February 19, 2023
The City Council on Tuesday night moved expeditiously through a long agenda. The meeting included several thoughtful discussions where decisions were made in public in real time. This wasn’t the case at some meetings last year when I often got the sense that everything had been worked out ahead of time and that the public meeting just ratified decisions made out of the public eye.
Here are some of the items discussed:
Free Cash – This is the total of money appropriated but left unspent at the end of the fiscal year plus receipts in excess of revenue estimates less uncollected taxes. Once the State Department of Revenue “certifies” the city’s free cash calculations, the city may use that money for other obligations. The DOR free cash certification for FY22 (which ended June 30, 2022) was $7.86 million.
Tuesday, the City Manager and the Finance Department presented the Council with their recommendation for how that money should be spent. The bulk of the funds will go to the city’s stabilization fund to replenish the $3.17 million used in this year’s budget to reduce the tax increase needed for FY23 and also to replenish the $2.83 million that was transferred to the Parking Enterprise Fund to “stabilize” that fund which is supposed to be self-supporting.
$30,000 for “Fire Department New Recruit Charges.” Lowell firefighters have historically received training at the state fire academy, however, there is an acute shortage of slots there. The city of Boston runs its own fire training academy with slots available, but there is a $5000 per recruit charge for Boston whereas the state academy has no similar charge. In the past, this Council and its predecessors have struggled to meet fire department overtime costs which are inflated by a lack of personnel. Consequently, the quicker new recruits can get on the job, the more likely overtime charges will go down, so everyone believed this to be a wise expenditure.
$106,365 for “Grant Deficits” - CFO Conor Baldwin described this as a collection of old, scattered and not particularly big deficits caused by disallowed grant expenditures. For example, if a department received a grant to purchase ink pens, bought $1,000 worth of red pens and submitted the invoice to the grant administrator for reimbursement but then had the grant person point out that the grant allowed only blue or black pens and then disallow the reimbursement, someone had to pay for the red pens that had been ordered and received, so the city would pick up the tab from some other account. This money would replenish wherever those funds came from.
Councilors pressed Baldwin on this, likely with good reason. Grant funding can be tricky. Everyone takes the bows when the grant is received but they don’t have to wrestle with the administrative rules restricting expenditures. If a city employee has to spend so much time navigating the intricacies of a grant that it detracts from the employee’s other duties, maybe the grant wasn’t worth it in the first place. But the city also needs a disciplined culture of compliance with fiscal rules on matters like this. “Grant deficits” or “bad bills” or other fiscal issues can be easily dismissed as inconsequential in the big picture of city finances, but they also suggest a weakness with fiscal procedures that’s more a workforce-wide problem than a CFO or Auditor issue.
$94,626 for “LHS Flooding Deficit from Insurance Claim” referred to a 2021 burst pipe in the basement of the Lowell High 1922 building that caused extensive damage to the building and to items inside it. This item gave Councilors a platform to highlight their animosity towards the School Department when it comes to expenditures. Specifically, Councilors opined that since the “city” is only responsible for the buildings, then any costs for contents that were damaged should be borne by the School Department.
If Councilors want to frame this as a landlord-tenant matter, let’s analyze it in that regard. Landlords are responsible for the heating system in a building. The law imposes a duty on a landlord to keep that system in good repair. But if the landlord fails in that duty and allows a system that constantly fails – as has been the case with the city and the heating system at Lowell High - with the predictable result that pipes will break and damage will be done, then the law would hold the landlord liable for damage to contents of the building since that would be the natural and probable consequence of the landlord’s negligence.
$669,320 to the Law Department for “Professional Services” got some attention from School Committee member Jackie Doherty who had registered to speak on this at the Council meeting (and on a related motion discussed below). Here is the explanation offered for this transfer in CFO Baldwin’s February 7, 2023, memo to the City Manager:
The law department has communicated a need for additional funding for various legal matters. This is not an uncommon need, as many of these totals are unknown when the budget is set, and the city is typically unable to appropriate sufficient funding to accounts in the law department due to budget constraints. The turnover in the Law Department staffing has also further driven the need for additional outside council services. [Emphasis supplied].
This short paragraph addresses two different things. First is “additional funding for various legal matters.” Something like this came up last summer during deliberations on the FY23 budget. My memory is that Councilor Erik Gitschier pointed to a surplus in the prior year’s appropriation for the Law Department and suggested the unspent amount in the previous year should be deducted from the coming year’s budget. Then-City Solicitor Christine O’Connor recommended against doing that, explaining that the appropriation was used to pay for things like damage claims that arose unexpectedly in the course of the year. Having that money already in the budget was more efficient than constantly coming to the City Council for midyear transfers. My memory again is that Councilors sided with O’Connor and left the money in the budget. Despite that, the Law Department now needs a substantial infusion of funds. Have there been a succession of claims against the city that have recently been paid out, or is this for something else?
That “something else” is suggested in the last line of the portion of the memo quoted above, the “need for additional outside council services.” Given that O’Connor and a number of other lawyers have recently left the Solicitor’s office for positions elsewhere it’s understandable that the city might need outside legal help to bridge the gap until the Solicitor’s office is again fully staffed. That might take a while since current City Solicitor Helene Tomlinson told Councilors that while she is authorized eight lawyers in the Solicitor’s office, there are only four employed now.
The Solicitor’s Office staffing came up during debate on a motion by Councilors Vesna Nuon and Corey Robinson that requested Mayor Sokhary Chau (in his capacity as Chair of the Lowell School Committee) “urge the School Committee to Withhold Retaining Outside Counsel for 6 Weeks to Enable the City Law Department to Investigate Any Possible Claims.”
This was the second matter that School Committee member Doherty had registered to speak about. In her remarks, she said that allegations of improper hiring practices within the School Department had arisen last fall and that the School Committee had then looked to the Solicitor’s office to investigate but due to the extensive staff turnover in the Solicitor’s Office, that wasn’t feasible. It was then that the School Committee looked to outside counsel to conduct an independent investigation.
During the lengthy (but interesting) Council debate that followed, it seemed that a majority of City Councilors were going to support the motion on various grounds, namely that the new City Solicitor should be given an opportunity to investigate, or they were unaware of any allegations because “there was nothing in writing,” or the motion was just making a suggestion to the School Committee and was not telling them what to do.
This latter point was in reply to Councilor John Leahy’s emphatic criticism of the motion that it trespassed upon the authority of the School Committee. Even if worded as a suggestion, it embarked on a slippery slope, Leahy maintained.
After most Councilors had spoken, Councilor Erik Gitschier gained the floor and asked the makers of the motion to withdraw it since the extensive Council discussion had already given Mayor Chau a clear sense of the will of the majority of the Council which Chau could then convey to the School Committee and that, since the motion was non-binding, forcing a vote on it would divide the Council which has otherwise maintained good relations through the term.
That argument seemed to carry some weight, but the decisive moment in the debate came when another Councilor asked City Solicitor Tomlinson directly about the capacity of her office as currently constituted to conduct this investigation expeditiously. This seemed in response to Doherty’s plea that too much time had already passed to get the facts and any further delay would be unconscionable. To the question about staffing, Tomlinson replied that the Solicitor’s office called for eight attorneys but there were only now four on staff. She added, “We’re all stretched thin, but we’re committed to getting this done.”
The staffing reality severely undercut the “we should let the Solicitor do the investigation” argument of the anti-outside counsel caucus, and I imagine the inventory of favored matters like collective bargaining agreements and contracts for services for favored projects being held up at an understaffed Solicitor’s office flashed before Councilors’ minds, and Councilors, in the interest of “Council unity” all agreed that the motion should be withdrawn.
In answer to the charge that “there’s nothing in writing,” Doherty called out from the spectator’s gallery a reference to an email sent by City Solicitor Christine O’Connor as she departed city service. That email was easy to find online among School Committee agendas and documents. Here are the relevant portions of O’Connor’s email which was dated November 20, 2022, and was sent to the entire School Committee, the Superintendent of Schools, and Helen Anderson and John McKenna (two attorneys in the Solicitor’s Office, although Anderson left soon thereafter).
Dear Mayor and committee members,
As I conclude my service with the City, I write regarding recent complaints made to the Law Department alleging ongoing violation of the District's hiring policies, DESE regulations, and state law. While these complaints also implicate violations of applicable CBA provisions, the allegations taken as a whole, reach well beyond the otherwise exclusive jurisdiction of available grievance procedures. Specific claims of retaliation have also been made after individuals reported claims to supervisors, certain members of the Central Office, and the union. As such, those who have come forward should at this stage be viewed as falling under the protection of the Whistleblower Act.
For the above reasons, I would recommend that the Committee retain outside counsel to formally investigate these claims and report their findings to the Committee and the Superintendent.
Details of these complaints have been left with attorney Helen Anderson of the Law Department.
If this matter is of further interest to you, a full copy of O’Connor’s email, Doherty’s related email, and the scope of services for outside counsel are all available as a single PDF on the city’s website.
Predictably, the matter didn’t end there. The next evening the School Committee voted 4 to 3 for a motion by Committee member Susie Chhoun to hold off on hiring the outside counsel for one month to give the City Solicitor’s office time to investigate. According to the Lowell Sun, City Solicitor Tomlinson and First Assistant Solicitor Corey Williams, both participating in the meeting via Zoom, told the committee that at least one complainant has already come forward unilaterally and met with the Solicitor’s office, so in a way, the investigation by the Solicitor’s office is already underway. Voting in support of the motion to delay hiring outside counsel were Chhoun (the maker of the motion), Mayor Chau, and School Committee members Dominik Lay and Eileen DelRossi. Voting against the motion were School Committee members Doherty, Connie Martin and Stacey Thompson.
The Sun story, “Solicitor: Complainants coming forward with concerns about Lowell school district’s hiring practices” by Melanie Gilber is available on the Sun’s website.
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Despite Monday being a holiday, trash collection will proceed on the regular weekly schedule. A recent mailing from the city’s Recycling office explained that trash service will be delayed a day for Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Years (provided those holidays fall on weekdays). However, there will be no trash pickup schedule change for Martin Luther King Day, Presidents Day, Patriots Day, Juneteenth, Columbus Day, and Veterans Day.
Although the City Council often cancels meetings during school vacation week, that’s not the case this week. The Council has a full agenda for Tuesday night.
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Today on richardhowe.com I posted some thoughts on Chinese surveillance balloons and other unidentified objects in the sky.