A Mayor Called Sue(d): Briefs Filed, Sarno & Council to Rumble on Police Commission…
A Mayor Called Sue(d) is an occasional series on litigation over the Springfield Police Commission
The Springfield City Council’s suit against Mayor Domenic Sarno will reach a key point Tuesday when lawyers for both face off—virtually—before a judge. For years, the mayor had refused to implement an ordinance reviving the Police Commission, claiming it violated his powers as mayor. Then in October, lawyers for the Council, filed the complaint against the mayor. That has forced him to summon more than legal chest-thumping to justify his unilateral abrogation of a duly passed law.
Whether a judge agrees or not is one thing, but the mayor and his lawyers are not offering anything new. Oral arguments next week have come with briefs both sides have filed on a cross-motions for summary judgment. Unlike a civil rights or personal injury case, the Council’s suit will turn almost entirely on law. That explains the rather prompt movement to arguments on the merits.
At issue is the Council’s right to reorganize city government, namely, the leadership of the Springfield Police Department. In 2005, the Finance Control Board abolished the Police Commission that had overseen city police for a century. In its place, it put a sole commissioner in charge of the department. After the Control Board itself dissolved, a Council majority began clamoring to revive the Commission. Sarno, who once shared that sentiment, demurred, consigning such that resurrection to the dustbin.
In 2016, a series of scandals at Pearl Street—and new Council membership—provided momentum to override the mayor. Instead of accepting this, Sarno, armed with City Solicitor Ed Pikula’s advice, argued that the ordinance impermissibly pinched his right to appoint the head of the department. That the Commission became the head of the department and Sarno could appoint it was beside the point.
The issue has remained effectively at a stalemate since then. Amid the United States Justice Department’s investigation into the Police Department, Sarno has forward proposals to reverse the Commission’s revival. However, these bills quickly met the Council shredder. This suit only became possible when the Council’s now-lawyers, Michael Aleo and Thomas Lesser stepped forward to offer their services pro bono.
The Council voted to sue in September and shortly thereafter, Aleo and Lesser filed the complaint in Hampden Superior Court. Ostensibly because Pikula could be a witness, the city hired Michael Angelini and his Worceter-based law firm Bowditch Dewey to represent Sarno.
The briefs both sides have filed follow the contours of the political debates. However, they develop some of the legal arguments a bit more.
In its memorandum, the Council argues that its right under the charter to “reorganize, consolidate or abolish departments, in whole or in part; transfer the duties, powers and appropriations of one department to another, in whole or in part” grants the body the authority to revive the Commission and place it atop the Police Department again.
The brief goes on to cite the statutory history of the Police Commission. That arose under a series of early 20th century special acts of the legislature and related court decisions. That was the status quo until the Control Board acted and the Council thereafter shifted course. The Council concedes a confirmation provision in its 2016 ordinance violated the charter. The body stripped it out in 2018.
The Council rests this argument on a 1982 state appeals court case that upheld the power of the Fitchburg City Council to write ordinances to establishing powers and authorities within a department. In that situation, it was also a police department. The Council also cites a 1909 state law empowering Springfield to establish a police commission.
Municipal interbranch litigation is relatively rare in Massachusetts. The most plentiful caselaw is often decades old. More recent precedent is usually, at best, tangential or the case at hand involves a city and a third-party litigant. A notable exception is a string of Boston cases. The mayor cites these liberally in his briefs, although their utility is questionable. Unlike Springfield, Boston’s city charter more explicitly limits its council’s reorganizational power or the cases address mayoral staff not city departments.
In his motion for summary judgment and opposition to the Council, Sarno claims councilors cannot dictate who runs a department. After several paragraphs of throat-clearing about strong-mayor government, Sarno’s brief notes that he entered into an employment contract with the current commissioner, Cheryl Clapprood. That, he continues, supersedes the ordinance.
“The Contract prevails ‘over any conflicting provision of any local personnel by-law, ordinance, rule or regulation.’ the mayor states.
The Council counters this argument noting the chronology. The current ordinance passed the Council in late 2018. It was not until the following September that Clapprood’s contract was signed. Therefore, it cannot be grounds to invalidate an ordinance.
“Otherwise, a Mayor could simply invalidate any lawfully enacted Ordinance by fiat, i.e., later signing a contract obviating its terms. Such power is better suited for a monarchy than a democracy,” the Council responds.
Rhetoric notwithstanding, the Council argues that the validity of Clapprood’s contract is immaterial. At issue is the Council’s authority to legislate.
To counter that authority plainly in the charter, Sarno asserts that while the Council can reorganize, abolish or create departments, only he can decide what a department head is, not only who holds that office.
“Undoubtedly, the Mayor could decide to appoint a group, or even a ‘Board,’ as the head of the Police Department, but that is his choice to make, not the Council’s,” Sarno’s brief says. “It is the Mayor’s decision, and his decision only, whether to appoint one person, two persons, or twenty persons to be the head of Springfield’s Police Department, as well as whether and how to contract with that person or those persons.”
Sarno makes an extraordinary claim here. He in effect claims the power to sprawl or shrink the leadership of departments on a whim, if subject to appropriations.
The mayor cites a Boston case, although, as the Council later points out, that precedent from the Hub concerned employees of the mayor’s office. Both the Boston and Springfield charters specifically exclude Council interference in employment in mayors’ offices. Departments are a different and distinct matter.
Another case the mayor cites concerned Agawam under its former government. That dispute centered on Council confirmation of manager-appointed officials. The manager’s right to appoint without Council confirmation was not explicit, but a court found the Agawam Council could not assert confirmation either. Sarno likens this to his purported but not right to determine whoever—or whoevers—he wants as department head because the Council’s power here is not explicit.
The Council’s reply to this argument slaps the mayor for misconstruing the Boston cases. Both parties observe that Boston’s “Plan A” government is not the same as “Plan A” found in Springfield and other Massachusetts cities’ charters. The Council then dismisses the Agawam case as inapposite, differentiating confirmation of department leadership from composition thereof. It then notes that a landmark 1963 case on mayoral authority—originating from Springfield, appropriately enough—concerned mayoral appointment and removal powers from a board.
To undermine the Fitchburg case, the mayor argues that city has a different charter, namely a weak(er)-mayor government. However, the Council replies that while mayoral appointees are subject to confirmation in Fitchburg, both Springfield and Fitchburg’s charters endow their councils with the same legislative powers to restructure departments.
There are other issues in the brief that are somewhat ancillary to the Council’s central lawmaking authority. The parties scuffle over whether the Council can establish standards for members of the Commission, for example. Echoing his assertion of power regarding what a department head is, the mayor argues the Council cannot establish qualifications either. The Council argues caselaw clearly supporters its position.
In a reply brief filed this week, Sarno takes another shot at the Council’s power to reorganize department heads versus departments themselves. He also again elevates his right to contract in contravention of city ordinance. The contracting power rests on a separate state law on cities and towns entering into employment contracts with their top cops. Clapprood’s contract should win out because grant her powers that the Police Commission ordinance delegates to the dormant Commission.
Aleo and Lesser have not filed a reply to this on the Council’s behalf. Yet, one problem with this argument is the position Sarno contracted Clapprood to take simply did not exist in 2019.
While he raised it in his answer to the initial complaint, Sarno has mostly discarded the argument that the Council’s lacks standing to sue. The mayor questions the Council’s right to sue in a footnote, but dedicate little ink to it.
In subsequent briefs, the Council argues that countless Massachusetts councils have filed lawsuit. Even if the mayor is right, the Council notes it could refile as a 10-citizen suit. No court would doubt that standing.