Sunday, January 21, 2024

Bad Credit and Good Trouble: Breaking Down The Haverhill, NH Select Board's Dealings with Donahue Tucker and Ciandella Attorneys

"There's no limit to the good you can do if you don't care who gets the credit." 

General George C. Marshall 

      It is fitting that Ronald Reagan is often cited as the man responsible for the above quote when it was actually George C. Marshall who said it. It is a quote that sort of defines the Plan B Justice mission. It also drives our investigations. The Haverhill vs. Woodsville debacle has a few credit takers who ruthlessly violate the spirit of Marshall's quote, but in this circumstance the word "credit" has a double meaning. It has a financial connotation as well. 

      This is a situation where it's easy to spot the bad actors based on their incessant need to take that credit, whether they earned it or not. 

      We begin with the "crisis" that led us here: the NH Department of Revenue Administration refusing to set the tax rate for Haverhill, New Hampshire due to a New Hampshire Supreme Court appeal from Woodsville (a district within Haverhill) that was still pending at the time. That appeal just recently came before the state Supreme Court for oral argument on January 18, 2023. It was mostly a technical argument for the DRA attorney, while the Woodsville attorney went ballistic on the merits of a case that could be thrown out just for lack of jurisdictional standing. 

     The tax rate issue briefly put the town of Haverhill in a difficult position, but it did not take very long to remedy. Yet, the situation created the perfect window for a small-town coup attempt that featured severe conflicts of interest on both sides of the under the radar arrangement between corrupt attorneys and Haverhill Select Board members aligned with Woodsville.     

      Donahue Tucker & Ciandella (DTC) attorneys essentially took credit for work actually accomplished by another law firm and a local politician to expeditiously fix the tax rate problem. The Department of Revenue had already recognized Drummond Woodsum as the town's official counsel on the matter. Yet, the efforts of District 2 Executive Councilor Cinde Warmington turned out to be much more key to the setting of the tax rate than anything DTC attorneys did to address the situation. Before DTC attorneys even had their official hiring paperwork signed, Warmington personally attended a January 12, 2023 emergency meeting with Haverhill officials. 

Christopher "No Conflict Here" Hawkins

      By January 13th, DTC Attorney Christopher Hawkins was advising both Woodsville and Haverhill officials to thank Warmington for her efforts to get the tax rate set. Hawkins specifically stated that Warmington "moved Heaven and Earth to champion the town's interests." 

      Warmington herself put out a press release describing her involvement in getting the rate set:  


      As for the DRA, Revenue Counsel Peter Roth told DTC attorneys they were more of a hindrance than a help in his January 23, 2023 letter explaining, "DTC's overly aggressive approach to this matter will be remembered here. In my 33 years of practicing law I have not seen such theatrics from an ostensibly respectable firm, and it is disappointing to say the least. The Department sets hundreds of tax rates every year and none have proved as controversial as this Town's. Unfortunately, all of the difficulty was due to errors and omissions by the Town, the school district, and Woodsville and the needlessly contentious approach taken by them and by your firm."  

      Hawkins and his DTC colleagues had no qualms about taking undue credit for getting the Haverhill tax rate set. "We are proud of the work we did on the Town's behalf and have no problem accepting criticism for advocating for you too forcefully." wrote Hawkins in a January 25th, 2023 email to the Haverhill Board of Selectmen secret account, which DTC attorneys advised the board members to create. 

     The DTC attorneys also were not bashful in their written communications on the subject of their true purpose in working with Woodsville sympathizers on the Haverhill Select Board. Christopher Hawkins continuously brought up Town Manager Brigitte Codling and tried to build strategies for the board to work around her. 

     Town Manager forms of government with select boards are supposed to operate with a "checks and balances" mentality in mind at all times. If one entity goes rogue, the other is there by design to counterbalance those negative effects if the system is honest. So, it should have been plainly obvious to these DTC attorneys and the involved board members that working around Codling and subsequently trying to get her suspended or terminated with no real investigation into her conduct was directly contradictory to the very spirit of a Town Manager form of government. 

      This board indeed went rogue, publicly discussing the need to find an attorney with aligned interests first and then not even conducting any meaningful search for the man they wound up working with. Christopher Hawkins had conflicts six ways to Sunday and eight days a week on this case. He represented Woodsville against Haverhill in a very contentious and controversial case in the recent past. So, he crafted a very favorable conflict waiver for the tiny village district. He specifically drafted the document so that he could work for Haverhill's Board of Selectmen this time on behalf of his friends in the district of Woodsville. The waiver Hawkins and Woodsville signed would not even permit Hawkins to do anything for Haverhill which might adversely impact Woodsville. 

      The only signature from any board member on both the waiver and retainment agreement for Attorney Hawkins and his DTC colleagues was that of Selectman Steve Robbins. Robbins is an executive level employee of the Woodsville Fire Department.  By law he should have recused himself from any vote or discussion on the matter since it tied directly to warrant articles that could impact his personal finances. He was obligated to either leave the room or sit in the audience during any discussions of that funding, and that certainly makes his lone signature on all the legal paperwork very suspect in hindsight. 

     Clearly the DTC attorneys involved should have been astute enough to realize they could have had any other board member sign these documents in order to bypass this very issue. If DTC attorneys can accomplish the impossible and get even a small portion of their bill for all these legal shenanigans paid, the town may still have a case for malpractice against them. There are just so many steps in this where an honest and forthright approach that was completely by the book was needed. Instead, DTC attorneys burned the book and did it their own way, secretly and stupidly, with unethical motives and unclean hands. 

      The particular circumstances and facts of each legal case must be factored into the determination of whether an official should be disqualified from acting on a matter. However, the general rule is that a conflict of interest requiring disqualification will be found when an official has a direct personal or pecuniary (financial) interest in the outcome. That interest must be “immediate, definite and capable of demonstration; not remote, uncertain, contingent or speculative.” (see Atherton v. Concord, 109 N.H. 164 (1968)). As the Court in Atherton explained, “The reasons for this rule are obvious. A man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a personal financial interest which is, or may be, in conflict with the public interest.”  

  A public officer is disqualified if he has “a direct personal and pecuniary interest” in the decision. (see Preston v. Gillam, 104 N.H. 279 (1962)). However, the interest must be “immediate, definite, and capable of demonstration; not remote, uncertain, contingent, and speculative, that is, such that men of ordinary capacity and intelligence would not be influenced by it.” Atherton v. Concord, 109 N.H. 164 (1968)  

    When in doubt, a public official should naturally step down. Under the rule of the Winslow and Keene cases, a court will overturn a board’s decision if a disqualified person participated, whether or not he or she influenced the outcome. See Appeal of Keene, 141 N.H. 797 (1997); Winslow v. Holderness Planning Board, 125 N.H. 262 (1984). Usually, it is not worth risking having a decision overturned because of a conflict of interest. 

      Instead of the full board getting a second opinion from a disconnected party with clean hands to handle their pressing issues, the Woodsville sympathizers on the Haverhill Board of Selectmen found the most conflicted attorney in the DTC firm to press their campaign against a town manager just trying to follow the advice of longtime town Counsel Drummond Woodsum. The most conflicted board member added insult to injury by being the only one to put his signature on all the crucial paperwork. 

     Board Member Michael Graham first contacted Christopher Hawkins in May of 2022. Hawkins was not hired then. Board Member Kevin Knapp then reached out again to Hawkins specifically in September of 2022. Hawkins was not hired then, either. That happened a few months later, under the guise of a false alarm regarding the tax rate. 

      Through secretive "non-meetings" with conflicted board members that Attorney Hawkins was able to arrange, the Board Members and the former Woodsville attorney plotted their course to discipline the town manager and preferably remove her from office. Yet, not one formal charge of misconduct was ever lobbied against Codling, and no disciplinary measure ever moved forward against her under DTC's guidance of the board. 

      Nowhere else is the bias and conflict Attorney Hawkins ignored to pursue this opportunity more apparent than in his own written communications with colleagues and the Haverhill Select Board Members he dealt with to appease Woodsville's best interests at the expense of Haverhill taxpayers. 

     Instead of doing the real foundational work for getting the tax rate set by the DRA, Hawkins began immediately attempting to fulfill the board's true "secret" mission. That was to do whatever it took to exclude Haverhill Town Manager Brigitte Codling from all crucial discussions, since the true purpose of DTC's hiring was to seek "disciplinary action" against Codling. 

      Before the signature of Robbins appeared on any DTC retention agreement or final conflict waiver, Attorney Hawkins received a critical email from colleague Eric Maher on January 11, 2023 in which Maher detailed a conversation he had with Assistant Town Manager Jennifer Boucher. 

       Maher stated plainly at the end of the email: "I made no mention of the Town Manager during that discussion or the Select Board's concerns with her." 

      This clearly indicates that Hawkins and Maher both understood the board's clear intent to ostracize Codling. However, it is hard to imagine a scenario where any unconflicted legal team would actually follow such a course of action before any definitive conduct investigation occurred which would give the attorneys any basis to seek disciplinary action against Codling. It is also even more difficult to fathom how a "municipal expert" like Attorney Maher could put such a statement in writing. It seems more likely that the conflicted board members involved actually instructed DTC attorneys to keep Codling in the dark. The attorneys obviously gladly obliged rather than independently examining the facts and whether there was any real reason to justify locking the town manager out of legal discussions between Board Members and DTC lawyers. 

       Just four days after Maher told Hawkins their secret was safe, on January 15th at 10:04 AM, Hawkins wrote an even more suspicious email to Maher about the mission plan for removing Codling from office. 

       "Leaving aside all else, I don't believe we will be able to get Haverhill on track so long as Brigitte Codling remains in the mix," Hawkins wrote "She will take steps large and small to undercut and undermine our progress and continue to sow dissent and otherwise make trouble. I think we need to be prepared to recommend her administrative suspension and get either Glenn English or someone from MRI in there ASAP. I think we also need to be prepared to do the same with Jennifer Boucher, who will probably serve as a backdoor source of information for Brigitte while she is on suspension. The timing is delicate given the tax situation and the upcoming Town elections, but the Town may need to bite the bullet."

      Aside from having no legal, statutory or procedural basis to remove Codling, Hawkins actually suggests pursuing an administrative suspension against Boucher simply because she "will probably serve as a backdoor source of information for Brigitte while she is on suspension." In other words, they want to basically arrest her for a future crime she has even not committed yet. Obviously this is just discussion between colleagues and nothing ever came of it, but it's easy to wonder how these attorneys thought that this kind of "administrative suspension" would be achieved with absolutely no evidence of malfeasance. Also, if Codling ever "made trouble" it was the kind of "good trouble" Former Congressman John Lewis often spoke about before his passing. 

      Hawkins additionally reveals his true sympathies for Woodsville by name-dropping Glenn English in the email. English revealed in a long deposition that he made serious accounting errors in providing Woodsville with funding over the term of his employment as Haverhill Town Manager. Another legal document summarizes some of that testimony and includes a voluminous set of accounting figures to explain the "memorandum of understanding" that governed the Haverhill to Woodsville funding agreement for years. This packet of crucial information was part of the town of Haverhill's legal defense in a lawsuit filed against the town over the Woodsville Fire Department funding. The document includes the following glaring statement: 

        "For example, Mr. English testified that 'gross budget' is a 'made up phrase,' and did not know the difference between a net operating budget and a gross operating budget, and repeatedly misused the term 'expenditure' in the context of municipal budgets." 

      It seems like Woodsville enjoyed the benefit of English's fuzzy math, and their old legal crusader wanted him back at the helm to do more of it. The accounting of Woodsville's finances will be the focus of a future installment here on the site, because it really needs an article all on its own. 

       The NH Department of Revenue Administration has also taken a keen interest in Woodsville's accounting practices over the years. Woodsville's "special" district status gives it a very unique set of rules and regulations on how funds are supposed to be kept, spent and raised. These complex guidelines provide convenient cover for the old "we didn't know that" excuse. This put Woodsville's administrators in a position of asking for forgiveness instead of permission when formal audits began to uncover serious irregularities.  

      James Gerry, the former Director of the NH Department of Revenue Administration, testified at a hearing on Senate Bill 26 in May of 2022 and explained: 

     "NH law mandates that all municipalities with populations greater than 750 conduct an annual audit. Now over the last 20 years the Woodsville Fire District attempted to complete just one audit, and that was in 2014, and that audit was not completed because officials in the district refused to provide the necessary documents over a dispute about confidentiality." 

     He continued, "Since 2014 the district elected numerous auditors and made statements both to the public and the DRA that they had audited financials, but after we investigated the situation we realized the locally elected auditors never actually performed an audit and the audited financial statements they claimed to have were nothing more than unaudited financial statements." 

     "The first time we actually saw movement toward completing an audit was when SB414 was introduced last year. This bill which passed the house and senate imposed the same penalties that this bill does for not completing their audits in a timely fashion. As a result of the pressure put on the district in 2020, they engaged the firm Plozdik and Sanderson to do at least 5 years of audits. As of today, they have completed 3 years of audits. These audits have revealed numerous violations of state statues, these include violations of RSA 32 municipal budget law, RSA 33 municipal finance act, and additional violations of RSA 41." 

     "Some of the violations include taking out loans without first getting approval from the voters. Under New Hampshire law you are supposed to get 60 percent approval from the voters. They took out loans without getting any support from the electorate. Filing incomplete and misleading forms with the DRA that concealed these loans and making risky investments contrary to state law. The DRA is in the process of further investigating these violations. This includes co-mingling of funds."

    "The audits also have detailed concerns not under the purview of the DRA, one such example which has been talked about, was the district falsely reporting to the NH retirement system over an 11 year period, about an employee they had miscategorized, in additional to the numerous violations of statutes the audit detailed the district had no meaningful internal controls in place that would minimize the risk of fraud or errors, in fact the audit states the following: 'Based upon the audit procedures and observations during the audit we noted the district has a lack of internal controls and direction regarding the accounting system and overall fiscal mismanagement.'"

     The entirety of the hearing is worth watching and listening to, especially if you pay close attention to the "Glenn English" profile that pops up with Former Woodsville Commissioner Dick Guy speaking first, then Glenn English. The feed appears to be a broadcast directly from the building housing the Woodsville Fire Department. 

Dick Guy (left), Woodsville Administrator Kevin Shelton (behind Guy), and Woodsville Commissioner Steve Wheeler (at right, mostly off camera)

Glenn English speaking (with Steve Wheeler standing directly behind him)

     Steve Robbins also speaks in the footage for a few minutes, railing on about "double taxation." English himself reveals his history as Haverhill's town manager, a longtime Woodsville resident and a family business owner. His sympathies are obvious as he opines for the way things used to be. 

     Unfortunately for SB26 detractors in the footage, the whole idea of any "double taxation" going on under the town's proposal to take over the responsibilities of Woodsville's road maintenance is a pipe dream. The proposed singular road crew that would then cover the whole town effectively eliminates the existence of two highway departments Woodsville would have to pay for. There is also no double taxation under a unification strategy the Town Manager is trying to implement with all the other districts and the town's core fire department. 

      During a recent interview, former Woodsville Commissioner Dick Guy (pictured above) was quick to point out that the Haverhill Select Board actually conceived the funding arrangement that gave rise to this whole controversy. He also said in the past the district and the town had a very cooperative relationship. Their departments often assisted each other. 

     Guy specifically objected to the term "gravy train" used in a previous article on this site. Former New Hampshire Senator Bob Giuda used that phrase a few times in his public remarks on SB26 (see hearing link above), which was designed to eliminate the state requirement for Haverhill to fund Woodsville's road maintenance. 

     "There was never a gravy train," said Guy. "And you didn't need to be accountable for the money, because it was Woodsville's own money. If they want to take it and put it in a pile and burn it, that's their problem. But, they used it for the highway, of course they did. They needed it."

     As far as Haverhill taking over road maintenance for Woodsville, Guy doesn't think the town knows what it's getting itself into. He insists the village district has different needs than the rest of the town due to complicated drainage systems and having so many paved roads while the rest of Haverhill is mostly dirt and gravel roads. Though there is argument over whether Woodsville has 12 miles of roads or just 8 in some calculations, either figure makes most people ask, "what's the big deal?" Guy explains that "there's a lot more work to paved infrastructure." 

     "In fact it would be very advantageous to Woodsville to let the town of Haverhill maintain our roads," Guy continued. He said then the burden would be on Haverhill as a whole and not on just the taxpayers of Woodsville the way it is now. He also suggested keeping the highway department in Woodsville intact and just relieving the district's taxpayers from their obligations to pay Haverhill Highway Department taxes.

       Any suggestion of merging departments, either fire or highway, is a non-starter for Guy. He speaks of a bitter rivalry that sounds a lot like the Hatfields and McCoys minus the extreme violence that plagued that famous feud. Nobody's getting shot over these politics, but Guy said Woodsville employees will suffer from major morale problems if any merger happens.   

      Guy was very dismissive of any suggestion that Woodsville's financial history is troubling. "The DRA wanted us to do really deep audits. They audited all the years in question. And they came up with, 'Yeah you guys did some procedure things wrong.' But there was no money issues. There was no money missing. They found, 'Yeah, you put money into a savings account, but you have to have voter permission to do it, so that's against the law.' And we were just thinking, hey, we'll make some interest money for the public, you know." 

     Audits finally performed for Woodsville in recent years revealed even more instances of financial mismanagement, but Guy maintains the old "who knew" defense. Since "Special" District territories like Woodsville have such unique circumstances and sometimes extremely antiquated rules of operation, it's an easy fallback excuse. It's also one that is not likely to work again in the future, as state legislators are in the midst of trying to pass another bill requiring long term auditing of Woodsville's books by the Department of Revenue Administration. If the bill passes, the future audits will have to be completed at Woodsville's own expense. 

     Senate Bill 448 even imposes financial penalties for Woodsville if it does not comply with strict guidelines for those proposed audits, explained as follows: 

"Pursuant to 2021, 91:435, the Woodsville fire district shall provide financial audits by a certified public accountant approved by the department of revenue administration that is compliant with generally accepted accounting practices (GAAP), of all funds received from the town of Haverhill and all other sources including state and federal funds, and of all funds expended by the fire district, for each calendar year commencing January 1 of the year after passage, as directed by the department of revenue administration.  The department of revenue administration shall approve the scope of the audit and shall receive monthly updates from the certified public accountant and the Woodsville fire district on the status of the audit while it is in progress.  The results of the audit shall be published on the town of Haverhill website within 60 days of delivery by the certified public accountant to the Woodsville fire district and the department of revenue administration.  The audit shall be at the expense of the Woodsville fire district.  Reimbursement of any expenses related to the audit incurred by the department of revenue administration shall be in accordance with the provisions of RSA 21-J:22.  The department of revenue administration may levy a fine of $250 per day against the Woodsville fire district for every day of noncompliance with section 3 of this act beyond one year from the effective date of section 3 of this act.  The commissioner may waive such fine at his or her discretion, subject to the good faith efforts of the Woodsville fire district to comply with all relevant laws and the provisions of section 3 of this act."

     Dick Guy is not particularly concerned about new audits. "That's not a problem," he said. "I think they're doing audits continuously now, so who cares?" He is no longer commissioner in the district, but he still seems always ready and willing to serve as the unofficial spokesman for the community. Guy has been a longtime EMT in Woodsville and has an intimate connection to the Fire Department. 

    The scene Guy describes now is full of consternation and mistrust. It is no secret he is a vehement opponent of Town Manager Brigitte Codling. He suggested we look into Codling's history in Cabot, Vermont and with the Vermont Department of Transportation. "The town didn't do a good job of vetting her when they hired her," he said. "I'm not a big fan." 

     A simple Google search for Codling associated with Cabot, Vermont mostly turned up articles about her stance on unifying the area's schools. She defends her record as an employee of the state of Vermont as "exemplary." Guy, just like the attorneys, seems to be eager to eject Codling from her post without due cause or any hard evidence she did anything irresponsible or punishable by even the slightest of penalties. 

     Guy has a reputation for even more staunchly demonstrated opposition of the Haverhill Town Manager. She even maintains that he personally approached her after a contentious hearing in Concord once and whispered in her ear, "You'll be gone in a year." The comment set her off, and Selectman Darwin Clogston had to intervene. 

      Guy has also put his name on local newspaper advertisements seeking Codling's removal from office and supported other unique efforts to force her out. It seems this highly personal feud has him not even wanting to own property in Haverhill anymore. He said he used to own six properties in Haverhill, but he is trying to get his wife to sell the last property they own there "so I don't even have to hear this anymore." 

      What Guy says about Attorney Christopher Hawkins is also intriguing. He recalled that the attorney put in very good work on the district's lawsuit against the town and particularly enjoyed the "scathing" letter Hawkins drafted to deal with the DRA tax rate setting issue. Guy said he received a copy of the letter and "my hands got hot when I read it." He also is convinced that the DRA "caved" upon reading the contents of the same letter. "I think their attorney had to agree he was right," insisted Guy. 

     He argues the Haverhill Board of Selectmen hired Hawkins "because he's so good." He admits he spoke with a couple of the involved board members recently and he is confident they will testify if it comes to that point in the existing legal conflict between DTC attorneys and the town. "It's gonna be three or four selectmen versus the town manager on that. She's gonna be outnumbered on who said what." 

      Guy comes across as very sincere. He believes in what he talks about. However, he doesn't really do well in describing the reasons why Woodsville absolutely needs their own independent fire and highway departments. He also fails to provide any valid reason why the fire and highway departments as they exist in Woodsville could not find a way to merge with Haverhill's departments so people could keep their jobs. On top of all that, he did not ever really cry poverty. He never claimed that without the yearly funds from Haverhill, the district couldn't afford their own departments if they still wanted them. 

    Dick Guy seems more convinced the best course of action would be for Woodsville to secede and become an independent town of their own. At the same time, he also admits the precinct probably couldn't afford to actually take that step. Rather than come up with another contentious "formula" to forgive some portion of taxes and set up some other financial arrangement to fight about down the line, Codling simply wants to provide a town-wide solution for all the districts. 

     As an investigative reporter with a great deal of experience with how corruption works in the government and corporate world, I can see how Codling would face such heavy opposition to eliminating duplicative efforts and whittling down a bureaucracy to a more manageable size. It's not a popular choice, even if it's fiscally responsible. 

     As an outsider looking in, I see Woodsville's actions regarding this funding as akin to the temper tantrum of a petulant teenager, an overgrown child used to getting a hefty allowance from their parents who is then told to go get a job and pay their own way because they've grown up. Rather than forge their own path and seek their own self-funded financial security, Woodsville's officials are as vigilant as ever about getting back to the gravy train glory days. The people still in charge seem like they would rather find some way to travel back in time rather than even think about adjusting for the future, and they would rather be able to form their own town than think about merging two of their departments with Haverhill's. 

     "They just want to fight," Dick Guy told me about the two current town officials I contacted in the same email I sent to him. (Paul Kidder and Steve Wheeler)

      "I keep reading about and hearing about how the town of Haverhill is more divided than ever. Obviously the path forward is not to go back," Former Haverhill Selectman Darwin Clogston once said about this situation. He's right. It is not the 1800s anymore. Woodsville is all grown up now. If they still want their own big, fancy departments instead of depending on Haverhill's, they can use their "lucrative enterprise" revenue to pay for those departments. 

CLICK HERE to read part one of this Haverhill/Woodsville series.

CLICK HERE to read part three of this Haverhill/Woodsville series.

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