Law Department failings cost city
When passage of a $3 million bond item for school renovations failed Monday, it was an inside job with an unlikely accomplice: the city’s Law Department. And it’s not the first time, even in recent history, the city’s lawyers have made things complicated, uncomfortable and even contentious for elected officials.
There were several reasons for the stalling on the city manager’s funding request, the result of months of School Committee work that is intended to be the start of a years-long project. But a contributing factor was that on Monday city councillors Craig Kelley, Ken Reeves and Denise Simmons looked at the request and found that, as Reeves said, “The wording of this is confusing.”
While Reeves focused on the distinction between rehabilitating and rebuilding facilities, Kelley took a different tack. “My question to the manager is that $3 million doesn’t seem like a lot to rebuild a school, which is how I read the order,” Kelley said.
“The $3 million is only a design fee,” replied City Manager Robert W. Healy, something that was clear to others. But the simple explanation was undermined by the city’s own wording on the order and attached explanatory letter. They say the money is:
“for the purpose of financing the architectural design and construction of an elementary school project … to provide funds for the architectural design and construction of an elementary school.” [Emphasis added.]
Ultimately, Simmons used her “charter right” veto to cut off discussion and table the issue until the next meeting, potentially upsetting the timeline needed for the city to approve the money within the budget cycle and get started on the work. “I’m willing to take the time to know more about it,” she said, citing problems with “the way this is worded, whether it was intentional or not intentional.”
The mess over school design joins another, even bigger mess identified by Kelley: the interpretation of a part of the city’s zoning code, called 5.28, as it applies to the city’s definition of a “Residence B” area and how nonresidential buildings such as schools and manufacturing plants inside one can be converted to homes. In fact, the zoning law as written says they cannot be, but Kelley is virtually alone among city officials in saying the city should follow that. The code is being rewritten and several projects are going forward based on an interpretation of the law and its “intent.”
As the Cambridge Chronicle reported April 29:
Major David Maher and Councilor Marjorie Decker recalled that no matter what the law said, the intent of 5.28 had been to allow conversions of these buildings.
“There is no doubt that it was the will of the council to promote this,” Maher said. [Emphasis added.]
Leland Cheung was Kelley’s council ally in a 5-2 vote taken April 25 asking for “a detailed and formal legal opinion” on using 5.28 to bypass the building restrictions. “Whether or not we want it to be a no or a yes,” Cheung said, “I just don’t think that we should say it’s okay for what we pass as law to be interpreted from no to yes.”
One of the most striking examples of a legal failure, though, came last year, when councillors voted 6-3 for a law redefining what kind of corporate branding was allowed on city buildings. The vote came after months of bitter argument between officials and residents and among the officials themselves, and yet the vote wasn’t the end of the division. A local businessman paid hundreds of thousands of dollars so professional signature gatherers from out of state could get enough names on petitions to overturn the law. Councillors rescinded it, acknowledging political realities and the expense to the city of fighting the battle again.
What divided the city was a process resulting in an amended law overwhelming in its complexity. An Aug. 31 version included two sets of revisions, distinguished by color, that many found bewildering. “I can say there’s about 100 lines of change to proposed changes, and this is way too ambitious to do anything but start over,” Kelley said of the proposed law.
It was so confusing that even as backers of the proposal could say it toughened city law, a Boston public relations expert was able to rev up opposition by summing it up like this: “Turning our skyline over to big out-of-state corporations is bad enough, but the city isn’t even charging for it. It’s just a giveaway!”
Then came a Sept. 27 hearing in which an acting assistant city manager and deputy city solicitor were brought in to answer councillors’ questions about the law. Together they gave about a dozen admissions of uncertainty on a range of issues, saying “I had assumed” on some, “I believe” on others and “I do not know” on yet others before finally admitting that even where the law applied specific percentages, determining those percentages was “more art than science.” When asked a definition of a term in the law, Deputy City Solicitor Nancy Glowa just referred back to the law that raised the question in the first place.
It was a disastrous performance that portrayed the law as being literally indefensible.
Afterward, defenders of the ordinance and the department that crafted it pointed out that probably all laws have loopholes and language open to interpretation. But not all zoning laws are written to say the opposite of what its framers intended, and not all make mistakes as odd as saying money that is “only a design fee” will go to “design and construction.”
Kelley, a connecting thread in spotting each of these failings, is asking that the Law Department’s $2.1 million in funding — including decisions over hiring outside counsel and the salary and wages of eight full-time attorneys (earning between $141,207 and about $90,000), three support staff and a part-time investigator — be removed from the budget and put under council control. While the request is likely tied to a potential $10 million loss over a single case involving Healy, it’s worth wondering whether the quality of the department’s work isn’t a motivating factor.
Time and money can be saved, and there can be less rancor and division in the city, with a higher quality of work from the department crafting official city language.