Richard Howe Substack: Jan 28, 2024

The Lowell City Council met on Tuesday night with a potentially long agenda being handled in an expeditious 2.5 hours. Because of last week’s ruling by the City Solicitor that all unanswered motions from the last Council session died at the end of that session, this week’s agenda contained a multitude of motions that had already been approved but had not been answered. Fortunately, these were all “bundled” together and re-affirmed without any drama or discussion.

A couple of new motions about old matters yielded some interesting discussions:

Councilor Corey Robinson proposed that the City Council explore obtaining “outside legal counsel on retainer.” This was endorsed by a 6 to 4 vote with Councilors Sokhary Chau, John Descoteaux, Erik Gitschier, Rita Mercier, Vesna Nuon, and Robinson voting YES and Mayor Dan Rourke and Councilors John Leahy, Kim Scott and Paul Ratha Yem voting NO (with Councilor Wayne Jenness absent).

This is not a new issue. The late George Anthes, a former City Councilor and local media personality, long advocated this. The argument for doing it is that the City Solicitor works for the City Manager, not directly for the City Council, so when it comes to providing legal advice and interpretations, the Solicitor might have conflicting loyalties since the legal interests of the City Manager and the City Council might not coincide.

Although Robinson filed another version of this motion long before the current City Solicitor was hired, I do sense a bit of “lawyer shopping” in this renewed effort. Several times in recent weeks, the Solicitor has sometimes issued opinions that some Councilors clearly disagree with. Not surprisingly, those Councilors supported this motion.

There seemed to be a sense among supportive Councilors that having another lawyer on speed dial might yield snap decisions during Council meetings that are more to their liking, an attitude that ignores what goes into a lawyer rendering a legal opinion. To be fair to the lawyer involved, and to get the best opinion, asking for a legal opinion shouldn’t be treated as a pop quiz, which is how some Councilors treat these requests. For this to work would require the “outside counsel” to be present at all Council meetings (either in person or remotely) and spend substantial time researching potential issues that potentially could arise from that meeting’s agenda.

The better approach both fiscally and legally is to stop treating the City Solicitor as a referee to be consulted on a whim during a meeting with the expectation of a complex (and correct) legal opinion in seconds.

Perhaps one of the reasons we’re at this point is that no one on the City Council is a lawyer. While having eleven lawyers on the Council would not be a good thing, having one or two would be beneficial. Each Councilor brings something from their own background, training, education, and experience to the office, and having diversity in that combination would make for a better Council.

For those curious, I think the last lawyer to serve on the Lowell City Council was Bill Martin who did not run for reelection in 2015. In the past 50 years, I think the Council elected in 1999 had the most lawyers with four: Eileen Donoghue, Richard Howe Sr., Bill Martin, and Dan Tenczar.

While the city has long employed outside legal counsel to handle complex litigation and other niche matters, the impracticality of what this motion proposes should cause it to quietly fade away.

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Newly elected Councilor John Descoteaux had a motion requesting an update on the city’s agreement with the Lupoli Companies regarding new construction in the Hamilton Canal District. The city has an existing agreement by which the city conveyed several parcels in the Hamilton Canal District to the Lupoli Companies on the promise that it would construct two buildings and a parking garage within a set time (with that deadline passing months ago). While the parking garage is up, it is not completed. More importantly, there is zero progress visible on either of the promised buildings.

Other Councilors had asked about this during the past Council session. The response then was that Lupoli had proposed amending his agreement with the city, that he was in negotiations with the Department of Planning and Development about that, and that the Council could expect an update in February.

What distinguished Descoteaux’s remarks on Tuesday from prior meetings was a clear willingness to walk away from Lupoli if the terms of the agreement aren’t met or amended in a way that remains reasonably favorable to the city. Descoteaux also pointed out that by allowing Lupoli to construct a privately-owned parking garage adjacent to the Lowell Justice Center, the city undercut the revenue stream from Court patrons in the city’s own Hamilton Canal parking garage.

A report from the City Manager in response to Descoteaux’s motion should be forthcoming.

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Councilor Vesna Nuon asked for an update on the “Computer Aided Dispatch” system in Lowell Police cruisers. According to Nuon, this system was knocked out by last April’s cyberattack on the city but has yet to be restored. As he described it, the system seems important for better policing and for officer safety, so it will be interesting to learn why it is taking so long to get it back online.

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Two motion responses from City Solicitor Corey Williams addressed issues I’ve written about before. The first was for “best practices for adding censure of a Councilor to the Council Rules” while the second discussed the procedure for filling a vacancy on the Council that occurs during a Council term. Both were referred to the Council’s Rules Subcommittee for further discussion.

Regarding censure, the memo began by defining it as a public reprimand by the Council of one of its members for “actions that run counter to the [Council’s] acceptable standards of conduct or behavior.” Also, a vote to censure would not remove the offender from the Council; it would just make the censure vote part of the public record.

Williams pointed to a Haverhill City Council rule on this topic. To be filed, six members of the (Haverhill) Council must sign a written motion that specifies the egregious behavior under scrutiny. That writing must be filed in advance with the City Clerk for it to appear on the Council agenda In other words, such a motion could not be made spontaneously during a meeting). Williams also notes that in Haverhill, five Councilors form a quorum, so requiring six to file a motion to censure means more than a simple majority of Councilors would be needed.

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Regarding how to fill a Council vacancy, Williams confirmed that since 1954, the rule under Plan E is that the defeated candidate with the most votes would fill the seat.

If the vacancy occurs in a seat that was uncontested in the last election, Williams states that Massachusetts General Laws chapter 43, section 102 would govern. That empowers the remaining members of the Council to fill the seat by a majority vote. It goes on to say that if that doesn’t happen within 30 days, the Mayor may fill the vacancy, and if there is no Mayor, the Vice Chair, and if no Mayor or Vice Chair, the senior member of the Council would make the selection.

I haven’t studied the applicable law to know the correct answer other than to say that prior legal opinions on this question for some reason found MGL c.43, s.102 inapplicable to Lowell. Consequently, several of our state representatives have filed bills in past legislative sessions that would create a different mechanism for filling City Council vacancies. Those bills have not yet been enacted, but they called for a joint meeting of the City Council and the School Committee to vote for the individual who would fill the vacancy which is the procedure followed to fill Lowell vacancies on the Vocational School Committee.

While Williams may be correct in his interpretation, the fact that prior Solicitors who have looked at this reached a different conclusion would make it risky to simply adopt Williams’s interpretation. The problem is that if it turns out to be wrong – and I’m not saying that it is – actions taken by a Council that included a member that was potentially appointed illegally would risk being invalidated afterwards. That would cause considerable chaos with appropriations, land transfers, contracts and other things.

As I discussed at the beginning of this newsletter, lawyers can reach different conclusions on how a law is to be interpreted. That happens all the time. The only way to know for certain in a close case like this is through litigation and the appellate process. For that reason, it’s likely best for our legislative delegation to continue pursuing passage of the Home Rule bill previously proposed to create some legal certainty in the vacancy-filling procedure.

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