Sidewalk Shenanigans

Finagling Files

Having written extensively about them, I am all too familiar with housing shenanigans in Portsmouth. But in addition to housing shenanigans, we also have sidewalk shenanigans. Yes, something as pedestrian and prosaic as sidewalks can be shenaniganized. It is as if politically obligated public servants leave no sidewalk marked when it comes to pleasing Portsmouth’s overprivileged and no sidewalk unmarked when it comes to punishing troublemakers. Marking with orange paint is what the City Engineering Dept. does to sidewalks that must be repaired, at the property owner’s expense.

Sidewalks are unique. They are the areas where private and public property overlap. Property owners do not own the sidewalks abutting their property, but they are responsible for keeping those sidewalks in good walking order, free of hazards to pedestrians.

Back in 1928, the framers of the Portsmouth City Charter considered sidewalk repairs important enough to devote a whole section to them. Section 111 of the Charter states that “The Council may by resolution declare that certain specified sidewalks, curbings or gutters shall be constructed or repaired. Upon the passage of such resolution [sic] the City Auditor shall cause written notice of the passage thereof to be served upon the owner, or agent of the owner, of each parcel of land abutting upon such sidewalks, curbings or gutters who may be a resident of the City, in the manner provided by law for the service of summons in civil actions. A copy of the notice, with the time and manner of service endorsed thereon, signed by the person serving it, shall be returned to the office of the City Auditor and there filed and preserved.” In an amendment made in 1975, the Charter (Section 112) further stipulated that sidewalks, curbings and gutters have to be repaired within 30 days. (The provisions of Sect. 111 of the City Charter are repeated in the Codified Ordinances of the City of Portsmouth, 905.06.)

The framers of the Portsmouth City Charter gave the City Council the authority to pass resolutions calling for the repair of sidewalks and the City Auditor the responsibility for sending out the notices for those repairs and the responsibility of keeping records of those notices. But the system that has evolved in Portsmouth for dealing with sidewalk repairs appears to be in violation of those sections of the Charter quoted above. The City Council and the City Auditor, who were supposed to be the key players, have been removed from the process. The Residential Building Inspector, employed in the City Engineering Dept., does the selecting and marking of the sidewalks to be repaired, sends out the notices, and keeps records of notices, though apparently not very well. Someone who tried to track down a record of a sidewalk the Residential Building Inspector had marked in 2005 was told none existed. It was either missing or, more likely, had not been filed in the first place. When it comes to sidewalk repairs and sidewalk files, the City Engineering Dept. has replaced or supplanted the Office of the City Auditor, and the Residential Building Inspector has replaced the Auditor.

This is a bad situation. Not only is Mayor Kalb's honesty and competency an issue, so is Larry Justice's. He is the Residential Building Inspector, the sidewalk inspector, the Code Enforcement Officer, and the Land Reutilization point man. That's a lot of responsibility for an employee who has been officially reprimanded in writing at least twice, once for lying to his immediate superior about an important zoning matter, and again for his contacts with a state official, in which he claimed authority and a job title that he did not possess. Justice was apparently trying to get a friend a job in the Engineering Dept. Given the latitude Justice presumably has in making judgments about buildings and sidewalks, as well as 1500 vacant and abandoned properties, his ethical lapses should be a cause for concern, especially since his boss is Mayor Kalb. A few citizens who have had dealings with Justice told me he is not the most truthful of public servants.

Justice followed the well-worn path down which the not too bright, the not too ethical, and the not too successful find a refuge in city government, where they advance by serving the interests of the kind of rich, clever, and overprivileged people they themselves are obviously not: think Bauer, think Kalb, think Baughman, think Mohr, think Loper, and think Malone. It was Rev. Malone, recall, the adulterous pastor, who publicly complained he was not getting the respect that he should be accorded as councilman.

If Justice's failures in the private sector are any indication, his performance as a public servant should be monitored closely. Justice owned a business at 817 Spring Lane named Quality Sheathing Co. He failed to pay Workmen's Compensation taxes to the state, which put a lien on his property and got a judgment against him for $7,053.76. The condition of the building at 817 Spring Lane that housed Justice's Quality Sheathing Co. and the sidewalks in front of that building are one of the worst eyesores in Portsmouth. 817 Spring Lane, does not reflect well on Justice's performance as the Portsmouth's Inspector of Buildings and sidewalks. A candidate for City Council received a citation from the city for keeping so-called junk on his premises, but there is far more junk inside 817 Spring Lane, constituting a serious fire hazard. Has Justice cited anyone for the hazardous junk in the building where his tax lapses occurred?

817 Spring Lane does not reflect well on the Building Inspector

Interior of 817 Spring Lane

Harold Daub told me the Health Dept. instructed Justice he had to remove weed patches on sidewalks in front of property Justice owns on 18th St. Whom do we turn to when the Inspector of Sidewalks and Enforcer of City Codes is violating codes? The Health Dept.!

Checks and Balances

Why did the framers of the City Charter, back in 1928, assign authority over sidewalks to the Auditor, the city’s chief financial officer? Why didn’t they assign responsibility for sidewalk repairs to the mayor, since the mayor is chief executive officer of the city and has the say over who is hired and who is fired in the City Engineering Dept.? Logically, it would seem the mayor, not the auditor, should oversee sidewalk repairs. But politics, not logic, was apparently what the framers of the Charter had in mind when they gave authority over sidewalks to the auditor. By provisions of the City Charter, the mayor already has enough opportunity to show favoritism in making purchases for the city and awarding contracts . Why give him authority over sidewalk repairs as well? That process is too susceptible to political hanky-panky. Suppose, for example, that the biggest property owner in the city was the chief financial supporter of the mayor. Wouldn’t the mayor be tempted to think his biggest supporter’s many houses and sidewalks were not in need of repairs whereas a political opponent’s houses and sidewalks might be deemed to be in bad shape? By making whoever inspected and repaired the sidewalks accountable to the auditor, rather than the mayor, the framers of the Charter were probably trying to prevent the mayor from having control over a procedure that might easily be politicized and abused. As Councilman Mollette pointed out in a discussion about sidewalk repairs, what the Charter provides with regard to sidewalks is part of a system of checks and balances. Just as the framers of the U.S. Constitution set up a system of checks and balances for the branches of the federal government, the framers of the Portsmouth City Charter apparently tried to provide some checks and balances among the offices of city government. The mayor in particular, as the chief executive officer, must not be allowed too much power, because power corrupts. It should be noted that the Charter allows the mayor to also serve as the head of any other department in city government, with the exception of Dept. of Finance. That appears to be another instance of using checks and balances, of making the auditor be a check on, and balance to, the mayor. The mayor cannot tell the auditor what to do.

But the checks-and-balances approach of the framers of the City Charter were eventually ignored. Somewhere along the way, the Council stopped being the branch of the city government that authorized sidewalk repairs and the Auditor stopped sending out and keeping record of the notices. The City Engineering Dept., over which the Mayor has authority, appears to have taken complete control of sidewalk repairs. The power that the framers of the City Charter chose not to give the mayor he nevertheless eventually acquired. The mayor is now in a position, through the department of the City Engineering, to influence whose sidewalks are deemed OK and whose are not. Putting such power in the hands of the mayor was bad enough, but it got worse.

In 2005, the City Council at Mayor Kalb's urging passed Ordinance 2005-87, making an important modification in the way the city, departing from the City Charter, was handling sidewalk repairs. The mayor argued in cases where sidewalks have been damaged as a result of trees planted near or on them by the city, then the city should pay for those repairs. That seems like a very fair and sensible proposal. But what the proposed change actually would do is give the mayor even more opportunity for mischief than he already has in regard to sidewalks. Suppose a political supporter of the mayor has sidewalks that are so badly in need of repair that they have to be fixed, but suppose that property owner prefers the city rather than himself pay for those repairs. Tapping into public monies is a practice that the overprivileged of Portsmouth have become so addicted to that they can’t stand spending a dime if somehow the public can be made to pay instead. Whether it is an unoccupied house or useless department store they want taken off their hands or a sidewalk that needs to be repaired, they want the public to foot the bill. Our current mayor is only too eager to oblige the overprivileged of Portsmouth. In fact, Mayor Kalb allowed the owner of a department store to unload it not once but twice on the city, for when the courts ruled the first sale of the Marting department store illegal, Mayor Kalb and his cronies brazenly turned around and took the useless building off the hands of its owner a second time. A mayor who would do that wouldn’t hesitate to shenaniganize sidewalks.

Speaking as a private citizen, Paul Penix pointed out at the 24 Oct. 2005 City Council meeting that the proposed change in the sidewalks procedures Mayor Kalb wanted was in violation of the City Charter. At the 11 Nov. 2005 Council meeting, when the ordinance to change the sidewalk procedures was up for a second reading, Penix repeated his warning. He said that while he was in favor of making the city pay for damages resulting from trees the city planted, “he felt the designation of the Mayor as the person who would notify property owners responsible for sidewalks would violate the Charter.” He was absolutely right. What he did not point out, however, was that the city government was already in violation of the City Charter by allowing the City Engineering Dept., i.e., Mayor Kalb, to have control over sidewalk repairs.

City Solicitor: Master of Obfuscation

The somewhat haphazard and apparently politically biased procedures that the City Engineering Dept now follows in requiring property owners to repair their sidewalks was what the framers of the Charter were apparently trying to prevent. But Portsmouth’s Master of Obfuscation (obfuscation), City Solicitor Kuhn, according to the minutes of the 24 Oct. meeting “acknowledged that the Charter does provide that notices will be sent out by the Auditor but it does not say that is exclusively the only place from which these notices can be sent.” Kuhn is either so dense or evasive that he makes Alberto Gonzales look like a graduate of Harvard Law School. We haven't had an honest city solicitor in a Kuhn's age. The issue is not who will send out the notices but by whose authority they are sent out, and who has oversight responsibility for the notices from start to finish. The City Solicitor, as usual, was not being precise. The Charter does not state notices will be sent out by the Auditor; the Charter states the “City Auditor shall (emphasis added) cause written notice[s]” to be sent out. Then the Charter adds, “A copy of the notice, with the time and manner of service endorsed thereon, signed by the person serving it, shall (emphasis added) be returned to the office of the City Auditor and there filed and preserved.” Merriam-Webster states that when used in laws, regulations, or directives, the helping verb shall is meant “to express what is mandatory.” It is what must be done. So the City Charter mandates that, once the City Council rules that certain property owners must fix their sidewalks, the Auditor or somebody of the Auditor’s choosing, must notify those property owners. What has happened instead is that the City Council and the Auditor have relinquished the authorities and responsibilities assigned to them by Charter to the City Engineer’s Dept., which is a department directly under the mayor’s control.

The issue is not whether Mayor Kalb is going to send out notices, because his office, as he pointed out, doesn’t and isn’t seeking to send out notices. The issue is whether the Dept. of Engineering, in violation of Section 111 of the City Charter, is going to continue to unilaterally make the decisions on who must repair their sidewalks, and is going to continue to send out the notices, and is going to continue to keep (or not to keep) the records of those notices. The issue is whether the City Engineering Dept., which the mayor has authority over, is going to continue to operate without any oversight from the Auditor or from anybody other than the mayor.

Paul Penix’s language at the 24 Oct. meeting is worth noting. He said that putting the mayor in charge of sidewalk repairs “could result in ‘selective enforcement’ should the Mayor have issues with certain citizens.” Penix made it clear that he wasn’t just talking about hypotheticals. Some residents in his ward already felt “selective enforcement” was taking place. The phrase “selective enforcement” is a euphemism. “Selective enforcement” is the kind of language citizens who address the City Council must resort to. If they are clearer and more specific in their criticism, if they call a spade a spade, and name names, they will be gaveled down by Council President Baughman, and if they persist in criticizing city officials they are ushered out of Council Chambers by Police Chief Horner. No criticism of city officials is allowed at Portsmouth's authoritarian City Council meetings. What Paul Penix apparently meant by “selective enforcement” of sidewalk codes is that Mayor Kalb might reward political friends by ignoring their sidewalks and punishing those “certain citizens” the Mayor has issues with. The mayor himself doesn’t need to be the one to punish “certain citizens”: he only needs to get subordinates in the Engineering Dept., who are answerable to him, to select them for him. Is there no Justice in the Engineering Dept.? Yes, unfortunately there is: Larry Justice.

Quality Shafting

What City Solicitor Kuhn was either trying to hide or, in a more charitable interpretation, was oblivious to, at the 24 Oct. meeting, is that the City Charter makes the Auditor’s Office that part of city government that will insure that sidewalk repairs are overseen by someone other than the mayor. It was not the intent of the framers of the City Charter that the Auditor’s Office would do the selecting and marking of sidewalks or that it had to be the office or department that sent out the notices. The Charter states that the Auditor could “cause” or authorize another department to send out the notices. But in doing so it would not, or at least it should not, relinquish the authority and responsibility over sidewalks assigned to it by the Charter.

The Portsmouth City Charter was written in the wake of the so-called Progressive Era of American history, when legislating against graft and corruption at the local, state, and national level became a civic crusade. Public construction projects, including the laying out and repairing of sidewalks was just one area in which crooked local politicians filled their pockets. Section 111 of the City Charter should be understood as an attempt to legislate against potential corruption. An honest and competent city solicitor who was combating rather than abetting corruption, would be expected to have that understanding of the Charter. But regardless of what the intent of the framers of the Charter was, the language of Section 111 is clear, and the city government is clearly not following it.

If the framers of the City Charter had concerns about the mayor when it came to sidewalks, what would they have thought if the Mayor and the Building Inspector were in charge of disposing of 1500 hundred vacant and abandoned properties as the two of them are in the so-called Land Reutilization Program. There is a committee to provide cover for this program, chaired by a new hire, a "sanitarian" in the Health Dept. What is a sanitarian with all of five months experience doing chairing a committee charged with the disposition of 1500 pieces of property? I do not mean to suggest any parallels with a certain stenographer of the Building Committee, but with Kalb and Justice in cahoots, with no City Charter provisions in place to provide checks and balances, and our Crooked City Council looking the other way, the results could be catastrophic. With Kalb pulling the strings and Justice finagling the files, 1500 other properties may end up in as bad a condition as the building, at 817 Spring Lane. It will be Quality Shafting, not Quality Sheathing.

In my next blog I will give particular instances of sidewalk shenanigans, naming names and singling out sidewalks of Portsmouth's overprivileged.