-: SJC- 13154, Springfield City Council,
the Domenic Sarno in his capacity
as the Mayor of the City of Springfield.
Clerk: Okay. Attorney Angelini.
-: Good morning, your honors.
My name is Michael Angelini,
I represent Dominic Sarno,
the Mayor of the City of Springfield.
This is a matter before the courtroom,
they know review of cross motions
for summary judgment.
There are no facts at issue.
This is a matter of Statutory Interpretation.
In 1962,
the citizens of the City of Springfield enacted
a plan A form of government.
As your honor's know,
there are various forms of municipal government
provided for in the statutes.
Which form is determined as a matter of election
of the citizens of a town or a city.
And in this case, the citizens elected
to be governed by certain sections of chapter 43,
which describe a plan A form of government,
otherwise known colloquially
as a strong mayor form of government.
There are according to chapter 43, section 46,
a number of nine actual statutes,
which control the governance
of municipal government dictated
by strong mayor, plan A.
Those are in summary, what control in our view,
your conclusion in this case.
Let me just briefly review them.
Chapter 43, section 48 provides that the mayor
of the city is the chief executive officer of the city.
Section 50 provides that the city council
of the city has legislative authority.
Section 52 provides specifically that the mayor
is the appointing authority
and appoints all heads of departments.
Section 53 provides that the mayor's right
to appoint heads of departments is unchecked.
It is simply accomplished by filing
a certificate of appointment certifying
that in his judgment,
his appointees are qualified to serve.
And section 54 says that the mayor
and the mayor alone can remove
at will any person so appointed.
Those are the provisions under plan A,
which control what is at issue here in this case?
And what's at issue in this case is the efficacy
and legality of an ordinance passed
by the city council of the city of Springfield,
which has fiscal responsibility.
And that ordinance provides.
Gaziano: Excuse me Mr. Angelini in your view,
what is the word reorganize mean?
-: Well, it means it means to take something
and change it.
Gaziano: Okay.
-: And I'll come to that in a minute.
-: Why don't you answer my question first?
-: Well, because I didn't mean to escape your question.
I'm sorry.
It means to take something that is organized
in a particular way and organize it
in a different way.
That's how I interpreted re-organize.
-: So then what do we do with general laws
Chapter 43, section 5.
-: You look at it in its totality.
If you look at it in its totality,
you will see that it is not one of the sections,
which is specifically related
to a plan A form of government.
It is section five, the sections that which relate
to the operation of plan A
are sections 46 through 55
as the statute says.
And if you look at section 5,
which is a general provision,
not specific to plan A,
it says two things which are significant.
It says...
Excuse me.
Gaziano: 43 Section 5 does not govern plan A.
-: It does with limitations
and the limitations are expressed in section 5.
It says in the first line
until superseded under this chapter
and the provisions which I have just read to you.
Supersede with respect to the power of appointment,
anything in section 5,
by the very terms of section 5.
It further says in section 5,
that it is only effective,
if it is consistent with the general laws.
And I argued to you, suggest to you that it is not.
So by its own terms, to the extent there
it is a general law,
but to the extent that it is contradicted
by specific statutes, which control plan A
form of government,
I suggest to you respectfully,
it has no impact.
-: How is it inconsistent with the general laws?
-: It is inconsistent because the sections
which I have read to you, which apply
to a plan A form of government,
say that the mayor has the power of determining
who are the heads of department.
And if the re-organizational language.
-: If the legislative body says,
rather than having one head of this police department,
you're going to have five,
And Mr. Mayor, you get to appoint them.
Is that consistent with the law?
-: I think not because by implication,
it tells the mayor that he cannot do
what he wants to do when appointing someone
who's head of the department.
I think it's sophistry frankly.
It's a suggestion...
I understand this suggestion.
And it's the only way that...
Well, I won't say more about,
I understand what's been suggested.
-: You were going to say,
its the only way they win but go on.
(Angelini chuckles)
-: I was going to say that.
-: Right.
-: But he gets to a point all five of them.
He gets to appoint all five
and they've reorganized it to make five heads,
but he gets to pick all five heads
and he gets to fire all five heads.
Angelini: Sure.
-: And all your other points,
I'm just looking through your,
he gets to appoint them.
Angelini: He gets to verify them,
remove them.
-: He gets to do everything.
He just doesn't get to decide how the department
is structured, which seems
to be a classic legislative act.
So I'm confused by why there's an inconsistency.
-: Because he does not get to decide
who he wants to appoint.
The ordinance says he must appoint five people
who are unpaid.
-: And he gets to pick five.
He gets to say...
-: He gets to appoints five people
who don't get paid.
That's an infringement on the power to appoint.
It's not in the provisions,
which apply to plan A.
We have different forms of government
as your honor knows.
-: Let take it one step further.
-: Yes.
-: The city council says, you know what?
Some of the functions of the police department
should be transferred to the mental health department.
They do that as a matter of policy,
whether that's a smart policy decision
or not that's their call.
-: I think they could do that.
-: And they are going...
And as part of that transfer,
we are going you know create two new heads over here
and we are going, you know,
do something over in the police department.
They can do that, right?
-: They could do a lot of things,
but what they cannot do is to infringe, impact,
minimize dilute the mayor's power as chief executive
to determine who is going to be the head
of the Springfield Police Department.
Lowy: What do we do with established new departments?
In section five.
-: They could establish new departments.
-: That's what happened.
-: They could establish a new department,
but they cannot determine
who the head is of that department
and can not constrain the mayor in any way
with respect to it.
They could create a department of judicial economy,
I don't know.
They can create any department they want.
That's their right, their legislators.
They could legislate things. -: Fine.
Excuse me.
-: And you're right,
the mayor can still appoint under section 52.
-: But they cannot tell the mayor
that he must appoint certain people
or people with certain characteristics
or certain people without pay.
They cannot tell the people,
look by their argument,
they could appoint 100 people
to head the Springfield Police Department.
One point I want to wish make to you is a statute
which we have not talked about.
And it's Chapter 41, section 1080.
That statute which is not contravened
by anything in plan A statutes says
the mayor has an exclusive authority
to contract with whomever he appoints
to be the head of the department.
Now the foolishness of what's being proposed,
the sophistry of it all is that conceivably,
the mayor could contract with these 100 people
that they named to a board or 5 or 10 or 20,
how many they decide.
And the mayor could say in his terms,
without a contract in that contract.
Look, I want 99 of you to follow
the dictates of Joe Blow the remaining one of you.
And unless you do that,
I'm going to fire you, as he can.
And they acknowledge he can.
The power to contract is implicitly a reflection
of the power of the mayor.
And if you take what they say.
If the mayor did what they say he has to do,
he could make such a contract
with those five.
which reflects the foolishness of the argument.
-: Well, the limitations on contracts
to the contracts against public policy,
don't get enforced.
He could enter into a contract for 100 years.
He hires his son to be the police chief
and enters into a contract for 100 years.
Angelini: And he could not discriminate in hiring
and could not do things like that.
-: Can I ask you another question Mr. Angelini.
(indistinct)
Kafker: Yeah, am done.
-: Thank you.
Does the 2004 finance control board legislation
mean anything because it's the reverse of this,
but because it's a separate legislative act.
we do not mind of it.
-: It's completely irrelevant to what's before us.
-: Okay, because it's separate legislative act.
-: Completely irrelevant.
-: Okay. Thanks you.
-: It plays the historical part
and how we get to where we are,
but I believe it's irrelevant
to what you need to do.
-: All right.
-: So that's where we have it.
Now, the question is, if you accept what I say
with respect to what are the statutes,
which control plan A form of government.
-: Well I don't accept it
and I'm also confused by it,
but Justice Lowy's question.
I take it,
the city council could abolish the police department, right?
They wanted to, I'm not saying again,
not saying it's a good idea
to abolish the police department.
They could abolish the police department
and transfer all the different positions
to different departments.
Angelini: They could do that.
-: The different functions.
Angelini: They could do that.
-: So if they can do that,
why can't they create a police department
with five commissioners as opposed
to one commissioner?
-: Because the statute says that the power of appointment
lies with the police of chief..
excuse me, lies with the mayor.
The power to contract and appoint
the responsibilities of that person
lies exclusively with the mayor.
And that is a characteristic of plan A government,
which the citizens of the city of Springfield have enacted.
That's why.
-: If Chapter 41, section 1080,
if that right to contract is enough
to take away the power of the council
to establish new departments.
Then all the has to happen has happened in this case
is we've got a new department
and then the mayor contracts
with police commissioner
after the legislation passes.
-: Yeah, I'm not arguing before you,
the ethicacy of the current contract
with the police commissioner,
what I'm suggesting to you
is that whenever he wants to do so,
before or after this ordinance,
without regard to this ordinance,
the power to contract belong solely
to the mayor.
And he can by that contract in effect,
determine how that police department is run.
That's his power.
The legislature gave him that power.
I suggest to think about it this way.
If you decide to pay any attention,
which I suggest respectfully,
you should not to section 5,
that is the general statute,
which applies not specifically
to plan A government.
And which has been,
I suggest to you superseded
and is therefore also inconsistent with general laws.
If you give that any attention at all.
And if you give attention to the specific statutes,
which govern responsibilities
of the mayor under plan A,
then the question is, I think,
how does this court harmonize that legislation?
How do you harmonize it in a way
to effect the mandate of the legislature
in passing these statutes?
And I think there's a way to do that
and the way to do it,
which I recommend to you.
And it seems to me would be sensible
in that circumstance,
If you decide to pay any attention to section five
is to limit the re-organizational power
of the city council to matters which do not affect
in any way the mayor's power of appointment.
It seems to me that is consistent
with plan A governance,
is consistent with the mayor's responsibility,
excuse me.
As a chief executive.
And it reflects the legislative responsibility
of the city council,
but it does not specifically look
at the mayor's power of appointment
and punch it in the nose.
It seems to me, harmonizing statute,
if you go to the point of giving any regard whatsoever
to section five is where that should lead this court.
But I suggest to you respectfully
that you must pay attention to that provision
of section five that says it has no meaning
if it is superseded by specific language,
with respect to specific plans.
And there is that with respect to plan A,
the city of Springfield and the mayor's right to a point.
Thank you.
Clerk: Okay, thank you very much.
The absence of any questions.
I have further no comments.
Clerk: Thank you.
-: Thank you.
Clerk: Attorney Lesser.
-: May it please the court.
My name is Tom Lesser
and along with my partner Michael Aleo,
who's seated to counsel table with me.
We represent the Springfield city council.
Now we've always thought of this case
as extremely straight forward.
We have a Springfield city charter.
We have a section five it adopted
the identical language from general laws,
chapter 43, section 5.
And it gave the city council a right by ordinance
to re-organize, consolidate,
or even abolish the department.
Second, the city council adopted an ordinance in 2018
that re-organized the police department.
And as part of that re-organization,
replaced the single police commissioner
who was then head of the department
with a five member board of commissioners.
And all five members are appointed by the mayor.
-: What do you say to the argument
that the ordinance has
to be consistent with the general laws
and as Mr. Angelini points out,
there's about five statutes
and the strong mayor provision
that give the mayor the authority
to appoint singularly.
-: Yes but he still has the ability
to appoint the five member board.
He has the ability to revoke
their membership on the board,
if he's dissatisfied with their membership on the board,
he has ultimate power to determine those five people
who serves on that board.
And so there is no conflict
and attorney Angelini admitted,
section 5 is still in effect.
And this wasn't some radical idea.
I mean, this had been what the city of Springfield
had done for 100 years.
They did it for 100 years
and then we had a municipal control board
and the municipal control board had the ability
to adopt new ordinances.
And the municipal control board in 2004,
adopted an ordinance replacing
that five member board of police commissioners
with a single member.
So basically the city council went back
to what had been done for 100 years,
without argument, without dispute,
without question.
-: Those members where they paid
back under the old statute and ordinance.
-: They were not judged the best of my knowledge.
And now that we did the original ordinance
that was passed, set up certain characteristics
of the five members, and that was struck
by the trial court.
And that was not appealed by us.
Cypher: Were the five members paid?
Do you know if they received a salary.
-: Paid in the past?
-: Yes.
-: To the best of my knowledge, they were not,
but I there's nothing in the record indicating
one way or another.
And this idea of unpaid was not argued
before the trial court.
It was not argued in superior court.
This is the first I've heard of the word unpaid
as being a significant part of this case.
What was argued before the trial court
was they had to be residents of Springfield.
They couldn't be employed by the city
and one or two other things.
-: Can I ask you to address..
-: And that was struck by the court.
The court said you can't do that.
-: Can I ask you to address counsel's argument
that section 5 has been superseded
or is inconsistent with the general laws
of a plan A form of government.
-: Well, the plan A form of government
simply says, the mayor has the power of appointment
and has the power of revocation.
It doesn't say that the mayor has the power
to determine the form of governments,
which is a pure legislative act.
There's nothing in what attorney Angelini talked about,
which is inconsistent with section 5,
which gives the city council,
the right to reorganize, to abolish.
And it's always been perplexing
to me in this case.
-: Attorney Angelina's hypothetical.
What if the city council said,
okay, now it's 100 police commissioners
in the board.
-: The city council.
-: Your Position is that would be perfectly fine.
-: Yeah it would be that if the city council
chose in its infinite ignorance to do that,
then it would have the right to do that.
It would have the right to have 1 person,
7 people, 20 people
as the trial court talked about
and that would be.
-: What if the mayor decided
to do as attorney Angelini suggested.
one person is to be the person in charge
and the other four have to listen
to the one person.
-: Well, that's not legislatively how it was set up.
It was set up as a five-person board.
-: Understood but if the contract
that the mayor enters into says,
here's your job.
Your job is to listen to Mr. X.
-: Are you talking about 1080?
at this point in time.
-: I'm not sure,
I know that Mr. Angelini said,
if the mayor has the power to contract
with the individuals, right.
-: The mayor has the power to select individuals
to serve on -: Select and contract.
the board of police commissioners.
-: Right, and turn the contracts with those five individuals.
Correct?
-: No, I think he was talking about a contract
with the police chief itself.
-: Okay.
So the mayor does not have the ability
to pick and enter into contracts with the..
-: He has the ability to pick those people,
to serve on the board.
-: Okay but not to...
-: Well, and set the terms of the contract,
right.
-: I'm sorry.
-: And set the terms of the contract,
including a term that might say,
Hey, you four since you're not being paid anyway,
you just do whatever this guy says.
-: I don't think he has the power to..
-: What would prevent the mayor from doing that.
-: I'm sorry.
-: What would prevent the mayor in your estimation
from doing just that.
-: Section 5, which gives the city councils the right
to determine how to reorganize a department.
-: Which one wins?
The power to contract,
or this power under section 5.
-: It's the power of governance
that the city council has.
The word organize means
to set up an administrative structure.
That's the power of the city council.
-: As we stretch this out to bad decision-making
this is in the hands of the voters, right.
Ultimately,
-: Yes.
-: Right.
So if the mayor do something crazy
or the city council does something crazy,
they're not there for the next term.
Right?
-: Correct.
But organized means by
(indistinct)
an administrative structure,
that's the dictionary definition of it.
-: There are some limits on your powers.
Right.
There's that case in which the city council tried
to decide who worked on the mayor's staff.
They couldn't, for example, say,
you can put five police commissioners
as long as they're all city council members.
-: Correct.
-: They could not do that.
-: Right and just as the characteristics
of the city council in the ordinance
they adopted were thrown out by the trial court.
So they couldn't that.
-: Mr. Angelini is right,
that there's some strong mayor component
to this that can't be intruded upon.
Where that line is it's kind of hard
to figure given the way that this is done,
but there are limits.
-: It's essentially.
They can't limit who he...
They can select a number of people who serve as a board
who have certain powers over department,
but the mayor has absolute right,
as a strong mayor to pick whoever he wants.
-: And I think the argument over here,
I think the argument though,
that we're hearing is that
we've got a part A form of government here,
and we've got the mayor with the appointment power
for the heads of departments under section 52.
And that the mayor can't really do
that when the choice is five non-paid members
of this commission.
And you said,
where this argument comes from.
It's sort of a little bit of a dicta
in the superior court judges opinion, I think,
which has a little bit of good luck being able
to fill the positions
(indistinct)
So I guess take his argument,
which I think is probably the strongest one,
which is that section 52 has no meaning.
You can't perform that function based on
what we have here with the non-paid five members.
-: Well, again judge,
this is the first time the issue of pay
has come up it wasn't addressed in superior court.
It wasn't challenged in superior court
is improper.
The fact of the matter is we're talking about
a huge hypothetical here.
Maybe you can find five people,
very easily,
the mayor who are friends and the mayor who would love
to serve as police commissioners
under those situation.
In response to the case that you cited judge.
That case involved the employees in a law department.
-: I know I get it.
-: And the SBAC was really clear
that we'd have a different situation
where we talking about a municipal department
with the power to reorganize or abolish.
-: I think at some point his ability
to be the chief executive
becomes jeopardized, right?
I'm not sure a five person committee
gets anywhere close to that.
But if there were...
If you required 100 people to be in charge
of the Police Department,
that may be improper because he can't execute the laws
with 100 people.
You know, whether right,
there are limits here.
He's the chief executive officer
of the city he's responsible for executing
the policy decisions of the city council.
-: Well, the police chief
is responsible under the statute
for overseeing the police department.
-: But there is no police chief.
Your view..
(indistinct chatters)
-: I'm saying that there's no...
The governance structure is a five person board
of police commissioners.
That's not to say that board may not
in fact have a police chief have a deputy police chief
have all sorts of other people under him.
I'm not saying that we're not going
to have a police chief.
I'm just saying that five person board
is the governing structure that has
to decide that.
There is one thing I'd like to address,
which is the statute chapter 41, section 1080.
Which attorney Angelini talked about.
And this is a statute which has to do number one
with employment contracts.
It has nothing to do with the governance
of the department itself.
And number two, and this is a mistake of ours.
In our brief,
the mayor made the argument
that he has the right under the statute
to enter into that contract, any such contract.
And I think if you read the words of the statute,
he is incorrect in that.
And we did not correct that in our appellate brief.
The statute states any city or a town acting
through its appointing authority.
And in this case,
the appointing authority
with regard to the police chief
is the five person board of commissioners.
It's not the mayor.
Of course,
the court went on to say that since the 2008 ordinance
became effective nine months before
the contract with the commissioner,
it could not have been validly executed.
And he knew that it couldn't be validly executed.
And the ordinance itself said
that when there was...
It would go into effect.
-: I'm getting confused.
The appointing authority for the police commissioner now
to be the five police commissioner
is of course the mayor.
Correct?
-: Correct.
-: Now you, and that's what Mr. Angelini argued,
now you're saying,
well the appointing authority
for the police chief is the commission.
-: I think that's a fair reading of the statute.
-: I don't know if you characterizing
his argument properly but you continue.
-: And we hadn't raised that before.
So I want him to point out to the court
that I think a fair reading
of the words appointing authority in that statute.
-: I think we're clear on
who gets to a point who.
-: So just in summary,
I think we have a statute which talks about reorganization.
We have a definition of reorganization,
it's to change an administrative structure.
Where the city council did exactly lap
that by passing an ordinance.
And we have a situation where the mayor thinks
that he has the ultimate power
to decide what happens in the city of Springfield.
And it really is a question of the separation
of powers from the city council's point of view.
The city council has certain powers
under the statute.
And my brother talked about the administrative powers
and the legislative powers of the city council.
And they exercise those powers.
And I just don't think there's any real question
that they acted within their authority
when they did that.
And there's nothing that suggested
that they acted improperly.
So thank you for your time,
unless anyone has any additional questions.
Clerk: Thank you very much counsel.