Springfield Casino Ethics As More Than a Game of Chance…?
SPRINGFIELD—Fresh from being sworn in for a second year as the City Council president, Ward 2 Councilor Michael Fenton kicked off the election year legislative session with a casino ethics ordinance that has turned heads across the state and the nation.
The ordinance, an amendment to the city’s Ethics Code and echoing gaming state legislation, would prohibit a city employee or official from employment with the holder of the commonwealth’s Region B gaming license for several years. Last year, MGM Springfield was awarded the right to operate a gaming facility in Region B which covers Western Massachusetts.
Fenton’s nomination and selection as president last Monday were confirmed by a unanimous Council, mirroring similar votes taken at the Council’s informal caucus last month. The event drew public safety officials, Mayor Domenic Sarno, Rep. Ben Swan. Senator Eric Lesser, Rep. Jose Tosado and Rep. Carlos Gonzales, all of whom took their oaths later that week, also attended.
Fenton struck a defiant tone in his speech, taking on the city’s naysayers and critics—naming the commentariat on news sites—for their attitude about the city. Instead of merely chastising that crowd, Fenton highlighted specific good residents and city workers perform on a regular basis. Springfield Police Officer Raul Gonzalez, who received a citation for bravery, valor and dedication following a 2011 shootout, administered the oath to Fenton, acting as a living embodiment of that spirit.
“Let it be known that the days of the cynics and the suburban internet commenters controlling the discussion of Springfield are over,” he said as part of prepared remarks.
While Fenton alluded to other initiatives in his speech, including city employee residency and a special subcommittee on neighborhood businesses chaired by at-large Councilor Kateri Walsh, the ethics ordinance dominated municipal conversation. In addition to local media reports, an Associated Press report on Fenton’s ordinance was consequently picked up by other outlets across the nation. News reports described Sarno as mum on the issue.
— Philip Marcelo (@philmarcelo) January 7, 2015
Talk of top officials like Sarno receiving a casino job is rare, but not unheard of despite his plans to seek reelection this year. Similar speculation has ebbed and flowed about councilors. The mayor and councilors would be barred from casino employment for five years. Those most affected short-term would probably be non-elected policy officials such as lawyers, planners, financial officials and the like who would be barred from working for MGM or any future Region B operator for two years.
The state Gaming Statute does not bar local officials from taking jobs with gaming companies, but it does bar Massachusetts Gaming Commission members and staff from taking such jobs for a period of years or “cooling-off period.” It is from this section that Fenton derived much of his ordinance. Because the mayor is the bargaining agent for the city and councilors set land use policy, both might be thought of as analogous to the commission members.
The casino law does not have a cooling-off period for local officials, but such a provision of the state Ethics Law applies. Municipal employees (which for the purposes of Ethics law, elected officials are no different from appointed ones) cannot, for a period of one year, take employment with a third party if they serve as an agent before that municipality.
Due to the host and surrounding community agreement process, elected officials and regular employees could not take a job with gaming companies involving regular interaction with or advocacy before city boards, commissions or officials. However, such a former city employee could take virtually any other job, including one that still draws off of their knowledge and experience within City Hall.
A spokesperson for the Gaming Commission, citing the local nature of Fenton’s ordinance, declined a comment, but did confirm the post-employment restrictions for gaming commission employees. Questions as to laws about restrictions on location officials were referred to the state Ethics Commission.
With Sarno thus far not talking about how he would approach the ordinance, the immediate test remains whether it could get the 7 votes for initial passage. The politics of the issue—minimizing corruption with an industry that has gone to great pains to not appear corrupt—make it difficult, though not impossible to envision it not reaching that threshold.
However, even if Sarno signs the ordinance (or the Council overrules by 9 votes), it may face additional problems. The most lethal is whether it would run into the problem of preemption. While Massachusetts is a home rule state, meaning municipalities have constitutional rights to self-determination, these powers are often limited or preempted when in conflict with state policy.
Generally speaking, local rules that conflict with a statute of higher authority, in this case state law, cannot stand if they frustrate the purpose of the higher law. Under Fenton’s casino ethics ordinance, there is no direct conflict with the casino or ethics laws. An argument could be made that the legislature intended to exclude such post-employment restrictions, but a court is unlikely to buy such a theory. A municipal casino ethics ordinance would be no different than the city’s existing ethics ordinance, acting an extension of state ethics and lobbying laws and only within Springfield.
Therein may lie another problem. Since being established in 2009 at the behest of then-councilors Patrick Markey and Bruce Stebbins (now a Gaming Commission member), the Ethics Commission has essentially been moribund.
The Commission consists of appointees from the mayor, Council and School Committee. Only the Council’s appointee, Thomas Walsh, selected by former Council President Jimmy Ferrera, has been named, thus denying the Commission a quorum. While the City Clerk is charged with collecting the data required in the ordinance, it is the Ethics Commission that enforces noncompliance. Without other appointing authorities naming members, enforcement of the casino ethics ordinance would, too, sit idle.
This problem may ultimately be less complicated than the question of preemption. A 10 citizen suit for mandamus could be filed against appointing authorities, namely the mayor and School Committee. Alternatively, either the mayor or School Committee could make an appointment, establishing a quorum for the commission.
However, proponents of the ordinance have also indicated that the purpose is not just enforcement, but to declare a policy for the city. Once given the force of law, the question becomes whether or not a publicly traded company like MGM would be willing to employ anybody in violation of the ordinance.
Whatever its fate, the ordinance is the first of its kind in the commonwealth and notable for Springfield, which rarely breaks ground legislatively other than its 2011 foreclosure ordinance, which was largely struck down last month as preempted by state law. Despite possessing the legal strength to produce it, the Council usually does not adopt policy of this caliber. Mayors tend to act via executive order unless to do otherwise is illegal or impractical.
Coming out of the gate with an item of this magnitude infers a robust session—in an election year.