A Mayor Called Sue(d): Judge Flannery Seeks, Receives Primary Sources…
A Mayor Called Sue(d) is an occasional series on litigation over the Springfield Police Commission and executive power in the city.
There are fresh filings in the Springfield City Council’s suit against Mayor Domenic Sarno over the Police Commission. Earlier this month, Hampden Superior Court Judge Francis Flannery ordered lawyers for the Council and Sarno to produce both ordinances altering the Police Commission from 1962 to 2005 and the underlying statutes they amended or referenced.
This is a key period in the battle over whether the Council can reorganize city departments. Sarno claims the city’s Plan A charter, specifically the appointment clause, grants him kinglike powers over not only whom he appoints—about which there is no dispute—but the structure of that leadership. Flannery’s timeline runs between the adoption of Plan A and the year the Control Board abolished the Commission.
In his March 12 order, Flannery sought “all of the ordinance(s), including effective dates, concerning what are referred to variously in the summary judgement materials as the Springfield Police Commission and the Board of Police Commissioners in effect from at least 1962 until the date of the 2005 order” wherein the Control Board abolished the Commission.
That order transferred the powers to a sole commissioner. In 2016, the Springfield City Council revived the old commission over Sarno’s veto.
Flannery also requested copies of ordinances the amending Police Commission ordinances changed and any other ordinances or statutes these ordinances reference. The nomenclature can be confusing. An ordinance is technically the enactment, by the Council, of a new local law. But the codification of those local laws are also the ordinances.
The order did not appear to be an invitation for the parties to relitigate their claims in court. The mayor’s attorneys editorialized about their position throughout the filing. The Council’s lawyers, Northampton attorneys Thomas Lesser and Michael Aleo, who signed this filing, mostly narrated the discovery of the records they produced.
Sarno’s lawyers open with an aggressive discourse about how the 1962 adoption of the current city charter “conclusively” resolved a century of struggle between the mayor and Council over the police department. By vesting him with appointment power, they argue, the issue was closed. Factually, that is an oversimplification. Those pre-1962 battles were about administrative control of the department, not its legislative design.
The mayor has retained Worcester law firm Bowditch Dewey to represent him. An associate, Andrew Bartholomew signed the brief, Michel Angelini, a firm partner, is lead counsel.
In any event, the mayor’s filing does articulate the relevant statutory history of Springfield’s Charter dating to 1852. It notes the now-sorta famous 1909 state law about the Springfield Police Commission that most Police Commission ordinances cite. However, this may be the only statute the mayor’s lawyers mention in their filing that meets Flannery’s request.
The gatling gun of assertions, however, would be harder to fire without familiar and constant references to the city charter, which featured prominently in both parties filings month ago. But the mayor’s lawyers do take a moment to level a somewhat novel argument to support their case.
The mayor’s lawyers claim the 1962 charter completely wiped away previous charter and its components. That includes the 1909 law and the charter modifications that allowed the Council to legislate about the Police Commission. With it, the Council’s power to legislate as to the “administration of police” or forming a board of police commissioners was voided. However, the 1962 charter does grant the Council the right to reorganize departments and it clearly recognizes the “legislative powers” of the City Council.
This assumption is not how the way courts always intuit charter revisions. They often look for either obvious repeals or later enactments that render previous powers void. Rarely do that state prior charters wholly dead upon adoption of new ones. Moreover, the Springfield City Charter today explicitly says that the city’s previous legislative powers—which the 1909 law would be—continue under the new charter.
The Council’s filing was far briefer and mostly listed findings online and in the Springfield City Library. Aside from the 1909 law and a copy of the Revised Ordinances of the City of Springfield of 1986, the Council only identified a 1984 ordinance to satisfy Flannery’s request.
As WMP&I reported in 2019, this Reagan-era ordinance abolished political party restrictions on police and fire commission appointments.
The mayor’s lawyers argue that this ordinance—and a technical one from 2003—were legally null at the time. The 1962 charter had wiped away the Council’s earlier legislative powers. Yet, only a few lines down, the mayor’s lawyers claim the Control Board was acting with the City Council’s power to legislate when, in 2005, it abolished the Police Commission and installed a sole commissioner to lead the department.
As a practical matter, as the filing notes, when it existed, the Control Board could act with all the powers of the mayor or Council. However, the mayor’s lawyers say the Control Board “[acting] pursuant to the City Council’s legislative authority under the Charter…also issued an Ordinance which prescribed that “all the powers of duties of the police commission of Springfield…are hereafter conferred and imposed upon said police commissioner.”
In the last round of briefs, the Council’s lawyers observed the mayor himself had flipped on the question of Council power. Sarno had sought Council approval to change the Fire Commissioner’s job qualifications. That was only a few years before he said the Council could not legislate anywhere near his appointments.
Much of what the mayor’s attorneys threw at the judge this week had already careened into Flannery’s lap long ago. Flannery’s order appears tobe an attempt to get a clear legislative history under post-Plan A. Stopping at the Control Board makes sense as its legislative power is not in doubt.
If the Council never modified the Police Commission between 1962 and 2005, then Flannery would have to weigh whether a practice had developed that Council action on this front was verboten.
But that is not the case. The Council has modified the Police Commission, significantly at least once in 1984. That could spell trouble for the mayor position, especially when paired with a fair reading of the charter. Moreover, it could explain the repetition of the claim that the 1962 charter booted the Council from legislation entirely.
There is no timetable for Flannery’s ruling. His request for this information nearly two months after oral arguments. That could mean he is near a decision and is requesting materials he could not access easily. In the alternative, he could be undecided. The fate of government power at 36 Court Street is as up in the air as ever.