PORTSMOUTH — The city is defending against a police union grievance about a recent promotion process by using the union's own recent legal argument against it.

The grievance was filed Jan. 11 with the New Hampshire Public Employee Labor Relations Board, by the Portsmouth Ranking Officers Union, which claims it's “concerned” the promotion process was flawed, leading to the promotion of Mark Newport to the rank of captain. The police union reported it does not contest Newport's promotion, but accuses the Police Commission of “unlawful behavior” by refusing to turn over records pertaining to his promotion.

It seeks all original and final written materials relative to the process, including score sheets for all three candidates, audio recordings, electronic communications, notes and the scores from each promotion-panel member.

The PELRB published a pre-hearing "memorandum and order" summarizing the case and noting the city denies the allegations and "asserts, among other things, that it has the exclusive management right to evaluate and promote employees." The city argues there is nothing in the union's collective bargaining agreement that entitles the union to the materials it seeks, according to the PELRB memo. 

The city lastly argues, "the documents requested by the union are confidential personnel records exempt from public disclosure" under the Right to Know Law. It's the same argument the same police union cited when it successfully fought disclosure of an arbitrator's report pertaining to fired officer Aaron Goodwin. The Portsmouth Herald brought the Goodwin-disclosure case to the Rockingham County Superior Court where Judge Amy Messer ruled the report is not a public document because it's a personnel record.

The union now claims that by failing to turn over its requested information about Newport's promotion process, the city is denying timely access to the grievance procedure, thereby interfering with employee rights. It asks the PELRB to order the city to produce the requested materials immediately.

The new PELRB memo states the city is "ready to produce most of the material requested by the union," but "refuses to produce any personal notes made by a commissioner who was involved in a promotional process."

A two-hour hearing is scheduled for March 19 at the PELRB office in Concord.

Newport’s promotion was announced in July and created a second captain’s position in the Police Department command staff. Through attorney Peter Perroni, the union’s complaint states its “remedy requested” from the PELRB is that the Police Commission “cease and desist from unlawful behavior.”

The Police Commission is represented by attorney Tom Closson, who said he could not comment on a pending matter.

The Ranking Officers Union claims the Police Commission’s actions violates state law (RSA 273-A:5) pertaining to public employee labor relations, citing the following portions of that law:

* To discriminate in the hiring or tenure, or the terms and conditions of employment of its employees for the purpose of encouraging or discouraging membership in any employee organization.

* To refuse to negotiate in good faith with the exclusive representative of a bargaining unit, including the failure to submit to the legislative body any cost item agreed upon in negotiations.

* To fail to comply with this chapter or any rule adopted under this chapter.