Atherton v. City of Concord

Citation109 N.H. 164,245 A.2d 387
Decision Date23 August 1968
Docket NumberNo. 5751,5751
PartiesThomas W. ATHERTON v. CITY OF CONCORD.
CourtSupreme Court of New Hampshire

Bois, Laflamme & Kalinski, Maurice P. Bois, Manchester, for Thomas W. Atherton, d/b/a Atherton Radio TV & Appliances.

R. Peter Shapiro, City Solicitor, by brief, for the City of Concord.

Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, Martin L. Gross, Concord, for the Concord Housing Authority.

LAMPRON, Justice.

Petition for a writ of certiorari to review the proceedings of the Board of Aldermen of the City of Concord when it adopted, on March 13, 1967, by a vote of 8 to 7, a resolution 'Approving The Urban Renewal Plan And The Feasibility Of Relocation For Project No. N.H. R-13.' See 42 U.S.C. § 1455. This project is also known as 'Capitol Plaza North Urban Renewal Project.' The petition also sought an order quashing the vote thereon, a declaratory judgment that the adoption of the resolution was null and void, as well as other relief. As stated in his brief '(t)he essence of the plaintiff's petition is that certain aldermen who voted in favor of the approval of the urban renewal project * * * were disqualified from voting because of a conflict of interest on their part.'

'It is general rule of law, and the law in New Hampshire, that 'there is a conflict of interest when a public officer votes on a matter in which he has a direct personal and pecuniary interest'.' Preston v. Gillam, 104 N.H. 279, 281, 184 A.2d 462, 465; Opinion of the Justices, 104 N.H. 261, 264, 183 A.2d 909; 2 Davis, Administrative Law Treatise, s. 1203, p. 154; 58 Colum.L.Rev. 157, 175. 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. Rollins v. Connor, 74 N.H. 456, 458, 69 A. 777; Genkinger v. City of New Castle, 368 Pa. 547, 552, 84 A.2d 303; 47 Va.L.Rev. 1034, 1045.

However, the rule is also well established that, to disqualify, the personal pecuniary interest of the official 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.' Opinion of the Justices, 75 N.H. 613, 616, 72 A. 754, 756; Mitchell v. Holderness, 29 N.H. 523, 526; Holderness v. Baker, 44 N.H. 414, 418; Rider v. City of Portsmouth, 67 N.H. 298, 299, 38 A. 385; Opinion of the Justices, 104, N.H. 261, 264, 183 A.2d 909; Papademas v. State, 108 N.H. 456, 458, 237 A.2d 665.

The area of matters on which aldermen and other legislators must pass is of such a wide range that almost every legislator, whether he be in a private or public calling, or in neither, must inevitably have some interest which may conceivably be affected by some legislative proposal. See Reilly v. Ozzard, 33 N.J. 529, 550, 166 A.2d 360, 89 A.L.R.2d 612; 47 Va.L.Rev. 1034, 1035 1045. It follows that, if every possibility of conflict, no matter how remote, uncertain, contingent, insubstantial or speculative, were cause for disqualification, many persons who are peculiarly suited for public office by the very reason of their commercial or professional experience would be prevented from contributing their services to the community. Opinion of the Justices, 75 N.H. 613, 72 A. 754; Opinion of the Justices, 104 N.H. 261, 183 A.2d 909; 107 U.Penn.L.Rev. 985, 986. Hence the soundness of the rule that only a direct personal and pecuniary interest on the part of an official in the matter under consideration requires his disqualification to act thereon. Preston v. Gillam, 104 N.H. 279, 281, 184 A.2d 462.

It was said in Rollins v. Connor, 74 N.H. 456, 69 A. 777, that 'whatever right a member of a legislative body may have to vote upon questions in which he may be interested, when the question under consideration is purely legislative, he cannot do so when the body is acting judicially.' In the latter instance a legislator is disqualified when he has a direct personal and pecuniary interest. Rider v. City of Portsmouth, 67 N.H. 298, 299, 38 A. 385. The Trial Court ruled that the action of the aldermen approving the Capitol Plaza North Project was legislative. See Wilson v. City of Long Branch, 27 N.J. 360, 385, 142 A.2d 837. However it is unnecessary to decide whether this was a proper characterization of the nature of the Board's action, as in judging the status of the persons whose votes are questioned by the plaintiff the Trial Court applied the stricter test which regulates disqualification when the Board of Aldermen is acting in a quasi-judicial or judicial manner. As a matter of fact the Trial Court (Bownes, J.) ruled that an indirect financial interest greater than any other citizen or taxpayer in the decision would disqualify an alderman or other City official from voting. See RSA 49-A:82.

The determination as to whether an alderman or other city official has a direct personal and pecuniary interest in the matter under consideration which will disqualify him from acting thereon is necessarily factual and depends upon the circumstances of the particular case. Preston v. Gillam, 104 N.H. 279, 282, 184 A.2d 462. Conflicts in the evidence are to be resolved by the Trial Court. Streeter v. New Eng. Box Co., 106 N.H. 146, 148, 207 A.2d 423.

The Trial Court properly ruled that the Concord Housing Authority, which was the Agency designated to carry out the execution of the Capitol Plaza North Project, 'is an independent municipal corporation * * * and not an agency of the City of Concord.' RSA 203, 4, 8. It is charged with providing safe and sanitary dwelling accommodations for persons of low income. s. 2. It has the right to acquire real property by the exercise of the power of eminent domain (s. 12) and the power to issue bonds for any of its corporate purposes. s. 14. Under RSA 205:2 such a Housing Authority can be charged with carrying out redevelopment projects initiated by the Board of Aldermen (RSA 205:4) as was done in this case, with power to acquire property. (RSA 205:2). There was evidence that the Concord Housing Authority when exercising its two functions deals with completely separate federal agencies, calls upon completely separate funds and acts under two completely separate statutes.

In his petition, plaintiff alleged that 'Alderman Robert D. Branch, who voted in favor of the resolution, was then and for a long time previously employed as an attorney by the Concord Housing Authority, the proponent of the project, and had also disqualified himself by prejudging the project as an ex officio member of the City Planning Board which had approved the project prior to March 13, 1967. He was disqualified from voting on said resolution on March 13, 1967.'

The fact that Alderman Branch was a member of the Planning Board which unanimously voted in favor of this Project does not prove that he had an interest in the Project other than that of any other citizen and did not disqualify him to vote on March 13, 1967. Rider v. City of Portsmouth, 67 N.H. 298, 299, 38 A. 385; N.H. Milk Dealers' Assn. v. N.H. Milk Control Board, 107 N.H. 335, 339, 222 A.2d 194; Moskow v. Boston Redevelopment Authority, 349 Mass. 553, 565, 566, 210 N.E.2d 699.

Mr. Branch by contract dated October 11, 1961 was employed as attorney by the Concord Housing Authority in its operation as developer of low-rent public housing (RSA Ch. 203) for a particular project known as Penacook Elderly Housing. This contract had terminated and Mr. Branch had been paid in full for his services before the vote questioned in these proceedings. On August 4, 1965 Mr. Branch entered into another similar contract with the Concord Housing Authority, again in its operation as developer of low-rent public housing (RSA Ch. 203), for another specific project known as John F. Kennedy Apartments. This contract had not been terminated on March 13, 1967. These contracts, except for being with the same Housing Authority, had no other connection with the Capitol Plaza Project, the subject of the vote on the above date.

On October 28, 1967 Mr. Branch entered into an agreement with the Concord Housing Authority to serve as attorney in its operation of carrying out under RSA Ch. 205 the redevelopment project known as the Capitol Plaza North. In December 1965 an opinion was sought from the Federal Agency in charge of Urban Renewal regarding the compatibility of Mr. Branch serving as attorney while he was an alderman and a member of the Planning Board. An answer was received that this situation would constitute a conflict of interest under the terms of the contract with the Federal Agency. Whereupon Mr. Branch resigned in January 1966 as attorney under the contract with the Housing Authority relating to the Capitol Plaza North Project.

There was also testimony by Mr. Branch that he had some arrangement as tenant in a building owned by Turcott Associates by which he would 'swap rent for services,' which 'in a sense' is a retainer but 'I do not represent them in everything.' There was evidence that the Turcott Associates also owned property within the area of the Capitol Plaza. However there is no evidence that Mr. Branch was representing the Associates in regard to this property. Mr. Branch testified 'that as far as he kne...

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16 cases
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    ...if an administrative official 'votes on a matter in which he has a direct personal or pecuniary interest.' Atherton v. Concord, 109 N.H. 164, 165, 245 A.2d 387, 388 (1968); Opinion of the Justices, 104 N.H. 261, 264, 183 A.2d 909, 912 (1962). To require disqualification the interest of the ......
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