In a memo to the City Council, Chief Operating Officer, Jonathan Yeo states the following:
“The Administration, including the City Solicitor’s Office, have repeatedly testified against this separate counsel provision, with a clear statement that the Mayor will veto the package with such a change and not bring it forward for home rule provision support to the State Legislature. Notably, home rule petitions can only move forward with the approval of the Mayor.”
Here’s the new section that the Mayor opposes:
“(d) Legal Assistance to the Council — The city council may obtain legal assistance on any issue
being examined by the council relating to its duties under the charter; provided that the council
rules establish a process for the selection of such assistance.
Any material produced by the attorneys for the city council, whether in document or electronic
form, shall be clearly and prominently labeled as “Advisory to the Newton City Council.” The
same statement shall appear on any materials printed or distributed in electronic form at
council meetings, other public meetings, or in any other public venues. Copies of all materials
produced by the attorneys shall be provided by the council to the city law department and the
mayor at the same time such materials are distributed to the council members.”
Thoughts? Full disclosure: I have been a staunch advocate for the City Council to have the ability to have it’s own legal counsel both as a City Councilor and as candidate for Mayor.
According to the present Charter the City Counsel can seek outside representation on legal matters. What is it that is
different about this new request?
I believe the legislature reviews home rule petitions on single
items. There role is not to redo an entire charter.
@Amy Sangiolo – What’s the case you would make that the City Council needs its own lawyers separate from the City Solicitor. This is the first I’ve heard of this issue and its not at all clear to me what its all about.
It’s not a new idea. There may be instances where the City Council and the Mayor disagree on a certain course of action and the City Council would want an independent attorney to advise them on how best to proceed. The Law Department, like other City departments, report directly to the Mayor.
Why would the Mayor be opposed to this??? Is this a fiscal issue?? It seems logical to me.
So, what is being proposed is that the council should have its own separate legal counsel for ALL its legal issues? In other words, the City Council would not be using the Law Department?
Is it possible that should a major conflict arise between Mayor and council that the City Solicitor’s memo which addresses outside counsel not be sufficient? In other words, Mayor says no budget for outside counsel – what options are left for the city council?
Found this on Charter Subcommittee agenda from April 2018:
Brooke Lipsitt discussed money in the budget for legal assistance for the City Council. She noted
that during her tenure on the Board of Aldermen there were one or two occasions when the
Mayor’s office and the Board had very different interests. Since the City Solicitor works for the
Mayor, the interpretation of the City Solicitor was more likely to support the Mayor’s point of view.
Given that situation, Ms. Lipsitt suggested that the City Council be allowed to solicit counsel
separate from the City Solicitor in the rare circumstance where it may be necessary.
Ms. Kidwell and Ms. Lipsett agreed that the provision would be more of a safety net in the case of a
big disagreement between the executive and legislative branches, and would not be intended as an
ongoing tool. Councilor Albright was concerned that the provision could be abused.
There are two other places in which the Charter references legal assistance. One is in the transition
section that said the amount of the fund would be set at 2% of the proposed budget for the city
Law Department. The Charter Commission recommendation in Article 2, Section 2‐8(d) states that:
“The City Council may obtain legal assistance on any issue being examined by the Council relating to
its duties under the Charter provided that the Council rules establish a process for the selection of
such assistance. Any material produced by the attorneys for the City Council, whether in document
or electronic form, shall be clearly and prominently labeled as “Advisory to the Newton City
Council.” The same statement shall appear on any materials printed or distributed in electronic
form at City Council meetings, other public meetings, or in any other public venues. Copies of all
materials produced by the attorney shall be provided by the City Council to the City Law Department
and the Mayor at the same time such materials are distributed to the Council members”
It was noted in this section that the City Council rules would establish a process for electing to use
legal assistance. The Charter Commission did not want the Charter to be specific as to how and
when legal assistance could be used – instead, it would provide for the funds and the Council rules
would determine the rest. This would have to be something that was requested by the Council as a
whole and would need to rise to the level of significance that would warrant Council action.
The theme that runs through the recommendation is the balance of power between the Executive
and Legislative branches, and in this area the City Council was at a serious disadvantage.
Councilor Baker said there were circumstances in the past when it would have been helpful to have
independent advice and feels there is value in having that option available.
It was asked why the Charter needed to state that the funds be in the budget for this independent
counsel. The Chair stated that it was intended as clarification because not only did the Council
need the authority to hire counsel, it needed the funds to do so.
Amy, can you provide a specific example?
Sorry Paul – I don’t have an immediate instance that I can recall. I do remember that for me, this issue became important during the Cohen administration and was raised again under the Warren administration.
Just out of curiosity, the Council could override the veto with a 2/3 majority, correct? However, even in the case of an override, is it accurate that the provision could not become part of the City Charter without Mayoral approval?
The current Charter gives clear authority to the City Council to create a position of attorney. See Charter section 2-8. If the Council wants an attorney they should pass an Ordinance to create the position.
I am not sure the Mayor can veto or unwind the position
@ George, No, a home rule petition requires the signature of the mayor. If the mayor declines to sign it, it is not a veto, and there is no ability to override. (This is what happened with the home rule petition docketed by 16 city councilors weeks before the charter vote. The councilors promised voters a chance to vote on this home rule petition if they voted No on the charter commission proposal, the “third option”. The councilors did not explain that the mayor’s signature was required and that they had not secured his support. The mayor declined to sign the unvetted proposal and the home rule petition was dead.)
@ Peter Harrington, the idea is not to add an expensive position to the city budget. No one is arguing that the city council needs its own permanent legal support.
This provision allows a small budget line item for the city council to obtain an unbiased legal opinion. It would likely go unused most years. But the fact is that the city solicitor works for the mayor and is not unbiased.
This provision of the proposed charter is intended to protect city residents from an overly politicized administration. An unbiased legal opinion could be important in order for the city council to be able to do the job it is elected to do.
In a mayor-council for of government, the mayor has tremendous power and this is just a tiny safeguard for the city to maintain checks and balances.
I also want to be clear that I’m speaking about Newton’s mayor / council government generically and not referring to the current or any specific mayoral administration.
Looks like the Mayor and City Council are on for a show down.
This evening Councilor Baker put forward an amendment to remove the separate counsel provision. Not a single councilor voted to remove it. The Council then voted on the main item, and it passed unanimously.
So does the Mayor know better than the city council?