June 30, 2024

Sometimes when you watch a Lowell City Council meeting you get a sense that there are two meetings happening simultaneously. One is out in the open, but the other is couched in cryptic language and verbal slips that make clear that the Councilors are privy to more than they are disclosing to the public.

This past Tuesday, however, that shadow meeting burst into public view, triggered by a motion from Councilor Corey Robinson that requested “City Manager have City Solicitor provide a report on elected official requirements to accept employment, as well as are there any ‘cooling off periods’ required (update of 1/23/24).” The ensuing debate suggested at least two things: (1) a current councilor is pursuing a full-time job with the city; and (2) there are deep divisions among councilors.

The episode is captured at about 1:22:30 of the LTC YouTube recording of the meeting. After the motion was called and Robinson offered his explanation for it, Councilor John Descoteaux, participating in the meeting via Zoom with the hoarseness of his voice suggesting his absence was illness-related, was the first to speak. Here is what ensued:

Descoteaux: I did listen to Councilor Robinson but I do find the timing of this re-filed motion quite coincidental, or curious, I guess. If you give me a little leeway here, Mr. Mayor, Councilor Robinson has nine motions on the agenda tonight. If all eleven councilors filed nine motions this week, we’d have 99 motions, we’d be here to 4 o’clock in the morning, the manager’s office and department heads would spend their entire time responding to motions. I do not want to discourage my colleague from important matters. I take exception, however, to the lack of self-awareness evidenced by the sheer volume of motions that have a domino effect on city government.

Councilor Gitschier [interrupting]: Could we have a point of order . . .

Descoteaux: I still have the floor.

Gitschier: I asked for a point of order.

Mayor Rourke: Councilor Descoteaux, on [motion] 7.7 please.

Descoteaux: I take further exception to a councilor who still has a serious criminal case pending filing a motion . . .

Councilor Robinson [interrupting]: Point of order. Are we talking about the motion on the floor or are we going to start fantasizing on theories.

Rourke: Councilor Descoteaux, please stick to 7.7.

Descoteaux: I did. I just made my last sentence.

There’s a lot there to unpack. Descoteaux’s criticism of Robinson for the number of motions he makes deserves further scrutiny. Since January 1, 2024, there have been 24 regular city council meetings. Setting aside a flurry of “refiled motions” at the start of the year and attributing one motion to each councilor who jointly filed a motion with a colleague, there were 241 motions made during that six-month period. Here are the number of motions filed by each councilor:

1. Corey Robinson – 65

2. Erik Gitschier – 45

3. Vesna Nuon – 35

4. Paul Ratha Yem – 22

5. Kim Scott – 16

6. John Leahy – 14

7. Wayne Jenness - 12

8. John Descoteaux – 9

9. Rita Mercier – 9

10. Sokhary Chau – 7

11. Dan Rourke – 7

If you’re a regular reader of this newsletter you know that a frequent criticism I have of this and the prior city council is the number of motions they file. Every motion that’s filed requires a formal response from the city manager, a response that is inevitably written by a high-level city employee. The primary job of such employees is to direct the operations of the city workforce, but with a big chunk of their time devoted to responding to council motions, other more important tasks go undone.

In addition, the specificity of so many of the motions displays an aggressive effort by the councilors making these motions to micromanage city operations. This trespasses on the authority of the city manager but, as I’ve written before, some city councilors, most notably, Corey Robinson and Erik Gitschier, act as wanna-be city managers rather than fulfilling their actual duties as councilors.

Moving on to Descoteaux’s more incendiary comment, namely “I take further exception to a councilor who still has a serious criminal case pending filing a motion . . .” (remaining remarks cut off). Here, Descoteaux was referring to the two counts of domestic assault and battery that have been pending against Robinson since his November 16, 2023, arrest. Although Descoteaux’s words were interrupted, his point seemed to be that it was disingenuous for a councilor with pending criminal charges to present himself as the guardian of ethics on the council.

(Coincidentally, just three days after this meeting the Lowell Sun reported that Commonwealth v. Corey Robinson is scheduled for a nonbinding bench trial in the Lowell District Court on July 18, 2024.)

For his part, Councilor Robinson, on TV at least, seemed uncharacteristically restrained in his response during this episode. He repeatedly stated that he had filed this same motion in January, that it had been endorsed unanimously by his council colleagues back then, yet there has never been a response to the motion so he was simply refiling it. Each time he said this, he rhetorically asked why everyone who had supported the motion back in January now was opposed to it. Robinson went so far as to have someone queue up and play the video clip of him presenting the motion back in January.

Presumably, Robinson’s public-facing serenity flowed from his expectation that after his presentation the world would come to see the apparent hypocrisy of his colleagues in their inconsistent positions in supporting the motion in January but opposing it now. Undoubtedly that’s how Robinson and his supporters still see it. But there are other inferences that might be drawn from these facts. One is that given the fire hose stream of motions flowing from Robinson, councilors have fallen into the trap of routinely rubberstamping them all regardless of how misguided they personally believe them to be.

Another inference is that councilors are intimidated by Robinson. That’s likely what Councilor Kim Scott was referring to when she characterized Robinson as a bully. Here is what Councilor Scott said about Robinson and his motion:

“The timing is definitely suspect on this. I’m going to agree with Councilor Descoteaux. I’m definitely voting No on this. We have an independent agency that administers the conflict of interest law. If you want an opinion, you can ask for the opinion. We don’t need to come on the floor and bully other members. And I stand behind that. I’m a definite No.”

I agree with Councilor Descoteaux and am relieved someone finally brought these issues to the council floor, but the fact remains that Descoteaux launched his effort via Zoom from a remote location. The councilor who showed real courage on Tuesday night was Kim Scott who made her comments with Robinson sitting just feet away at the desk right next to hers.

After some further discussion, Mayor Rourke directed the clerk to call the roll. Here’s how the vote went:

• Councilor Jenness: NO

• Councilor Leahy: NO

• Councilor Mercier: YES

• Councilor Nuon: NO

• Councilor Robinson: YES

• Mayor Rourke: NO

• Councilor Scott: NO

• Councilor Yem: NO

• Councilor Chau: NO

• Councilor Descoteaux: NO

• Councilor Gitschier: YES

The motion failed with 8 voting NO and 3 voting YES.

A companion motion by Robinson requesting “the City Solicitor provide a detailed overview of the state ethics regulations and how they apply to elected officials and the municipal employment process” also was rejected, however, on this motion Councilor Vesna Nuon voted Yes which made the outcome 7 votes against and 4 votes in favor, so the motion still failed.

****

What about the underlying issue, the question of whether a sitting city councilor can be hired to a fulltime job somewhere in city government. A lawyerly answer to that question is, “it depends.”

Massachusetts General Laws chapter 268A “Conduct of Public Officials and Employees” commonly referred to as the state ethics law certainly applies. The Massachusetts State Ethics Commission interprets and enforces that law. Section 20 of chapter 268A seems to be an obstacle to a current city councilor being hired to a new city job. Here’s the relevant part of the statute:

“This section shall not prohibit an employee of a municipality with a city or town council form of government from holding the elected office of councillor in such municipality, nor in any way prohibit such an employee from performing the duties of or receiving the compensation provided for such office; provided, however, that no such councillor may vote or act on any matter which is within the purview of the agency by which he is employed or over which he has official responsibility; and provided, further, that no councillor shall be eligible for appointment to such additional position while a member of said council or for six months thereafter.”

Back in 2005, the State Ethics Commission did a deep dive into this section in a case that coincidentally involved a Lowell City Councilor. In November 1999, Rithy Uong, who was already employed as a guidance counselor at Lowell High School, was elected to the Lowell City Council. Because of the so-called “city councilor’s exception” quoted above, Uong was able to keep his school department job while also serving as a city councilor although he was only entitled to collect a salary for one of the positions.

Uong ran afoul of the “councilor’s exception” in 2002 when he was promoted to the position of Lowell High housemaster while still serving as a city councilor. The Ethics Commission asserted that the new position which included a substantial salary increase constituted a prohibited “additional position” per the last sentence of the above statutory excerpt. Uong countered that it was not an “additional position” but merely a substitute for the position he already held.

The Commission and the hearing officer rejected that argument, saying that interpretation would give a city councilor already employed by the city an “inside track” on promotions, something the legislature sought to prohibit with the “such other positions” language. In a footnote, the Commission also stated that this section barred the appointment of a city councilor to a city position not already held when the councilor was first elected. 

Fortunately, the State Ethics Commission is generous with confidential advice which is just a phone call away. The law is complex and heavily dependent on the unique facts of each case. Relying on someone other than the Ethics Commission for advice can be risky. Several Methuen city councilors learned that lesson not long ago when the Commission found that their votes on a particular union contract violated the Ethics law. In each councilor’s case, the decisions finding them in violation shared this same line: “the [councilor] relied on erroneous advice from the city solicitor.” Unfortunately for those councilors, the “erroneous advice” was no defense to the violations.

When this motion came up in Lowell on Tuesday, among the reasons cited by several councilors in voting No was their belief that interpretations of State Ethics laws are best left to the elected official involved and the State Ethics Commission. Given the experience in Methuen, that seems like the proper position to take.

However, other laws besides State Ethics come into play. For instance, Chapter 43, section 96 (“City council; membership; tenure”) states “Section eight of chapter thirty-nine shall apply to members of the city council.” That section (c. 39, s.8 “Compatibility of offices”) says: “No member of the city council shall, during the term for which he was chosen, either by appointment or by election of the city council or of either branch thereof, be eligible to any office the salary of which is payable by the city.”

That statute became an issue in Lowell back in 1989. That spring, Assistant City Manager Roseanne Riddick resigned, and City Manager Jim Campbell wanted to hire Brian Martin for the job. However, Martin was a sitting member of the city council and chapter 39, section 8 left Martin ineligible for the position.

Not to be deterred, the city sought an exemption and on July 19, 1989, the Massachusetts State Legislature approved Chapter 256 of the Acts of 1989, “An Act authorizing the City Manager of the City of Lowell to appoint City Councilor Brian J. Martin of the city of Lowell to the position of Assistant City Manager of said city.” Here’s the language of that act:

SECTION 1. Notwithstanding the provisions of section eight of chapter thirty-nine of the General Laws and any other general or special law to the contrary, the city manager of the city of Lowell is hereby authorized to appoint Brian J. Martin, who is presently serving as a member of the city council of said city, to the position of assistant city manager of the city of Lowell; provided, however, that upon his appointment as said assistant city manager of the city of Lowell he shall resign as a member of the city council of said city.

SECTION 2. This act shall take effect upon its acceptance by the city of Lowell during the current year.

So even if the law bars a sitting city councilor from being hired as a fulltime city employee, the legislature has the power to carve out an exception, as it did in Brian Martin’s case. (Martin served as assistant city manager under Jim Campbell and then Dick Johnson and became city manager in his own right in August 1995, serving in that job until 2000.)

Which is not to say hiring a city councilor to any government job within the city is necessarily a good idea. In the case of Brian Martin, it worked out well for the city. Another case might turn out differently. Which is probably why the system leaves such things to up to the voters who in the next election can ratify or reject the actions of every city councilor.