The deputy mayor owns a cafe. Should she have voted for outdoor dining?

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PORTSMOUTH – Two townspeople have filed an ethics complaint against Deputy Mayor Joanna Kelley over her decision to vote and discuss the city’s outdoor dining policy and the fees that have been set for restaurant owners like her to use the parking lot and other public spaces.

Residents Arthur Clough and Mark Brighton filed the ethics complaint on Thursday, saying Kelley had a conflict of interest and should have recused himself at the Feb. 22 city council meeting.

They noted in the seven-page complaint that Kelley had voted with council to set parking usage fees lower than those recommended by City Manager Karen Conard, saying the deputy mayor had a “direct pecuniary interest” in politics.

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The city attorney informed Kelley she could vote

Kelley, the owner of Cup of Joe Cafe & Bar, a downtown restaurant on Market Street, did not immediately return requests for comment Friday on the ethics complaint.

But at the February 22 meeting, she said that “as most of the public knows and everyone here, I own a restaurant downtown.

“So I just want to put it on the record and ask the city attorney to vote for this policy and this fee, is there a conflict?” she said during lengthy council discussions around the popular outdoor dining policy.

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City Attorney Robert Sullivan shared with council and the public that Kelley approached the Legal Department about the matter.

“We discussed it and reviewed the code of ethics together, and I concluded that there was no conflict for you to vote on it because the order would not affect you differently than it does. ‘affects others in the same situation in the city,” Sullivan said at the February 22 meeting.

Reached on Friday, Sullivan reiterated his legal opinion and added, “I don’t believe Deputy Mayor Kelley violated the code of ethics.”

“In fact, by seeking the opinion of the city’s legal department on this matter, she really took the reasonable step for a city councilman to take,” Sullivan said.

He acknowledged that after receiving her advice, voting on the matter was “a decision she had to make”.

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Clough and Brighton argue in the ethics complaint that Sullivan simply used the wrong standard in this case. They say he should have used the section of the city charter that governs the conduct of city officials and employees.

Section 3:8 of the charter states that “no elected or appointed officer or employee of the town of Portsmouth shall take part in any decision concerning the affairs of the town in which such person has a direct pecuniary interest greater than any other citizen or taxpayer, apart from the salary of such officer or employee.

“Voting for something that benefits you more than an average citizen is a conflict of interest,” Clough said on Friday.

In the complaint, they also asked that Sullivan not be involved in deciding whether or not to refer the matter to the full ethics commission for further investigation.

What happens next?

The city ordinance says the city attorney and Mayor Deaglan McEachern are to discuss the complaint and then decide whether it should be sent to the commission.

Sullivan said Friday the matter is on hold until he decides how to handle the request to stand down.

Brighton claimed Sullivan made a mistake and said the language he used to advise Kelley was “just out of the whole fabric”.

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When asked about this comment, Sullivan declined to comment.

“He can’t be part of this whole process. This decision could not have been clearer, she should have recused herself,” Brighton said.

Reached earlier this week, McEachern defended Kelley’s actions.

“The deputy mayor sought and received legal advice,” McEachern said. “I understand people are worried, but she did what was expected of her as a city official.”

“I don’t believe the deputy mayor did anything improper,” he added.

He also noted that ‘al fresco dining benefits all of Portsmouth, not just restaurateurs’.

“We do things not because it benefits one group or another group. We do it because it benefits the city of Portsmouth,” he said. “We had hundreds of people write in and say it directly benefited them.”

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