December 26, 2022
Happy Boxing Day to all who celebrate, and a belated Merry Christmas to all.
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Last Tuesday’s City Council meeting was one of the briefest of the year, lasting just over an hour. That’s partly because there were no memorials, awards, or presentations at the start, but also because none of the items on the agenda were especially controversial.
Here are snapshots of the items that got some discussion during the meeting:
There were public hearings on ordinances to create the position of ARPA Administrative Assistant and another to create the position of ARPA Grant Fiscal Coordinator. During the public hearing, no one spoke in favor or against either of these, however, Councilor Erik Gitschier questioned ARPA Finance Manager Brendan Flynn on how the salary for the positions was set. Flynn answered that they looked for a comparable position in city government then bumped the pay up a level to attract more qualified candidates. Councilor Gitschier was critical of this approach, saying that it was demoralizing to city employees who will see someone new brought in at a higher rate of pay when they have already devoted years to the city. He added that someone already working for the city would be familiar with city accounting systems whereas someone from the outside would need time to learn all that from people being paid less.
Councilor Dan Rourke responded with some questions of his own to Mr. Flynn:
Have you already hired someone for this? No
Has the position been advertised? Yes
Have you interviewed candidates? Yes
Have you made your selection pending the passage of this ordinance? Yes
Is the person you’ve selected already a city employee? Yes
With that, the City Clerk called the roll. The first position passed with 10 yes votes and 1 no vote (Councilor Gitschier). The second one passed with 9 yes votes and 2 no votes (Councilors Gitschier and Leahy).
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In a response to a Councilor Vesna Nuon motion for an update on the Complete Streets Prioritization Plan, Transportation Engineer Elizabeth Oltman wrote that last month, the city was awarded a $49,000 grant by MassDOT to hire a design engineer to update the city’s Complete Streets Prioritization Plan. Once that’s done, it will allow the city to apply for up to $500,000 in state funding for Complete Street construction projects. Oltman’s memo added that DPD is in the process of hiring the design firm of Howard Stein Hudson to do the Prioritization Plan update.
Councilor Gitschier questioned Oltman on what criteria was used to select this firm. Oltman replied that based on her investigation, Howard Stein Hudson had done similar projects for other cities like Lowell and that they had a good reputation in the field so she selected them. Councilor Gitschier, echoed by Councilor Nuon, made the point that even if design contracts are not technically required to be put out to bid, it would be preferable for the city to have a competitive process that allowed other firms to apply for available work rather than just directing it to one company.
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Discussion of a response to a Councilor Corey Robinson motion requesting an update on the Greenhalge School playground highlighted some friction between the School Department and City Hall when it comes to who is responsible for paying what. Back in June, Mayor Chau had made a motion to upgrade the playground equipment at the Greenhalge School; this motion by Councilor Robinson was a follow up to that.
The motion response said that some playgrounds on school grounds are the responsibility of the city parks department while others are the responsibility of the school department. The distinction is that if the playground is within a public park and the school just happens to be adjacent to it, then it is the city’s responsibility whereas if the playground is solely on the grounds of a school, then it is the school department’s responsibility. (An exception occurs with playground that happen to be on public parks but which were funded by the school department and used exclusively by the school).
There is no public park at the Greenhalge School so this is a school department playground.
Councilor John Leahy said that when he was Mayor, School Committee member Jackie Doherty made a motion to upgrade all school playgrounds so he couldn’t understand why the school department had not yet done that.
Councilor Robinson urged the city to work with the school department to find some solution so that the playground can be fixed up and used by the children at the school and in the neighborhood.
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The Finance Subcommittee met on several issues. In her report on that subcommittee meeting, Councilor Kim Scott said that parking rates were one of the things discussed. CFO Conor Baldwin and Parking Director Terry Ryan made a presentation on that topic and a number of downtown residents spoke about their concerns over proposed increased fees and urged the city to look at the big picture of downtown. It seemed apparent from Councilor Scott’s report that this is an issue that will be discussed further before there’s any final proposal.
Some of that discussion may arise at a future council meeting since a joint motion by Councilors Jenness, Nuon, and Gitschier requested “a detailed breakdown of parking pass holder and group agreement quantitates by garage and by rate class to inform decision making of the parking rates going forward.”
At the end of the meeting, there was an announcement that trash pickup this coming week and next week will be a normal schedule. That’s significant because the Christmas and New Years holidays, because they fall on Sundays, are observed on the Mondays that follow. Because of that, government offices are closed on Monday, December 26 and Monday, January 2, however, trash pickup will occur on those days as usual.
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Looking beyond City Council business, two opinions announced by the Massachusetts Supreme Judicial Court last week caught my attention. One involved physician-assisted suicide; the other the amount of damages awarded to a homeowner against a golf course for damage done by errant golf balls.
The assisted-suicide case was Kligler v Attorney General (SJC-13194) which was jointly brought by a doctor and a terminally ill patient who claimed that the Massachusetts Constitution granted the right “to a terminally ill patient to receive a prescription for lethal medication in order to bring about death at a time and in a manner of their choosing.”
The SJC held that the state Constitution did not grant such a right and that the crime of manslaughter may apply in such cases without violating the Constitution. (The Court’s focus was on the doctor who said they would like to prescribe such drugs to other patients now, rather than on the patient who was far from a “only six months to live” state).
Commonly referred to as “physician assisted suicide,” the Court defined it as the practice of providing a competent, terminally ill patient who has a short time to live with a prescription for medication that the patient may ingest in order to bring about a quick and painless death. The Court observed that ten states have legalized this practice but that the voters of Massachusetts in 2012 rejected a ballot referendum that would have allowed it and that of the dozen bills filed in the legislature to allow it, none have even received a vote.
The Court defined involuntary manslaughter as “an unintentional, unlawful killing caused by wanton or reckless conduct” with wanton and reckless conduct being “that which a defendant knew or should have known created a substantial risk of death or serious bodily injury.” The Court said the prior decisions have held that providing someone with the means of ending their life may constitute “wanton and reckless” behavior. (The Court cited the fairly recent Carter case in which the girlfriend of a young man who committed suicide was convicted of manslaughter for encouraging him to go through with it).
Here’s the Court’s conclusion:
“In sum, under our existing law, doctors who engage in physician-assisted suicide may risk liability for involuntary manslaughter.”
The golf course case, Tenczar v. Indian Pond Country Club, Inc., (SJC-13297) previously received extensive attention in the media when a jury awarded the homeowners $100,000 for property damage and $3.4 million for emotional distress against the adjacent golf course due to errant golf balls striking the plaintiffs’ home.
Now, the SJC has set aside the verdict and remanded the case to the Superior Court for a new trial on the grounds that the trial judge made an error in withholding evidence from the jury and in the instructions given to the jury.
Specifically, the home in question and the golf course were part of the same real estate development. When the plaintiffs bought the house, their deed from the developer included an easement in favor of the golf course to allow for the “reasonable and efficient operation of a golf course in a customary and usual manner.”
An easement is the right granted to one person to use land owned by another person for a particular reason. The most common types of easement are for a driveway used by a neighbor or to a utility company to run wires over or pipes underneath property owned by someone else. But you can have an easement for almost anything.
In this case, the trial judge excluded evidence of this “golf course operation” easement. The defendant golf course argued that having some golf balls fly off the fairway was included in the reasonable operation of a golf course so it had the right through the easement for its golfers to sometimes hit the plaintiffs’ home with their golf balls.
The SJC ruled that the jury should have been presented this evidence and because it was not, there had to be a new trial.