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A Mayor Called Sue(d): Briefs Foretell Familiar Claims at SJC Hearing next Month…

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

Groundhog Day arguments come to SJC next month. (via wikipedia)

The Massachusetts Supreme Judicial Court has received the briefs in Springfield Mayor Domenic Sarno’s appeal of a decision that found he must appoint a Police Commission. On April 16, Hampden Superior Court Judge Francis Flannery found that the Springfield City Council was within its rights to revive the former police panel via ordinance. Up to then, Sarno had refused to comply, deeming the Council’s ordinance illegal.

Sarno promptly appealed Flannery’s decision. Lawyers for the mayor and Council jointly sought direct review from the Supreme Judicial Court. The commonwealth’s highest court will hear arguments on December 6. While this legal epic will be new to the court’s seven justices, avid followers of this municipal intramural faceoff shall find the substance of the arguments familiar.

The central issue in the case is whether the Council’s inarguable power to reorganize city departments extends to leadership of the Police Department. In fits and starts since 2014, the Council sought to restore the Police Commission that the Control Board had abolished. The Board had installed a sole commissioner in charge of Pearl Street, which remains the status quo today.

The ordinance at issue here passed into law in 2018 over Sarno’s veto. However, the mayor has refused to implement the ordinance, arguing his power to appoint commissions and department heads, a power no one questions, undulates to authority to determine how to structure a department’s leadership. In 2019, Sarno signed a contract with the current police commissioner, Cheryl Clapprood.

The situation had been at a stalemate until last year when, in the aftermath of George Floyd’s death, the City Council secured the legal representation it needed to sue the mayor for compliance. Northampton attorneys Thomas Lesser and Michael Aleo signed on pro bono counsel for the Council. Because the city Law Department had participated in Sarno’s decision on the ordinance, he had to seek outside counsel. He hired Michael Angelini from the Worcester law firm Bowditch & Dewey to defend his position.

Over the summer, Sarno filed his appellant brief. From there, it ping-ponged to the Council to file its appellee brief before returning to Sarno who largely restated his argument in a reply brief.

The briefs were somewhat short compared to the filings in Superior Court. There were no novel arguments. The Council, now armed with Flannery’s decision, quotes the judge extensively. Flannery’s opinion cites decisions that found other cities’ councils could place a commission atop their police departments.

Angelini declined to comment beyond the briefs. Aleo, one of the Council’s attorneys, said the filings prove Flannery came to the right decision.

“I think the briefs stand firm themselves and what is clear is the trial court decision was well-reasoned and consistent with the Springfield Charter, the Massachusetts General Laws and applicable caselaw,” he said.

Domenic Sarno circa 2016

“I got the power!” Sarno tells high court. (WMP&I)

In urging the SJC to overturn the lower court, Sarno’s lawyers return to familiar themes that make the mayor’s right to make appointments without Council confirmation quite expansive. The brief argues the Council mischaracterizes its own power to “reorganize” city departments. However, such reorganization must be consistent with the general laws, which the Police Commission ordinance does not, he argues.

“The trial court’s conclusion that the 2018 Ordinance merely ‘dictate[d] whether the department head will be an individual or a particular entity comprised of more than one more person’ ignores that the authority to appoint the head of a department implicitly includes the authority to determine who will head the department,” the brief reads, quoting Flannery’s decision. “That is the Mayor’s right, not the City Council’s.”

In short, the mayor defines his right to determine who a department head is to also mean however many of whom he wishes. Flannery had categorically rejected this.

While conceding but not identifying differences between the two cities’ charters, the mayor’s brief cites litigation between Boston’s City Council and mayor that found for the latter. Yet, as the Council’s lawyers note in its brief, the circumstances in Boston were quite different.

The Boston decisions related to positions in the mayor’s office and not city departments. Indeed, the courts have explicitly observed this distinction, the Council argues.

“None of the three cases involving city charters upon which the mayor relies support his position,” the Council says elsewhere in the brief. “Indeed, all three support the trial court’s findings.”

These cases are the two involving Boston and a third the trial court relied on from Fitchburg. The latter case stood for a Council’s right to reorganize a police department. The mayor had argued that the Fitchburg case did not apply because that city had a different form of government. Nonetheless, Flannery had said these differences did not affect Springfield’s Police Commission ordinance.

Springfield City Council January 2020

Like Boston? Wrong number! (WMP&I)

The mayor’s brief claims the SJC had barred Boston’s City Council from reorganizing city government. By contrast, the Council notes the high court only said Boston city councilors could not meddle in the mayor’s office.

“The Court struck down the Boston Ordinance precisely because ‘The mayor’s office is not a “department or agency” subject to reorganization by the city council; it is a separate branch of city government,’” the Council said, quoting a 1981 SJC case that struck a Boston City Council ordinance.

The mayor’s reply brief pirouettes around this point. It selectively quotes the SJC, attempting to widen what that court and others had actually said with respect to Boston.

The briefs’ other main legal point concerns the interaction between the Council’s ordinance and a state law on appointing authority contracting with police—or fire—department leaders. The mayor had attempted to argue that the SJC should read this statute together with the mayor’s appointment powers. That way, he could sidestep the Council’s reorganization prerogatives.

The mayor’s briefs emphasize that the statute also asserts that a contract “shall prevail over any conflicting provision of any local personnel by-law, ordinance, rule or regulation.”

Flannery had largely dismissed this reading as it would have nullified the Council’s powers. Rather, he noted that the contract with Commissioner Clapprood had taken effect after the Council had passed the 2018 ordinance. Thus, the conflict was of Sarno’s “own making.” However, Flannery also suggested the conflict was not insurmountable.

The Council’s brief echoes this and highlights the law’s explicit language leaving intact municipal appointment powers. “Nothing contained in this section shall affect the appointment powers of any city or town over” police and fire leaders, the statute reads.

The implication is the Council can decide who the appointing authority is. Though, that may could be the mayor or a Police Commission. Under Springfield’s charter, as all sides agree, the mayor would appoint a commission.

However, neither side engages with the law’s reference to local “personnel” rules. The Council’s emphasis is on the broader scope of the body’s powers. The mayor portrayed the line as a cure-all for his statutory infirmities. Flannery did not engage with it either. The term’s presence suggests something more banal like pay and benefits, not the existence of a position. Indeed, state law grants municipalities some authority to define personnel policies within the confines of collective bargaining and civil service.

The SJC’s decision to directly review the case is not surprising. Interbranch municipal cases have become relatively rare. Springfield operates with a model charter that pre-dates the Home Rule Amendment to the state constitution. Therefore, the charter’s language mirrors that of several Massachusetts cities. The court’s ruling after next month’s hearing could reverberate well beyond Springfield, as Attorney Aleo noted.

“Hopefully this will put an end to this saga and will be a lesson not only the mayor of Springfield, but other mayors around the commonwealth that these division of powers between city councils and mayors are not to be taken lightly,” he said.