A Mayor Called Sue(d) is an occasional series on litigation over the Springfield Police Commission

The hearing was remote, but the judge and courtroom were real. (WMP&I)

Lawyers for the Springfield City Council and Mayor Domenic Sarno jousted in a brief virtual hearing Tuesday over the so-far dormant Police Commission. The arguments echoed briefs each side had filed earlier this month. The Zoom-based encounter, however, added some theatricality, mostly on the part of the mayor whose written briefs otherwise lacked precedential panache.

What Sarno’s Worcester-based lawyer Michael Angelini lacked in law, he made up for in vehemence. In apocalyptic terms, he accused the Council and its lawyers of “emasculating” the mayor and depriving citizens of the government they chose. However, the latter could easily apply to Sarno. Thomas Lesser, the Council’s lead attorney, emphasized the plain language of the city charter, namely the Council’s prerogative to reorganize city departments via ordinance.

Hampden Superior Court Judge Francis Flannery presided over Tuesday’s remote hearing. Masked, he was the only participant to physically appear in a Springfield courtroom.

At issue is an ordinance that revives the Police Commission to oversee and govern Pearl Street. The Commission had existed for a century until the Finance Control Board abolished it in 2005. In the commission’s place, it established a sole commissioner. Amid a tide of scandal at the Police Department, the Council pushed through the ordinance over the mayor’s veto in 2016.

However, the mayor subsequently ignored the ordinance and refused to appoint the commission. Rather, he signed a new employment contract with the current commissioner, Cheryl Clapprood, in 2019. During the tenure of Clapprood’s predecessor John Barbieri, there was some debate as to whether the Police Commission ordinance could take effect during his contract. After Barbieri was catapulted out of office under still-unclear circumstances, this doubt should have evaporated.

At Tuesday’s hearing, Lesser, as plaintiff’s counsel, spoke first. As he and co-counsel Michael Aleo did in their filings, Lesser emphasized the Council’s power to abolish, create and reorganize city departments “in whole of in part.” That, he suggested, gave the Council all the necessary authority to return the Police Commission from the land of misfit bureaucracy.

Attorney Tom Lesser before the court of public opinion alongside councilors last June. (WMP&I)

However, Lesser sought to dismantle the mayor’s arguments one by one. Among them was that Clapprood’s contract bars the Council’s resurrection of the Commission.

“The mayor cannot nullify that ordinance with a contract he signed a full year later,” Lesser said.

Lesser added that the relevant statute speaks only to personnel concerns and does not reach questions of appointment within a municipality. Instead, it explicitly sidesteps appointment powers. The Council’s attorney noted a landmark decision which found no difference between a board and department—thus the Council could reorganize them. Lesser noted the mayor cited the same case, but like much of the precedent in Sarno’s briefs, it was inapplicable.

“None of the mayor’s case law supports his position,” Lesser said. He urged Flannery to see for himself and read the mayor’s citations.

It did not take Angelini long to claim the Council lacked precedent, however, at times veering into the overwrought. Still, he never directly answered Lesser’s claim about caselaw and instead stitched together an argument premised on reading curated segments of the charter in harmony. In short, Angelini argued, the Council was the one trying to rewrite the charter.

Through the intercession of Attorney Angelini, Sarno hopes to retain a great power. (via bowditch.com)

As he argued in briefs, particularly in a recent reply, Angelini claimed the mayor’s power to appoint was unfettered. This argument extends beyond Sarno’s right to appoint without Council confirmation, which nobody disputes. Rather, Angelini said the Council cannot interfere at all, including determining the actual form of departments’ leadership.

Angelini added another element, pointing to a section of the charter about certificates of appointment. Because it talks about an “office,” he said, the Council could not mandate a multi-member board. But this was a pained argument as every seat on a board is itself an office consistent with what is, essentially, a record-keeping statute.

Also vexing was Angelini’s accusation that the Council’s efforts were a “bald attempt” to fire Clapprood. Yet, he also indicated that a mayorally-appointed Commission could simply choose to retain her as Pearl Street’s day-to-day leader. In their briefs, the Council’s lawyers had specifically disclaimed any ulterior HR motives like Clapprood’s ouster. Yet, neither has the Council denied the mayor could ultimately get whomever he wants as chief, to which the sole commissioner would revert under the ordinance.

Angelini wrapped by attempting to rebut Lesser’s takedown of the mayor’s contractual arguments. Sarno’s lawyer asserted that the mayor’s right to appoint itself made the contract valid even if the parties signed it after the ordinance. It was the mayor who originally raised the police contract law.

Judge Flannery had no questions. He gave the parties a week to submit post-argument briefs. A ruling will likely not occur before then.

In a brief interview, Angelini told WMP&I that there were no surprises in the hearing.

Judge Flannery in pre-judicial times while at his old law firm. (via parkerandogrady.com)

“The judge has the ability to read the papers and consider the arguments,” he said.

Lesser agreed, though he noted the lack of drama, substantively if not rhetorically, on Sarno’s side.

“I don’t think the mayor’s office had anything new to say other than what was in their brief,” he told WMP&I.

Lesser did emphasize a central element is not in dispute. The mayor can appoint whoever he wants. The Council only argues they can create, abolish or organize the leadership of city agencies.

“They keep on repeating this non-sequitur that the mayor is being deprived of the power to appoint the head of the police department when, in fact, the mayor has the absolute power to appoint whoever he wants as members of the board of police commissioners,” Lesser added.

Given his silence, it is hard to know whether Flannery is leaning one way or another. However, his ruling could reverberate broadly.

Though not central, a related issue is the Council’s right to set qualifications for the leadership of department heads. As Lesser noted, the Control Board established qualifications for the sole commissioner. Many other city agencies’ leadership positions are defined and governed by ordinance. Were Sarno to succeed, the validity all such ordinances would be in jeopardy.

The implications could extend beyond Springfield. Many Massachusetts city charters are similar or identical to Springfield’s. Sarno’s argument turns on over-interpreting the confirmation ban to mean the Council cannot dictate leadership structures at all. If he prevails, any city with similar charter language could see their municipal executives, potentially even unelected ones, seize vast authority over the complexion of local government.