May 1, 2022
Tom Golden’s tenure as city manager commenced Thursday night (April 28, 2022) with an oath of office ceremony in the City Council Chambers at Lowell City Hall. It’s perhaps the toughest job in the city but it will be made easier at first by the millions of dollars available to the city through the American Rescue Plan Act (ARPA) and because of the $17 million in free cash that rolled over from the last fiscal year. But the extra money won’t last forever and when it runs out, the increased cost of government that remains after the extra money is gone will make governing much more difficult.
In the midst of last Tuesday’s meeting, the council went into executive session to finalize Golden’s contract. When the public portion of the meeting resumed two hours later, councilors unanimously voted to accept the contract as amended in the executive session and then asked City Solicitor Christine O’Connor to explain the contract to the public. O’Connor began by stating the actual written agreement will be made public after all parties have executed it, but the gist of the contract is that it is for five years at a starting salary of $235,000. As in previous city manager contracts, future cost of living wage increases are tied to other city employee contracts as are benefits and sick time and vacation time. Golden will also be able to earn merit pay raises based on regular evaluations by city councilors.
After the contract was discussed and a few agenda matters were quickly referred to public hearings, councilors voted to continue the rest of the agenda to this coming Tuesday’s regular council meeting (May 3, 2022). City Manager Golden’s management skills will be tested at his first meeting because of the 25 city council motions on last week’s agenda, only two were acted upon. The other 23 will be taken up on May 3 along with 15 newly filed motions.
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One of the two motions taken up by the council on April 26 was one by Councilor Corey Robinson:
Request City Solicitor work with the council to change DEI officer position to report to city council directly.
This motion came up early because several members of the public had registered to speak on it. All spoke against the proposal, urging councilors to keep the Diversity, Equity, and Inclusion position under the city manager. Several councilors expressed the same sentiments but all voted to refer the motion to the council’s personnel subcommittee for further discussion. That subcommittee is chaired by Erik Gitschier and has Robinson and Dan Rourke as members. As of today, no new meeting of that subcommittee has been scheduled.
The DEI position gained attention when the incumbent, Ferdousi Faruque, resigned earlier in April. (See my newsletter of April 10, 2022, for more information about that).
Councilor Robinson made a similar motion back at the January 11, 2022, meeting when he:
Requested City Manager hire outside legal firm to provide detailed outline on steps necessary to change the City Charter to include the position of City Solicitor as a council oversight employee similar to the City Clerk, City Auditor, and the City Manager.
The minutes of that meeting state the following about this motion:
In City Council, seconded by Councilor Scott, referred to Personnel Subcommittee. So voted. Councilor Robinson requested amendment with no objections stating that Manager explore costs to prepare RFP to outline needed steps for remainder of motion. Councilor Robinson noted the need to explore if any changes are needed and to get Council more involved in a policy basis. Councilor Jenness noted his filing a disclosure to discuss this matter and outlined Massachusetts General Laws which would run counter to the motion in accordance with Plan E form of government. Councilor Jenness noted such an effort could open door to any department in the city. Councilor Gitschier noted information requests are always helpful. Councilor Drinkwater noted that there are always pros and cons with requests and that this would have more cons in terms of management ability but gathering information could be a positive step if moving forward. Councilor Scott noted it is not at point at which to do this type of review. Councilor Drinkwater commented that it would be best served if discussed at a personnel subcommittee. Councilor Leahy noted matter should be voted up or down. Councilor Nuon supports gathering of information and assessing costs associated with it. Substitute Motion by Councilor Rourke to refer matter to Personnel Subcommittee, seconded by Councilor Nuon. Adopted per Roll Call vote 10 yeas, 1 nay (Councilor Leahy). So voted.
The Personnel Subcommittee has met on February 8 and on February 22. At neither meeting was the role of the city solicitor discussed so that is still pending.
The Plan E form of government was established by the state legislature in Massachusetts General Laws chapter 43 which was adopted by the residents of Lowell in 1942. It has remained our form of government ever since. The sections of that law dealing with Plan E (other “Plans” are also covered by chapter 43) clearly state that the city council appoints the city manager and hires the city clerk and the city auditor but that all other hiring of employees and the supervision of those employees are the responsibility of the city manager. So while it’s possible that the city could request the legislature to amend the law to allow the council to hire the city solicitor or the DEI officer or anyone else, it hasn’t happened in 80 years. If councilors are unhappy with the actions of a city employee (other than the clerk or auditor), the remedy is to address the problem through the city manager.
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On Thursday, the Massachusetts Appeals Court released its decision in the case of Dominik Lay v. City of Lowell. This case arose when Robert Hoey resigned from the school committee in early 2021 after using an anti-Semitic slur on a local cable TV program. Under applicable law and practice, Lay, as the candidate who received the most votes without being elected, was offered the vacant seat. However, the Lowell Election Commission held that Lay had not been a resident of Lowell at the time of the election and was therefore ineligible to serve. Lay filed an action in Superior Court challenging that ruling and the judge in that forum ruled in Lay’s favor and ordered him to be seated on the school committee. As a result of that ruling, Lay took office, completed that term, and continues to serve on the school committee after being reelected in November 2021. In this week’s decision, the Appeals Court affirmed the Superior Court judge’s ruling.
Much of the decision deals with various procedural aspects of the case but the court ended with a discussion of the concept of “residence” when it comes to voting and holding office. Since this is an issue that may come up again, especially in the context of Lowell’s district council and school committee system, it’s worth reviewing the standard set by the court:
The Appeals Court wrote that “residence” in election law equates with the legal concept of “domicil” adding:
“A person’s domicil is usually the place where he has his home. Home is the place where a person dwells and which is the center of his domestic, social and civil life. A change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least; the fact and intent must concur.”
The court listed many factors that should be considered when ruling on the residence of a candidate including:
residential address
voter registration
place of employment
driver’s license
car registration
bank accounts
tax payments
future plans
any other facts evidencing “attachment to the community and . . . desire and intent to remain.”
So in future elections, if a question arises about whether a candidate is a resident of the city or is a resident of the district in which he or she is a candidate, the above checklist will be a helpful guide to answering that question. (I also believe that for a district councilor or school committee candidate to be “qualified” to serve, the candidate must have lived within the district for a full year prior to the date of the election).
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Robert Hatem, a native of Lawrence but a longtime resident of Lowell who had a substantial impact on the civic life of this city, passed away on April 23, 2022. Although Hatem never held elected office, he did run for Congress in 1978 and in 1980.
The 1978 election was for the seat formerly held by Paul Tsongas who ran for U.S. Senate that year. Hatem ran in the Democratic primary with the following results:
James M. Shannon – 18,529
Raymond F. Rourke – 17,743
Robert Hatem – 16,359
Michael A. McLaughlin – 12,644
Ronald A. Burba – 3,524
In the Republican primary, John J. Buckley III defeated Nicholas D. Rizzo, 11,772 to 9,881.
Jim Shannon won the general election with 90,256 votes to Buckley’s 48,685 and Independent candidate James J. Gaffney III’s 33,835.
In the 1980 election, Hatem challenged the incumbent Jim Shannon in the Democratic primary. Shannon prevailed with 41,207 votes to Hatem’s 34,573. In the general election, Shannon defeated Republican William C. Sawyer with 136,758 votes to Sawyer’s 70,547.
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Finally, a reminder that on Saturday, May 7, 2022, from 11 a.m. until 1 p.m. at lala books at 189 Market Street in Lowell, Paul Marion and I will be talking about the latest edition of The Lowell Review which includes essays, poems, stories, criticism, and more from a variety of writers. We’ll give a short talk at 11 a.m. but will otherwise just hang out and talk informally with anyone who shows up. Printed copies of The Lowell Review will be available for purchase through lala books for $15 apiece for as long as the supply lasts.