June 1, 2009 City Council Agenda Highlights
The 800 pound gorilla in the room this week is the unresolved matter of the Council’s challenge of the City Manager over continuing legal action after the recent jury decision in the case of Monteiro v. City of Cambridge. When the FY2010 Budget was voted at the May 18 City Council meeting, Councillor Kelley moved that the portion of the Law Department budget that covers the cost for outside legal counsel not be approved. After the City Manager pointed out that this Budget is used for a range of activities having nothing to do with this specific case, the motion was defeated on a 4-4-1 vote with Councillors Kelley, Reeves, Seidel, and Simmons voting YES; Councillors Davis, Maher, Toomey, and Ward voting NO; and Councillor Decker voting to ABSTAIN. While the ultimate intentions of Councillor Decker are unknown, she is to be congratulated for preventing this reckless action.
The matter didn’t stop there. There was still Order #2 by Councillors Kelley, Simmons, and Reeves (such good friends) which stated: “That the City Manager is requested to make available adequate funds to the City Council so that the City Council can hire its own legal expert to review relevant issues in pending litigation.” Anyone familiar with the Plan E Charter knows that the City Council is prohibited from directly engaging in personnel matters, so this Order is highly problematic. Unstated in the Order was how a Council not known for its mutuality might actually decide on legal counsel. There is also the question of what would happen if the Council’s counsel (sorry, couldn’t resist) radically disagreed with the opinion of the City’s Law Department.
It is the proper role for the City Council to establish general policies not particular to any specific case, and that includes legal and employment matters. They can do this by an Order (really a formal request) or by Ordinance (such as when they establish a commission with staff – arguably the reason we find ourselves in this mess in the first place). Councillor Toomey, to his credit, understands the Charter and the potential hazards of publicly discussing pending litigation. He introduced a Substitute Order which referred the matter to the City Solicitor for a legal opinion. After an extended Executive Session, the Council unanimously voted to table both the original Order and Toomey’s substitute. That matter could be taken up this week and more Executive Sessions will surely follow. Meanwhile the City has filed an appeal of the most recent court ruling now that post-trial motions appear to have run their course.
This is probably not the place to go into the whole history of the Monteiro v. City of Cambridge case, but since the newspaper reports have been so thoroughly lacking, there are a few things that should be stated. Malvina Monteiro was the Executive Director of the Cambridge Police Review & Advisory Board (PRAB) which was established by a 1984 ordinance. The job of the executive director was established as a full-time job with duties that were part-time at best. At some point, perhaps out of boredom or a desire to move up, Monteiro enrolled as a full-time student at Tufts while still working “full-time” at the PRAB. She also sought a City scholarship. When she did not receive the scholarship, she filed a joint (racial) discrimination complaint (1998) along with Marian Hampton (Library Dept.) and Mary Wong (Kid’s Council). At the time of the discrimination complaint, the City Manager stated that the City must on occasion “take corrective action when performance and expectations are not met. In those cases we attempt, whenever possible, to work with the employee to improve performance. . . . If that is not successful, disciplinary action may be required.”
By early 1999, Linda Stamper of the City’s Law Dept. joined the complaint. Eventually, several others joined the complaint that was being pursued by lawyer Ellen Zucker, formerly the president of the Boston Chapter of the National Organization of Women (NOW). [As a side note, Zucker’s spouse is Ellen Clegg who was until recently the deputy managing editor for news operations for the Boston Globe and previously served as the editor of the Globe’s City Weekly.] Florencia LaChance who briefly worked for the City as Manager of Employment Services also joined the complaint.
The City filed for Summary Judgment and in February 2003 a Justice of the Superior Court ruled that the LaChance and Hampton complaints should be dismissed. However the Wong, Monteiro, and Stamper cases were allowed to proceed through the legal system. By this time, the Monteiro complaint also included a charge of retaliation (she was fired) for having filed the original complaint. Consequently a jury failed to reach a verdict in the Monteiro case, but a subsequent jury trial led to a May 23, 2008 award of $962,400 in back and front pay and damages, $100,000 for emotional distress, and (ch-ching!) $3,500,000 in punitive damages. The City, of course, filed motions challenging this jury award. Nonetheless, in April 2009 a different Superior Court judge denied the City’s motion. This only sets the stage for an appeal to a higher court. The question that is now being tossed about and politicized is whether the City should pay the judgment even if it is believed to be excessive and improper and avoid any future legal costs. The Stamper complaint and the Wong complaint (Wong is still Exec. Director of the Kid’s Council) are still pending. [By the way, I’m a mathematician and not a lawyer, so please forgive (or correct) any misinterpretations of all the legal mumbo-jumbo.]
There are other policy aspects to this matter that should be discussed by the City Council but will almost certainly not be discussed. The administrative functions of the Police Review & Advisory Board were merged with the Human Rights Commission several years ago. Both commissions were established by ordinance in 1984 and always had overlapping functions. This administrative consolidation should have happened long ago, and it can be argued that such a consolidation may have prevented the conditions that led to the Monteiro case in the first place. It is, after all, not so easy to attend a full-time college program when you have actual work responsibilities. At the recent Budget hearings, Councillor Seidel indirectly asked about consolidation of some of the City boards and commissions but them quickly retreated when the City administration expressed interest in the concept. It is a fact that some City commissions (such as the Peace Commission) have become sacred cows whose purpose is rarely questioned by elected officials even though their functions are often vague and could easily be absorbed into other City departments.
Enough said about the 800 pound gorilla. Back to the rest of the agenda:
City Manager’s Agenda #6. Transmitting communication from Robert W. Healy, City Manager, relative to Awaiting Report Item Number 09-53, regarding a report on the status of the Malik Academy lease.
Order #13. That the City Council go on record asking Winn Management and Homeowners Rehab, Inc. to respond immediately to the City Council on their decision to provide Malik Academy, at the very least, a short-term resolution allowing for the continued operation of the pre-school and the child-care facilities for the next school year. Councillor Decker and Councillor Reeves
Normally, an item like this wouldn’t even attract my attention. However, at the previous Council meeting there was much public comment on this topic and most of it suggested some kind of unfair treatment of this religious school. It was especially interesting to note that in spite of suggestions by councillors and during public comment that the loss of Malik Academy would be a blow to Cambridge pre-school facilities, the new tenant will be another pre-school. According to the response from Homeowner’s Rehab (HRI), Malik Academy was given a temporary sweet deal at $15/sq. ft. and were asked to pay $16/sq. ft., something that should have been no surprise since they were aware at the original signing that they should expect a small increase. When the time came to sign a new lease, they insisted on a decrease. None of this was mentioned at the previous Council meeting. In the end, HRI rented the space to another pre-school at $22/sq. ft.
City Manager’s Agenda #10. Transmitting communication from Robert W. Healy, City Manager, relative to Awaiting Report Item Number 09-51, regarding a report on the status of the Harvard Senior Picnic. [The Harvard Senior Picnic, which is hosted by the Mayor’s Office in conjunction with Harvard University, is scheduled to go forward as planned on Wed, July 29, 2009.]
Again, this item should barely warrant being noticed, but the ALARM expressed at the previous Council meeting was noteworthy. Skeptics other than me have suggested that the real purpose of this event is for local political candidates to work the captive crowd in their relentless quest for votes from a population (senior citizens) who can generally be counted on to vote in local elections. If you’ve even witnessed this event, you will understand the skepticism.
Tabled Item #2. That the City Manager is requested to make available adequate funds to the City Council so that the City Council can hire its own legal expert to review relevant issues in pending litigation. [Tabled on motion of Councillor Davis Order Number Two of May 18, 2009 together with motion to amend by substitution submitted by Councillor Toomey.]
Order #4. That the City Manager is requested to confer with the appropriate departments to explore the possibility of banning the use of cell phones and text messaging while driving in Cambridge. Councillor Decker
Excellent idea, but unfortunately superseded by state law that permits cell phone use while driving. Fortunately, recent events have motivated the glacial state legislature to ban text messaging while driving. Why anyone would vote to permit this dangerous practice at all is beyond comprehension. Then again, you can’t legislative stupidity away.
Order #5. Urge Governor Deval Patrick to issue an executive order requiring all new homes and businesses to be zero net energy buildings by 2030. Councillor Davis
This is part of a group of three Orders from Council Davis in this same spirit. A definition of “zero net energy buildings” would be helpful.
Order #9. Urge the Cambridge Legislative Delegation and Governor Patrick to support and vote in favor of updating the Massachusetts Container Beverage Law. Councillor Davis
This is also a good intention and probably a net positive idea, but there is an inefficiency in asking residents to schlep additional containers to supermarkets and redemption centers when they can just put them out in their recycling bins. Many will do just that, so the great beneficiaries of this proposal will be the scavengers raiding residential set-outs for deposit bottles. We can only hope that the survival and expansion and redemption centers are factored into this proposed law. For those of us who already recycle to the maximum extent, this change is actually a net inconvenience. – Robert Winters