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Editorial: Your Own Counsel Will You Keep…

Does what happens here really matter if no one can defend it? (WMassP&I)

Does what happens here really matter if no one can defend it? (WMassP&I)

It was a little more than two weeks ago that the Springfield City Council did something it so rarely does. The body voted 12-1 to both assert the power it is imbued—power that it actually holds exclusively—and harness it for a cause that is not without controversy. The next day Mayor Domenic Sarno, wielding his own power, attempted to snuff out the Council’s exercise.

This course of events mandates an examination of both the Council’s capacity to be a check on city government and, more importantly, whether its actions have any legitimacy at all. Political jokes aside—and we have imbibed in more than a few—the Council is not impotent and must not only continue exercising its powers, but be able to defend their use. The law prohibits non-human entities from going to court unrepresented. That means the Council must have its own legal counsel.

The event, which precipitates our call here, began in 2012 when the Zoning Board of Appeals ruled Palmer Renewable Energy needed a special permit to start building its wood-fueled biomass plant. The ZBA overturned PRE’s building permit at the behest of activist Michaelann Bewsee and the City Council. As the author of the city’s zoning ordinance, the Council’s has a right to see the city’s land use code administered properly. PRE subsequently sued to reverse the ZBA and an outside attorney was hired to defend the ZBA’s action. This summer PRE won in Land Court.

Ed Pikula, Springfield City Solicitor, serves at the pleasure of the mayor, but runs the Law Department for the whole city. (via Twitter/@attyemp)

But why was outside counsel needed at all? The City has a Law Department run by a distinguished City Solicitor and several good, sharp attorneys. Ah, but the Law Department advised Building Commissioner Steven Desilets to issue PRE’s building permit and then defended that action before the ZBA. To defend the city’s ZBA from PRE’s later suit would present a conflict. The whole department was precluded.

It was not politically viable for the mayor to refuse to defend the ZBA by rejecting funding for an un-conflicted lawyer. After all it and the city were the defendants. When the court overturned the ZBA’s decision, the tables were turned. Appealing would mean going on offense for the ZBA or the Council, which still has appeal rights. The Council voted to appeal, despite fears it could not get the money to hire an appellate attorney.

Without an attorney it might need to withdraw its appeal. Council President Michael Fenton, an attorney, has been authorized to file the Council’s notice of appeal, but will not litigate the appeal itself. Bewsee’s appeal, which Sarno cited in his decision to deny funding, would go forward. Yet that would still mean the Council have to give up the fight to preserve its own statutory rights in the process.

Like all levels of government, the city of Springfield has separation of powers. Land use in particular is defined not by the city’s charter, but under state statutes that allow municipalities to write and enforce zoning laws. Those laws give that power squarely to municipal legislatures, which can act without any input from a mayor. This likely gives rise to the popular perception among present and former councilors that the body is primarily a land use body. It is not, but more on that in a moment.

Council-Mayor relates are not at their lowest ebb, but Sarno's decision to withhold funding for the Council's appeal has aggravated a complex relationship between the two branches. (WMassP&I)

Council-Mayor relations are not at their lowest ebb, but Sarno’s decision to withhold funding for the Council’s appeal has aggravated a complex relationship between the two branches. (WMassP&I)

The mayor, however, controls the origination of municipal expenditures. The Council must approve funds before they become law, but they cannot change their purpose nor appropriate money on their own accord. Normally this dynamic would not be a problem but for the Law Department’s decision—at Sarno’s urging some have suggested—to advise Desilets to issue the building permit after the Council revoke PRE’s special permit pursuant to their land use powers.

It seems particularly offensive that a power the legislature chose to vest in the councils, commissions and town meetings of the commonwealth be subject to abrogation by another branch of municipal government. This indignity merely displays an extreme example of how even the city’s checks and balances on the executive can be trumped by the executive’s caprice. Other examples exist.

Springfield is described as a strong mayor government. This label is true, but often overstated. In Massachusetts, virtually no councils are truly strong, although some mayors are weak (a city manager holds the power). In Springfield, a Plan A city, strong mayor includes not just the above spending powers, but also confirmation of appointees without council approval (except where otherwise stated in state statute), and broad hiring and contracting authority.

Believe it or not, they've got the power--if they choose to use it. (WMassP&I)

Believe it or not, they’ve got the power—if they choose to use it. (WMassP&I)

Still, the mayor’s powers do not entirely emasculate the Council, particularly in the City of Homes. Cities laboring under centuries-old charters like Holyoke or Northampton or functioning with relatively new revised home rule charters like Worcester or Westfield often have whole city departments etched into their governing documents. Springfield’s charter is actually quite Spartan. City ordinances, not the charter, give life to virtually the entire departmental structure of city government. The Council passes ordinances and can do so over the mayor’s veto by a 2/3 majority.

The mayor might not fund a municipal entity, but he and his appointees must obey the rules ordinance sets out for city departments. What recourse, though, does the Council have if its ordinances go unheeded? What if they want to write an ordinance to curtail the mayor or other executive, but the mayorally-appointed City Solicitor says no or provides no firm answer. There is no independent voice advising the Council on its powers and, if need be, fighting to enforce the body’s will.

This is not to cast aspersions on anybody in the Law Department, including City Solicitor Ed Pikula. While we are not shy about disagreeing with Pikula, we abstain from judgment of claims he does the mayor’s bidding or, more charitably, accepts the realpolitik of Sarno’s power to hire and fire the solicitor.

Nor do we question the character, competence or skill of assistant city solicitors assigned to the Council now or in the past. But even they would probably agree the job of Counsel to the Council would be easier if their only client were the Council and not the whole of the city bureacracy. Moreover, something sets the Council apart from the ZBA, or the Historical Commission or the Library Commission. The Council is a duly elected body representing the residents of the city—just as much as the mayor.

There will undoubtedly be pushback from such a proposal and the mayor could refuse to fund it. The ordinance creating such a position would need to be creatively designed to avoid the mayor appointing the Council’s attorney. These are ultimately political concerns, which cannot even be face until the Council passes such an ordinance.

The Boston City Council is by charter much weaker than Springfield’s. Comparisons between the two city’s legislatures must be done carefully. Indeed, the skeletal nature of Springfield’s charter might make it stronger by default than many councils in Massachusetts. (via wikipedia)

But let no one think creating such a position is beyond the Council’s power. If such a proposal went forward, expect a legal opinion saying the courts shut down a similar Boston proposal. Such comparisons are wrong. The Boston City Charter limits the power of that city’s Council to reorganize city departments without the Boston mayor’s assent. The Springfield City Charter places no such handicap on the Council.

It has been 50 years since the adoption of Plan A, concentrating power in the mayor. In that time, the Council has not been entirely ineffectual as a check on that power, but it does not have a sterling record. Indeed, realizing its full potential is the next logical step after the introduction of ward representation. To build the city that serves all its citizens and to formulate the policy that can lead Springfield out of the dark, the Council must fully embrace its power…and somebody must have their back when they do both during the debate and, if need be, in court, too.

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