The New Hampshire Attorney General’s Office issued a cease and desist order to Nashua Mayor Jim Donchess and three fellow Democrats on the city’s board of aldermen over their use of public property to promote their side of a 2021 political debate.
The issue was Proposition 2, which would make substantial changes to the way the city’s police commission is composed.
The government property used was the city’s PEG, or public access TV channels and equipment, which the Attorney General’s Office ruled Donchess and the aldermen used to campaign for their political views.
“Following an investigation, this Office determined that each of your messages constituted electioneering because your messages were specifically designed to influence the votes of voters on Ballot Question 2,” Assistant Attorney General Brendan O’Donnell wrote in the order dated Jan. 11.
“The Mayor of Nashua and its alderman… remain subject to the prohibition against using government property or equipment to electioneer. Accordingly, this Office orders each of you to cease and desist from using city property, including but not limited to the City’s PEG channels and cable television equipment, to electioneer.”
O’Donnell’s order is directed at Donchess and Aldermen Ben Clemmons, Michael O’Brien, and Lori Wilshire. But Donchess told NHJournal he and his fellow Democrats had every right to take to the airwaves.
“I think (the letter) ignores First Amendment issues,” Donchess said.
Laura Colquhoun, the Nashua resident who filed the complaint, said Donchess and the others clearly broke the law.
“Please understand that political people should not be using public TV stations to sell their message to residents. If it was a debate with both parties showing up, that would not be a problem. However, when you only have one side going on the TV station, that is electioneering, and that is against the law,” Colquhoun told NHJournal.
In 2021, Nashua voters were set to vote on Proposition 2, which would make substantial changes to the way the city’s police commission is composed. Nashua is one of a handful of New Hampshire municipalities where an independent commission oversees the police department.
Nashua is unique in that the three civilian members of its commission are appointed by the Governor’s Office and confirmed by the Executive Council, not by local representatives like the mayor or board of aldermen. Donchess backed Proposition 2 to take back local control of commission appointments.
Under Proposition 2, the commission would be expanded to five members, with three appointed by the mayor, and two appointed by the board. All of the appointments would require board confirmation.
Donchess used Nashua’s local cable access station to make his case for the changes, recording a 15-minute presentation that aired 25 times before the municipal election. Clemmons, Wilshire, and O’Brien recorded their own separate presentation opposing Proposition 2.
“We never intended to do anything wrong,” O’Brien told the news site InDepth NH.
Proposition 2 ended up losing at the ballot box. Colquhoun later used the presentations for her complaint. O’Donnell’s cease and desist letter acknowledges that state law includes an exemption for public officials appearing in a news or information program. It states that while the separate presentations produced and aired by the politicians were a violation, if Donchess and the aldermen participated in a debate about Proposition 2 and had that broadcast on the station, they would not be violating the law.
O’Donnell’s cease and desist letter makes no sense, Donchess said. Both he and the three aldermen have an absolute free speech right to speak on political issues of concern to Nashua citizens.
“Both I and members of the Board of Aldermen were attempting to inform the voters about what the issues were pertaining to the ballot questions,” Donchess said.
Why two separate, competing presentations are against the law, but a debate on a particular issue is OK also makes no sense, Donchess said. It would still see elected officials making their arguments for an election issue on public cable.
“I do not see a distinction between (a debate) and the two presentations on the police commission,” Donchess said.