It’s a policy call. There’s nothing in the charter that prevents a member or two members of the council from asking.”

Co-Town Solicitor Joe Larisa, Jr.

Imagine your boss sitting next to you saying, ‘I want you to look at this candidate — may be a good hire. Just advisory, just advisory!’ Are you really going to say no, knowing that your boss could fire you if you don’t do what he says?”

Leonard Katzman, speaking against the resolution

PORTSMOUTH — A proposed two-member town council advisory panel became the focus of a heated 75-minute debate last week, as the town administrator, one of the town’s co-solicitors and several attorneys offered sharply different interpretations of Portsmouth’s charter and the council’s role in hiring department heads.

The debate followed a contentious 5-2 vote ratifying Town Administrator Richard Rainer Jr.’s appointment of Elizabeth Draper as the town’s new finance director, succeeding Kayla Marsden. Council members Mary McDowell and Sharlene Patton opposed the appointment.

The advisory-panel resolution, proposed by McDowell, would have allowed two council members to participate in the interview process for a new finance director. The council ultimately tabled the resolution, also 5-2, but not before the debate exposed a fundamental disagreement over where the council’s authority ends and the town administrator’s begins.

RELATED: Council ratifies manager's appointment of new finance director

Rainer told the council Aug. 11 that the charter does not allow council members to participate in recommending candidates to him, recommending candidates for consideration or interview, or interviewing them.

“It has the power to accept or reject my recommendation only,” Rainer said.

Even though McDowell’s resolution called the proposed panel “advisory,” Rainer said, “it would place council members inside the recruitment, interview and recommendation process. 

He also warned that approving the resolution could set a precedent extending beyond the finance director position. If the council wants to change the system, Rainer said, it should use the charter amendment process.

Rainer also pointed to a 2012 charter amendment that changed the town’s personnel structure. The ballot question told voters that hiring department heads would be performed by the town administrator and ratified by the council.

“The voters approved that … by a margin of 3 to 1,” Rainer said.

Solicitor offers different reading

Co-Town Solicitor Joe Larisa Jr., however, told the council that he reached a different legal conclusion.

“Don’t confuse policy with law,” Larisa said.

Larisa said he had drafted the resolution at McDowell’s request and said it would pass legal muster. “There’s nothing in the charter prohibiting participation,” he said.

Larisa said council members could participate in interviews and ask questions, provided they did not direct the administrator whom to hire. “It’s a policy call. There’s nothing in the charter that prevents a member or two members of the council from asking,” he said.

Larisa also said that some practices had become ingrained in Portsmouth simply because “that’s the way it’s always been.

“We’re going to agree to disagree,” Council President Keith Hamilton told Larisa.

The two legal interpretations set the stage for the public comment that followed.

‘Horror show’

Charles Levesque, an attorney, former state legislator and former council member who spoke remotely, said Rainer’s explanation had been thorough. He also recalled Portsmouth’s previous experience with council participation in hiring.

He and Hamilton “know what a horror show it was when we had council participation,” Levesque said. “The fact was that people in the community automatically saw that the council was influencing it when it came to the administrator recommending somebody.”

John McDaid, a council candidate who has served on two of Portsmouth’s charter review committees, said the charter makes a deliberate distinction between selecting and approving department heads. 

“Selection is the administrator’s job; approval is yours,” McDaid said. “The charter provisions are no accident; it’s precisely why Portsmouth hires competent department heads regardless of politics. The resolution in front of you tonight would erase that line.”

McDaid also warned that the proposed arrangement could make it more difficult for Portsmouth to attract qualified applicants. When qualified applicants see a town where the council can insert its political influence into hiring, he said, “they are going to take the other offer.”

Questions ‘advisory’ label

Leonard Katzman, a former council member and attorney, took particular issue with the argument that the proposed panel would be merely advisory, and focused on the power relationship between the council and town administrator.

“You are the boss of the town administrator,” he said. “The town council can fire the town administrator at any time.”

He then offered a hypothetical: “Imagine your boss sitting next to you saying, ‘I want you to look at this candidate — may be a good hire. Just advisory, just advisory!’ Are you really going to say no, knowing that your boss could fire you if you don’t do what he says?” Katzman asked.

Katzman said he believed Rainer would resist such pressure “because he’s a man of unimpeachable integrity … but this would hurt the overall integrity of the process.”

Also opposing the resolution was State Sen. Linda Ujifusa.

“I was shocked to see this resolution, council person McDowell, because I believe you’ve always said that it’s important for the community to have a voice,” Ujifusa said.

“And we’ve had a charter review committee that had many, many people involved and somehow you are trying to circumvent that with this resolution.”

She then challenged Larisa over the resolution’s citation of Article 305. “The resolution was potentially misleading because you cited article 305 without putting in the title, which in bold in our statute says ‘Non-interference by the council,’” Ujifusa said.

Larisa responded that the title did not determine the meaning of the provision.

No final answer on charter

The discussion on McDowell’s proposed resolution turned out to be a moot point, since Draper’s appointment had already been ratified, but apparently the matter will come up again in the future. The council voted 5-2 to table the proposal for now, with Sondra Blank and Juan Carlos Payero dissenting.

For now, the dispute remains unresolved — leaving Portsmouth with a question that may ultimately have to be answered through a future charter review or, potentially, by the courts.