The urgency for transparency in using Nashua taxpayers’ hard-earned money is not just important; it’s paramount. As a state that prides itself on transparency, New Hampshire citizens should demand openness and accountability, particularly for publicly funded discretionary projects.
For instance, Nashua City’s Performing Arts Center project has already surpassed its budget, making the need for transparency even more pressing. Where is the money going? How much is coming back to the City? Is there waste or fraud? Is everything on the up and up? These are questions that should concern us all.
When elected and appointed officials impede access to information about what is happening, something is amuck.
Under the leadership of Nashua Mayor Jim Donchess, a disturbing trend of misrepresentations and obfuscation has emerged among the mayor and other top City officials. This is not just a matter of miscommunication; it’s a betrayal of citizens’ trust in certain of their elected representatives and appointed officials. The pattern is particularly troubling regarding the peculiar routing of millions of taxpayer dollars diverted from infrastructure and public safety projects to fund the discretionary Performing Arts Center, which appears to be the mayor’s pet project.
Mayor Donchess’ director of economic development, Tim Cummings, orchestrated secretive meetings to keep the public in the dark about the project’s complex financial structure, which has taken on the characteristics of a “shell game.” Suppose the funding for the Performing Arts project was transparent and accountable. Wouldn’t you expect the responsible officials to invite public inspection and not hinder public access and commentary by trickery?
It’s not just a matter of trust but of our collective responsibility as citizens to ensure that our tax dollars are used wisely and transparently. We have the power to demand answers, and we must use it.
Now, the NH Court must decide if this project’s meeting and records generated in the shadows can be seen in the sun. Should hearings on the expenditure of public funds be open to the public? It came to that!
On April 10-12, 2024, Nashua Superior Court held the last three days of a six-day Right to Know (RTK) Trial, Laurie Ortolano v City of Nashua and the 201 Main St. Corps. The Trial was all about public meetings and records contained within Director Cumming’s Economic Development Office (EDO).
The lawsuit challenged Director Cummings’s denial of noticing meetings and posting minutes per the law for the various commissions, committees, and boards under his office’s responsibility. While under oath, Mr. Cummings hesitantly acknowledged that his office oversees several City Committees and boards. However, when questioned on the two shell corporations (201 Main Street Corps) formed to accept federal money for the Performing Arts Center, Mr. Cummings claimed the 201 Main Street Corps were not under his department’s oversight. His statement proved to be false.
The City paid the legal expenses and fees to create these nonprofit public corporations to accept federal money. Because these corporations were pitched to the Board of Aldermen as public nonprofits, there is cause to believe that they were subject to the right-to-know NH RSA 91-A law. The structure presented by the City Attorney did not depict these Corporations as autonomous entities, separate from the City.
Mayor Donchess and his Corporation Counsel, Steven Bolton, failed to clarify the function of the corporations, and they appear to have done so to evade NH RSA 91-A. This pattern of denial continued for almost a year until Ortolano filed a right-to-know lawsuit, asking that the “City” manufactured agencies to advance the Performing Arts Center identify their public body/public agency status and produce the records they contain. She argued all of these meetings and records should be public.
I, Laurie Ortolano, have been to Court with the City too many times, seeking the truth and leaving without it. The April Trial reached a pinnacle of deception, and when the dust settled, so didn’t some of the deceptions.
I wanted to understand the City’s process for handling my right-to-know requests. I could not get a consistent and clear answer from Nashua City Attorney Leonard or Director of Administration Cummings. Attorney Leonard applied this blanket statement to many of my questions, “We comply with RSA 91-A.” You can see Leonard’s repeated statement as an overgeneralized and misleading response. Her actions seemed to diverge from compliance as prescribed by law.
Director Cummings and Attorney Leonard expounded on the stand that the 201 Main St. Corps created by the City as public corporations were not public bodies or agencies of the City. Therefore, the City was not responsible under the RTK law for noticing meetings for public attendance and posting their minutes. So, why did the City officials create them?
Because Mayor Donchess acted as if the 201 Main Street Corps were not City Corporations, his counsel argued that Corporations needed separate legal representation at the Trial. The City Attorney objected to questioning how these corporations involved with the Performance Art Center were structured, who structured them, and the purpose for this entangled condition. Now, five defense attorneys opposed one self-represented person.
Counsel for the Corporations specified that the City did not guide its hand-picked Board of Directors regarding governance or municipal law requirements, even though these Board members would be responsible for more than $25 million in taxpayer money to build the Performing Arts Center. So, we have a statement from a paid attorney that a non-taxpayer enterprise can run a taxpayer-funded entity without accountability and spend taxpayer money. The difficulty with the argument was that there was no evidence that the entities were untethered from the city.
Most people have seen how the blame game plays out. If someone is caught with their hands in the cookie jar, they blame someone else for making the cookies tempting. In roughly this way, the Trial became a finger-pointing game of villainizing the victims harmed by the Mayor’s non-disclosure practices. For example, for 20 months, the City, under Mayor Donchess, would not budge on a refusal to disclose who was responsible for notices and records for meetings and records and financial decisions recorded in documents relevant to the Performing Arts Center. As I raised questions, the mayor’s entourage villainized me and made themselves sound like the victims of their indiscretions and fiction.
The City claimed no responsibility for administrative oversight of the 201 Main Street Corps meetings where public funds were allocated and how they would be managed. Without realizing it, they declared themselves fiscally incompetent. The facts and evidence showed that the ” We know nothing (but control everything)” position was contradictory and fallacious but typical of positions the City previously took on right-to-know issues, such as attorney Leonard’s redundant ambiguous assertion, “We comply with RSA 91-A.”
The following exposed the Big Lie:
- The 201 Corporations have the same Employer Identification Number as the City of Nashua (in IRS terms, the City owns the Corporations.) Therefore, the city’s claim of separation of fiscal authority is false.
- The Board of Aldermen approves the Board of Directors members for 201 Main Street Corporations. A private corporation chooses its board and would rightly reject governmental interference in determining who is selected to serve on a Board. (Would General Motors seat only government-approved Board members?)
- The Board of Aldermen must approve changes to the Corporation’s bylaws. The entity that determines the bylaws controls the agenda and the organization. That action by the Aldermanic board adds further evidence that the City controls the entities,
- The 201 Main Street Corporation’s business address is City Hall. (If you ran “Barts Bakery,” could you use City Hall as your mailing address?)
- The Corporations’ business contact is Nashua City Director of Administration Tim Cummings. If the entities were separate, such an arrangement could be rightly viewed as a cozy arrangement or conflict of interest, but the preponderance of evidence points to a fusion. They originated with the City and are aligned with the city.
- The City is responsible for the tax filings for the Corporations. An independent agency would file its taxes as a separate entity.
- The Corporation’s only revenue source is the City of Nashua, and taxpayers funded the Corporation with the $21 Million of sold bond proceeds to construct the Arts Center. An organizational director with hands in a municipality’s pockets cannot be considered autonomous.
- 201 Main Board of Directors realtor President Rich Lannan identified that an employee of Mr. Cummings’s office recorded the minutes for their Corporation meetings despite both corporations having their secretaries. This government control of the private organization’s recorded records is incomprehensible unless the private organization is a façade for the government.
- The Nashua Taxpayers paid the Attorneys representing the Corporations in this lawsuit. This arrangement demonstrated the extra costs associated with an organization’s pretense of autonomy requiring its counsel at a hearing and a governmental agency’s payment of such counsel. The statement that the Corporation was independent and needed its private counsel to be paid by the City is a skit for Saturday Night Live.
City-orchestrated lies flowed free until mid-afternoon on the last day of the April trial. At that time, Mr. Cummings whistled a new tune. He seemed to understand that an avalanche of evidence against his false statements made it difficult to continue concealing the trickery and deceptions in the make-believe independent corporation game he and the mayor were playing. The 201 Main Street Corps associated with the Performing Arts Center were the City’s alter ego in advancing the Performing Arts Center agenda.
Mr. Cummings made a 180-degree change and negated his denial by admitting that noticing and posting meetings/minutes was his responsibility. Why he wouldn’t admit to something likely in his job description bewilders.
Mr. Cummings did not acknowledge that the Corporations were under the City’s control and management but that the City was the third-party vendor to post notices and meeting records on the City’s website. Ms. Leonard identified under oath that the City entered into a third-party contract late last year to serve as their meeting website (this was not disclosed to the public).
The city took three years to write this contract. The pussyfooting had ended. Why all the deception? A Court decision that the Corporations are public bodies or public agencies of the City could open challenges to the legality of the Corporation’s structure and potential misuse of public funds.
No shenanigans were necessary in this matter. The Corporate structure would not have been up for review if the City had just owned its responsibility as a third party to notice and post meetings/minutes. However, the easy way does not appear to be the Donchess way. Once he starts on one track, he continues.
I’ve lost count of the prevarications and dissimulations from Nashua city officials and agents. I am surprised when I hear something truthful. That’s a sad testament to our times but one I hope will start changing.
Fairness is a prelude to truth and trust, which are preludes to cooperation. Transparency weaves through this process, as it must be for people to pull together and work together. This basic human need is making a comeback. The 2023 word of the year is authenticity. However, those who practice derision and promote discord are not to be underestimated. They are like “bad pennies that keep coming back.”
Does truth matter in Court? Not of you listened to days of testimony by Mr. Cummings. The Courts provide an opportunity for a just result, but there are no guarantees. Exposing fiction and using some common sense, however, helps spur justice.
To all who read this, what do you think?
