November 13, 2022

This fall, I’ve been watching a lot of sports on TV. That’s rare for me because I’m hardly ever in front of the TV. But lately, if there’s an NFL or NBA game on, I’ll tune in.

My revived interest in pro sports, I think, helped take my mind off political news, particularly polls and pundits opining on the probable outcome of the midterm election. History tells us that in all but the rarest circumstances, whichever national party holds power tends to lose in the midterm election. Add to that the high price of food and gasoline and disaster loomed for the Democrats. Which made ESPN more interesting to me than MSNBC.

But on Tuesday, Democrats outperformed expectations. Consider that in 1994 Bill Clinton’s Democrats lost 54 seats; in 2006, George W. Bush’s Republicans lost 31 seats; in 2010, Barack Obama’s Democrats lost 64 seats; and in 2018 Donald Trump’s Republicans lost 42 seats. How many seats Joe Biden’s Democrats will lose in 2022 is not yet decided since the votes are still being counted, but whatever the final number, Democrats were expected to lose many more than they did. The same can be said for the U.S. Senate, control of which might not be decided until a December runoff election in Georgia (depending on the outcome in Nevada, where the votes from Tuesday are still being counted). Still, it will be a chaotic two years in Washington.

Closer to home, it was an historic night in Massachusetts politics as Maura Healey was the first woman elected governor and Andrea Campbell was the first black woman elected attorney general.

In Lowell, Healey defeated Republican Geoff Diehl, 66 percent to 32 percent and Campbell defeated Republican James McMahon, 66 percent to 34 percent. Questions 1 and 4 (tax on millionaires and driver’s licenses for people without documentation) won in Lowell and statewide. The Lowell vote on Question 1 was 59 percent Yes to 41 percent No. Statewide, Question 1 prevailed with 52 percent. On Question 4, the Yes vote in Lowell won, 57 percent to 43 percent. Statewide, Question 4 prevailed with 54 percent.

The vote from the towns surrounding Lowell was far more conservative. Despite losing statewide by nearly 30 points, Diehl won Dracut, 52 percent to 47 percent, and was within 6 points of Healey in Billerica, Tewksbury, and Tyngsborough. (Healey won Chelmsford, 62 percent to 37 percent). Campbell fared worse, losing Dracut and Tewksbury, and winning Billerica and Tyngsborough by six or fewer points. (Like Healey, Campbell won Chelmsford by a big margin, 61 percent to 39 percent).

The ballot question outcome in the towns was even more lopsided. Question 1 lost overwhelmingly in all five towns while Question 4 lost in five, wining only in Chelmsford and there by a 50.2% to 49.8% margin.

In the race for the 16th Middlesex District in the Massachusetts House of Representatives, Democrat Rodney Elliott easily defeated Republican Karla Miller, 7,172 votes to 3,810 in this open seat that was vacated when Tom Golden became Lowell City Manager. In the Chelmsford part of the district, Elliott prevailed with 3,058 votes to Miller’s 1,864; and in Lowell, Elliott won with 4,114 votes to Miller’s 1,946.   

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In a recent newsletter, I mentioned that I had been unable to find a copy of the rules of the City Council online. During the Motion Response section of Tuesday’s meeting, it was confirmed that the rules had not previously been online, but were just added in response to a Councilor Corey Robinson motion that they be placed on the website.

Tuesday evening, Councilor Robinson pointed out that the rules needed to be updated to, at a minimum, reflect the current structure of the council (specifically that there are eleven rather than nine councilors). Councilor Wayne Jenness, chair of the council’s Rules Subcommittee, said that review was underway.

The rules, which are available here, touch on some issues that have arisen at council meetings over the past several months. For example, Rule 5 “Regular Meetings” says this about when meetings must conclude:

“Provided that an agenda item is not then under consideration, City Council Meetings shall adjourn at or before 10:00 o’clock PM: and all unconsidered items remaining on the agenda at adjournment, be forwarded to the next regularly scheduled meeting, unless otherwise voted by a majority vote of the City Council.”

So it’s clear that the meeting is to end at 10pm or as soon as the agenda item already being discussed at 10pm is done. And it seems clear that any agenda items not reached because of the arrival of 10pm are automatically rolled over to the next council meeting agenda although this might be open to a different interpretation.

This rule gets confusing by the placement and wording of the final clause, “unless otherwise voted by a majority vote of the City Council.” Does that apply to the 10pm time limit, or does it apply to the “automatically rolled over to the next meeting” command? If it’s the former interpretation, then all you need to extend the meeting past 10pm is a majority vote of the council. But if it modifies the latter, the “majority vote of the council” would just apply to whether unfinished business gets carried over to the next meeting. (I suppose the council could vote not to carry it over, or to bring it up at a special meeting).

If that last clause only applies to the carryover portion, then to extend the meeting beyond 10pm involves a suspension of the council rules which is covered by Rule 32. That states “Insofar as these rules are not of statutory source or origin, the same may be suspended at any meeting by a voice vote of yeas and nays unless objected to by two Councilors.” That means that if two councilors objected to extending the meeting beyond 10pm, the meeting would have to end at 10pm regardless of whether all the other councilors supported going forward with the meeting.

When this very situation came up at a meeting earlier this year, the council complied with the “if two councilors object we can’t extend the meeting” interpretation. While I’m all for meetings concluding before 10pm, this might be something the Rules Subcommittee should clarify.

Another procedural matter that came up was a question about the minimum standards for allowing someone to “petition” the council. Although not expressly stated, this was in response to the Critical Race Theory petition that I wrote about two weeks ago. This will also be on the Rules Subcommittee docket.

During this discussion, Councilor Rita Mercier asked a somewhat related question about the Open Meeting Law: if she called each councilor in turn to ask if they would support a motion she was about to file, would that constitute a violation of the law. Assistant City Solicitor John McKenna said that it would.

According to the Open Meeting Law Guide published by the Attorney General’s office, there is a four part test to determine whether a communication constitutes a “meeting” covered by the law:

1. Is the communication between or among members of a public body;

2. If so, does the communication constitute a deliberation;

3. Does the communication involve a matter within the body’s jurisdiction; and

4. If so, does the communication fall within an exception listed in the law?

The City Council is clearly a public body, so any communication (which would include a conversation, a text, or an email) would meet part one of the test.

A communication is a “deliberation” if the substance of the matter is discussed. In other words, if the communication is about scheduling, that’s not a deliberation. If the communication is, “Do you think you can support my motion?” that is a deliberation. However, to be a deliberation, the communication must involve a quorum of the council which would be 6 councilors of the 11 member body. Critically to Councilor Mercier’s question, speaking to 6 councilors individually, one after the other, would constitute a violation. The law is very clear that this type of serial communication is prohibited. In other words, the six councilors don’t all have to be at the same place at the same time for the communication to violate the law.

Part thee of the test is whether the matter discussed is within the body’s jurisdiction. Although it’s not completely clear, I think if a councilor wanted to file a motion that the council ask Congress to clarify whether Covid Relief Funds can be spent on a school construction project, it would be OK for the maker of the motion to call individual councilors to discuss it because the rules for how Covid funds may be spent are not within the jurisdiction of the council.

Part four of the test is whether the communication falls within an exception. This isn’t about executive sessions which have their own list of what is allowed. Instead, this contemplates things like all councilors meeting at Lowell High for a tour of the new gym. They can all be there together, but they may not engage in deliberations. A quorum of councilors may also attend a neighborhood meeting provided they do not deliberate. In other words, councilors could listen to comments from other meeting attendees, and ask questions, but would not be permitted to say, “I’ll file a motion to address this.” Because within the prevailing interpretation of the Open Meeting Law, that statement would constitute a deliberation provided at least six councilors were present.

Now as a practical matter, I assume councilors frequently discuss with their colleagues outside of public meetings matters that are covered by the Open Meeting Law. The issue is whether anyone makes a complaint about it. That’s unlikely if everyone is getting along, but that doesn’t last forever.  

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Today is the 40th anniversary of the dedication of the Vietnam Veterans Memorial in Washington. In recognition of that anniversary, we have three related blog posts on richardhowe.com this week.

The first provides biographical sketches of the 21 soldiers and Marines from Lowell whose names appear on the Wall.

The second is a review I wrote in 2010 about a documentary on Maya Lin, the artist who designed the Vietnam Wall.

The third is a recollection of Vietnam veteran Dean Contover of attending the dedication of the Wall in 1982.

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Also on richardhowe.com this week is a profile written by David Daniel about Chaz Scoggins who this year retired as an official scorer of Boston Red Sox games.