Proposing a Monday Night Massacre…
Edited for Clarity
This is a developing story, more details will be added when we have them.
SPRINGFIELD—In defiance of Constitutional concerns and contractual obligations, at-large Councilor Jimmy Ferrera will introduce an ordinance Monday that would cancel existing waivers and potentially lead to a flurry of terminations and litigation against the city.
A new draft ordinance obtained from City Clerk’s office and to be placed onto the Council’s Monday agenda includes language that mirrors the demands Ferrera has made of the residency ordinance including swift termination of employees already holding waivers and restricting job postings to residents. Other proposals in the ordinance have not been articulated by Ferrera before, but are consistent with his hard-line, but impractical approach to the issue.
Ward 2 Councilor Mike Fenton, the Chairman of the Residency Committee, said he had not heard anything about the ordinance beyond Ferrera’s prior comments on the subject during meetings. An email to Ferrera seeking comment had not been returned as of posting.
The thrust of the ordinance appears to be the rescission of waivers granted to existing employees. Those waivers have been described by both Human Resources Director Bill Mahoney and opponents of Ferrera’s proposal as a contractual term of employment and therefore not subject to repeal on the city’s whim. During the debate on a measure to tighten, but not fully repeal the waiver process in the city, Ferrera had demanded an amendment that would have permitted repeal of existing waivers, but would have carried the same legal risks as the current draft.
Mayor Domenic Sarno vetoed that proposed ordinance July 22 citing it as an infringement on his authority as mayor and, more broadly implying that any residency ordinance was largely unconstitutional. Sarno relied on the legal opinion of City Solicitor Ed Pikula who described requirements that employees be city residents as violating the Privileges and Immunities Clause of the Fourteen Amendment the United States Constitution.
That area of Pikula’s opinion focused mostly on the ordinance as passed by the Council, albeit using court decisions that did not actually back up his assertions. However, the legal opinion was originally requested by Ferrera before the amendment stripping out the grandfather clause was defeated 5-7. Consequently, Pikula also offered analysis on whether or not Ferrera’s amendment was valid.
Pikula pointed to the “Contract clause” of the US Constitution that forbids states (and by extension their political subdivisions) from enacting laws “impairing” the “obligations” of contracts. The clause has been interpreted to prevent states from passing laws that would get themselves out from contracts they have agreed to.
The language in the draft ordinance would cancel the existing waivers this January, which are largely seen by the city and almost certainly by the employees as a condition of employment with the city. Consequently, any employee with the city that holds a waiver would be summarily terminated January 1 if this ordinance were enacted.
Sudha Setty, a professor of law at Western New England, said it would be difficult to gauge the outcome because there are so many factors that vary from employee to employee. If an employee’s is employed for a specific amount of time then, “They have a term of employment” and “it would be a violation of their contract to change the residency requirements,” she said. In other words, waivers for a specific duration would be breached in violation of the contract clause or under state contract law alone.
However, if an employee were at-will with an indefinite waiver, an employee‘s case for breach may be harder. “Those terms of employing can change at any time,” Setty said, but employees may find protection elsewhere like in an employee handbook or state law.
It is far from certain that Ferrera could secure the seven votes needed for passage and almost certain he would be unable to find the nine votes needed to override the inevitable mayoral veto. Although Ferrera is a far way from passage of the ordinance, the Law Department already may see severe consequences for the city. The department refused to endorse the ordinance as to form due to its repeal of existing waivers.
One outcome, assuming Mayor Sarno agreed to enforce the ordinance at all, would be a court would issue an injunction prohibiting the city from enforcing that clause of the ordinance. However, it is just as possible that an employee could sue for breach of contract in anticipation of enforcement, which could subject the city to thousands of dollars in damages.
Additionally, the short timeframe may make it impossible for many such employees to secure arrangements to move into the city they so desired. Typically, non-resident employees that agree to move into the city are given a six month waiver to do so and the Council has appeared amenable to etching that into ordinance and extending it to a year.
Setty also said, an employee could argue reliance under contract law such as a decision to buy a home or make other plans relying on the waiver. “The real question is one of reasonableness,” Setty said, that is was the employee’s reliance on the waiver’s assurance reasonable. If so, the city would likely be liable.
Other provisions of the draft may be less financially risky for the city, but are of debatable value. Some like a provision that the city not allow for collective bargaining contracts that contradict the residency ordinance already exist in the present ordinance. However, such language has no force and effect as the state collective bargaining law vests full negotiating power with municipal executives, including the right to reach agreements that supersede ordinances.
Another provision in the draft may begin to traipse into the same areas that Pikula questioned in the ordinance the Council passed in July. The wording prohibits the Human Resources Department from posting jobs for non-residents and only opening up to non-residents if not city residents apply.
This measure appears designed to appeal to Ward 1 Councilor Zaida Luna, who seems to back Ferrera’s immovable position on the apparent premise that it benefits her community. However, Luna’s public comments have been minimal and therefore it is impossible to know if she is aware that an uncompromising, yet unenforceable ordinance maintains the status quo and does not mitigate unemployment in Ward 1 and among Latinos.
This may begin to impinge upon the Privilege & Immunities Clause again. The US Supreme Court has held that government employment is not a right of all Americans, as opposed to employment in general, which the court has held is. However, denying a non-resident to access to the application process may trigger constitutional scrutiny.
The provision would also appear to frustrate one of the purposes of the ordinance originally. The residency rule was written to encourage well-qualified professionals and other applicants to move into the city and bolster the tax base. Ward 6 Councilor Ken Shea alluded to this at the August council meeting.
Other components of the draft ordinance include punishments for department heads that attempt to hire non-residents.
The intrigue and apparent decision by Ferrera to avoid the Residency Committee’s seems odd since he instituted the Committee himself with Fenton as Chair, but Council staff have no record of his attendance. His objections to the ordinance the mayor vetoed and the council failed to override were not raised until June, on the day that final passage of the ordinance was planned. Another override vote is also planned for Monday.
The final vote was only delayed when Councilor Luna invoked Rule 20 which terminated debate on the matter until the next meeting. Her reason for doing so were and remain unclear. At the next meeting, Ferrera presented his amendment, but was called out for not bringing the amendment to a meeting of the residency committee.
The Springfield ordinance is often compared to the Boston ordinance. While touted as an out and out success in comparison to Springfield, the rule there too has been fraught with problems according to various press reports.
The Boston ordinance dates to 1976 like Springfield and was last amended in 1994. Springfield’s 1995 ordinance, which is the meat of today’s ordinance was written by Judge William Boyle, now a District Court judge and appears to have drawn some inspiration from the Boston’s 1994 version.
The current Boston ordinance shares some features with the draft, including the penalty for paying wages to a non-resident. Boston requires employees be residents on the first day or work as the draft Springfield ordinance would, but permits anybody regardless of residency to apply for a job.