Sullivan told the City Council in an email last week “it is likely that there would be a commencement of the appeal process to the New Hampshire Supreme Court.” Bohenko instructed Sullivan to release the email after the city attorney initially told the Portsmouth Herald on Tuesday he did not know if he could.
Sullivan at Monday’s council meeting said the CLG “probably released 99 percent” of the documents that would have been required to be released under the Right to Know law. In March, he said he was releasing 145 boxes of CLG-related documents to the public that were previously stored in various buildings around the city. Two days after, he barred the lawmakers and press from seeing anything in the boxes except for executive committee meeting minutes, which were typically only a few pages long.
Sullivan on Tuesday refused to immediately release any of the documents despite the court order. Requests for the documents would be “referred to the lawyers who are handling the litigation,” Sullivan said in reference to the law firm the CLG hired to represent the group in court.
Cushing on Tuesday said the “CLG still hasn’t complied with the original Right to Know request that we filed last February.”
“We expect now that Judge Delker has ruled in our favor that they will comply,” said Cushing, who encouraged the City Council to “read Judge Delker’s order.” “It’s pretty clear. The CLG is subject to the state Constitution and the Right to Know law. I think it’s irresponsible for the chief executive of the CLG not to comply with a Superior Court order.”
If Sullivan doesn’t, Cushing said, he risks being found “in contempt of court.” Cushing called Bohenko’s comments about not appealing “good news.”
Messmer on Tuesday said the CLG and city of Portsmouth “should accept the ruling and immediately comply with the state Right to Know law. They should encourage the other private parties not to appeal and they have the power to stop an appeal.”
The CLG is made up of municipalities and private groups that used the Superfund cleanup site in Greenland and North Hampton, including companies that transported trash to it. Portsmouth is responsible for 53.6 percent of the CLG remediation costs and together the municipalities are responsible for more than 60 percent.
The landfill accepted waste from 1972 to 1982 and then incinerator waste until 1985. It was capped in 1998. People living near the landfill are concerned contaminants leaching from the site will contaminate their drinking water wells.
Messmer said Sullivan has two votes on any CLG committee decision and the other two members have just one each. “They can’t throw up their hands and say we couldn’t do anything about it because the private parties wanted us to” file an appeal,” she said. “Portsmouth and the other municipalities hold the cards here.”
Messmer said she only had about 90 minutes to look at the CLG documents when the boxes were initially released. Then Sullivan only let her and the other lawmakers see the committee minutes. “We only saw a fraction of the documents we were supposed to,” she said.
“I think there’s going to be a lot more information coming out about the Coakley Landfill Group,” Splaine said.
City Councilor Ned Raynolds defended the CLG’s actions Monday. “Over all the years that the CLG has been in existence and Bob (Sullivan) has been in this role, I think that the city and Attorney Sullivan in particular have always done the right thing. There’s this perception out there that it has been this secret group operating behind closed doors. I think we’ve always been on the right side.”
Several of the lawmakers disputed that Tuesday, pointing to the CLG’s decision to spend about $3.1 million in money meant to remediate the landfill to settle a lawsuit with a contractor the CLG hired. The CLG also hired a lobbyist to fight legislation sponsored by Messmer to compel the CLG to install a pump and treat system at the landfill.
Splaine called Raynolds’ comments “club speak.” “People on the City Council too many times think they’re part of a club and they’re job is to defend the administration,” he said. “What we need is more independent city councilors.”
Splaine said the CLG has not addressed the main issue at the landfill. “The garbage is out there, tons and tons of garbage, much of which is hazardous,” he said. “The chemicals are not magically disappearing.”
Bohenko on Tuesday stressed the city and CLG will comply with the judge’s order. “Whatever the Right to Know requires us to do we’re going to do it,” he said.
Bohenko pointed to Sullivan’s email in which the city attorney said the “immediate effect of this opinion will be to halt any activities of the Coakley Landfill Group because under the Right-to-Know law a meeting requires a convening of a quorum of the group (executive committee) and two of the three executive committee members are out-of-state. Thus, the CLG’s traditional method of meeting by teleconference is no longer available to the group. Therefore, it appears that an immediate return to court will be necessary simply to determine how the group may function going forward.”
On Tuesday, Bohenko repeated he does not favor an appeal and before any documents can be released, the CLG has to schedule a public meeting with all three committee members present in person. “Certainly, the information will be made available,” he stressed. “I think what’s important to understand is the ruling just came.”
Bohenko said the meeting will give the other committee members a chance to share their feelings about an appeal and how the group will operate going forward, including the release of CLG documents. He acknowledged several times the city can block the private parties from filing an appeal.
Bohenko added the city has a commitment to transparency.
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