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McGee Goes Shermanesque, Upending Holyoke Mayoral Succession…

UPDATED 3/17/21 12:23AM: The City Council approved the petition as the Charter & Rules Committee recommended on Monday. Full story here.

Like General Sherman said of running for president, Councilor Todd McGee says he will not accept the mayoralty if nominated and will not serve if elected (by operation of law)…probably. (via wikipedia)

There is now a date certain for Holyoke Mayor Alex Morse’s exit from office. At the moment, what happens after is anything but clear.

Morse’s last day leading the Paper City will be March 26. The 32 year-old mayor, who first won office fresh out of college, had already announced his retirement from City Hall. Last month, the Provincetown Select Board appointed Morse the community’s next town manager. That accelerated his departure by about nine months.

Yet, the announcement of the actual date of Morse’s departure has preceded legislative bedlam. His would-be successor revealed he could not become acting mayor. A Council committee considering a home rule petition to cancel a special mayoral election learned Monday City Council President Todd McGee was now declining the acting mayoralty. The Charter & Rules Committee had no choice but to contemplate entirely new home rule legislation to deal with this turn of events.

“Imagine my surprise as Chair of the Charter and Rules Committee when President Todd McGee stated that he will not serve as Acting Mayor for the remainder of the term,” Ward 5 Councilor Linda Vacon emailed after the meeting.

Holyoke had been preparing to follow in the footsteps of Boston and Lawrence and avoid a special election. With the legislature, those cities acted to void mayoral special elections—in 2021 only—which their charters otherwise demanded. Citing the cost and the difficulty of holding extra elections in a pandemic, those cities sought and received approval to let their acting mayors serve until regularly scheduled election this November.

McGee said he cannot serve as acting mayor ostensibly because of commitments to his job at MassMutual and potential conflicts. Yet, the City Charter has no clear succession provision should a council president pass on assuming the mayoralty.

“With that, although there is no readily apparent conflict of interest for me stepping in as the acting mayor, there could be a potential conflict of interest down the road,” McGee told the Committee. He also said mayor was a full-time job, implying he could not serve as such.

At times, nearly the whole Council majority was on the three-member Charter & Rules Committee’s Zoom call, wrestling over new language. Only Committee Chair Vacon, McGee and at-large councilor Howard Greaney are actual members of the panel.

Todd McGee

Acting Mayor Todd McGee? Hard(ish) Pass. (via Facebook/McGee campaign)

Complicating matters were concerns about who could become acting mayor instead and, were it a city councilor other than McGee, whether that person could run for mayor. Two at-large city councilors, Rebecca Lisi and Michael Sullivan, have announced bids for mayor.

Both Lisi and Sullivan expressed a preference to not run while acting mayor. At-large councilor Joseph McGiverin was the last acting mayor, serving after then-mayor Martin Dunn resigned. He suggested the acting mayoralty conferred no advantage anyway as he failed to win the mayoralty outright after his acting stint. A similar fate befell the last acting mayor of Springfield, Vincent DiMonaco. He lost a special election to Mary Hurley in 1989.

Language the committee considered, but did not adopt, would have barred sitting councilors running for mayor from becoming acting mayor. However, as Sullivan observed, this would not stop whoever received the appointment from running for the full term anyway. Language to bar the sitting acting mayor from appearing on the ballot in the regular municipal election was not proposed.

As several councilors, including herself, disclaimed interest in the acting mayoralty, Lisi suggested the Council adopt for language to consider a professional manager for acting mayor. Vacon poured cold water on that issue noting the clocking ticking down to March 26.

Councilors also debated whether the acting mayor—if a councilor—should vacate their Council seat to resolve conflicts. Normally, when a sitting city councilor becomes an acting mayor in Massachusetts, they do not vacate their Council seat. Some choose to and obviously must if they thereafter win a special election to become mayor. While retaining their seat, if nominally, acting mayors usually do not vote on Council matters the mayor also acts on. If Holyoke had a council vice-president, that person would preside over Council meetings.

McGiverin noted he did not cease being on the Council while serving as acting mayor.

Acting City Solicitor Crystal Barnes warned councilors that now that they were looking to do more than cancel a special election, the legislature could send the legislation back to Holyoke for revisions. Barnes said that was even more likely should the Council decide to exclude anybody from being selected.

If it’s not a straight up special election cancellation, Beacon Hill will have questions. (WMassP&I)

Such revisions could become necessary because the legislature has limited authority to amend city charters without local approval. Under the Home Rule Amendment, the General Court can only act within the confines of a home rule petition. There are ways around this, but it would require the governor to submit legislation to initiate the process. Though there was some home rule direction from Springfield, then-Governor Mitt Romney had effectively triggered this backdoor to initiate the legislation that would install the Finance Control Board in 2004.

Ultimately, the committee forwarded language to the Council that simply cancels the special election. It also empowers the Council to pick an acting mayor from among themselves. The full body will consider it Tuesday. Councilors could amend it on the floor before sending it to Morse for his signature.

Should the legislature and the city not agree to something before Morse leaves, how Holyoke would fill the mayoralty is murky. In other cities, a council vice-president could plausibly assume the mayoralty if the president demurs. However, Holyoke has no council vice-president.

At one point, Vacon, Barnes and Ward 3 Councilor David Bartley discussed a chapter of the general laws on city charters. However, this chapter would not apply to Holyoke, which has a special act charter dating to the 19th century. The general laws do appear to have another backstop, which would allow the Council to choose somebody. Whether it could apply to Holyoke is uncertain.

It may not matter. McGee did say he could serve briefly. Meanwhile, however, current law would oblige the city to begin the special election process until the legislature orders otherwise.

Linda Vacon

Vacon: Maybe there’s an easier way. (via LinkedIn)

After the meeting, Vacon said she still supports the cancellation of the special election. However, she added the Council could resolve the succession issue locally.

“Upon reflection and follow up on the discussion and debate at the committee meeting, there is a simple solution to this matter,” Vacon said in her email.  “If the City Council President will not or cannot fulfill the duties of the office that he ran for, understanding the responsibilities of the position, then he needs to resign from his position and the City Council will elect a President who will fulfill the duties of the position.”

If such a scenario plays out before Morse leaves office, there should not be any legal impediment to Vacon’s proposal. Before McGee’s shock announcement, Holyoke’s state rep, Patricia Duffy, told WMP&I House leadership had not seen any barriers to passing a simple special election cancellation.

During the meeting, Councilor Greaney suggested the Council simply send something to the legislature. The Council could then revise the petition as Beacon Hill directs. In a fundamental sense, this is true, but that is a gross understatement of the situation.

A petition that includes new mayoral appointment powers—whether with language about the acting mayor’s eligibility to seek a full term or not—will face scrutiny from lawyers for the House, Senate and Governor Charlie Baker. With the requests for entirely new, if not wholly exotic powers, state attorneys cannot cut and paste legal advice from laws that cancelled Boston and Lawrence’s special elections.