!PLANET EXCLUSIVE! BOMBSHELL DISCLOSURES IN SPECTRUM CASE: (1) CITY ALSO AGREED TO PAY COMPANY AN ADDITIONAL $76,500 TO RELOCATE and (2) TWO SECRET SESSIONS HELD … WE SHARE WHAT WENT ON OUT OF PUBLIC VIEW … plus … a STEP-BY-STEP WALK THROUGH THE CRUCIAL TIMELINE OF WHO KNEW WHAT AND WHEN
By DAN VALENTI
PLANET VALENTI News and Commentary
NOTE: THIS VERSION HAS BEEN THOROUGHLY EDITED AND IMPROVED FROM THE ORIGINAL POST OF EARLIER ON FRIDAY, AUG. 31, 2012. THIS IS THE ‘LIVE’ VERSION, AND WE REQUEST THAT ANYONE WHO IS uSING THE PREVIOUS ONE TO DISCARD AND WORK FROM THIS VERSION OF WHAT IS AN AMAZING STORY.
(FORTRESS OF SOLITUDE, FRIDAY, AUG. 31, 2012) — This story is immensely complicated, so let’s cut to the chase: First, the city is on the hook not just for $100,000 for the Spectrum Health Services settlement but also for a relocation settlement to the company of $76,500. Second, there were not one but two executive sessions of the case involving the mayor, the city solicitor, and the city council.
There are two versions of what happened, when; who knew what, when; and why it matters or doesn’t. The mayor has one version, and three city councilors have the other. The Absolute Truth, which is unknowable, lies with a combination of both versions, somewhere in the wide-thin ellipse of their intersection.
THE PLANET Did Our Due Diligence with an Open Mind, Determined to Let the Facts Take Us ‘Somewhere’
THE PLANET talked at length, in depth, and for hours with both sides, gathered as much of the hard evidence we could find, and we have come to the conclusion that the councilors have the more credible version of events. This wasn’t our original supposition going into this case, but we suspended all judgments until we got as many of the facts as possible, heard the presentations of both sides, asked our questions, and analyzed. THE PLANET doesn’t pretend to have the full grasp of this baffling case, but we would hold by our assertions as the ones which bear up best under the preponderant weight of the evidence.
Letting the Facts and Not Persona Feelings or Emotions Decide This Case.
In saying that, let’s be clear: THE PLANET finds no hard evidence of intentional deceit or out-and-out subterfuge. We cannot read minds our know inner motivations. We can only go by the actual record — mostly court documents — and draw our best reasonable conclusions trying to come up with a narrative that fits the known facts. We know, for example, that Donna Mattoon, the mayor’s director of administrative services, is fiercely loyal to Mayor Dan Bianchi, and that spills over into an emotional and maternal defense of him, regardless of right or wrong. We find such personal loyalty commendable, inspirational, but of absolutely no help in determining the facts of the Pittsfield-Spectrum case.
When we examine the testimony, THE PLANET finds a city solicitor whose imprecise language led — rather, misled — the council on the initial $100,000 appropriation. Was that intentional? We cannot say.
THE PLANET finds a mayor who was handed a giant shit sandwich leftover from a case initiated in the late stages of his predecessor’s final term and didn’t know what to do with it.
THE PLANET does find a competent, litigiously aggressive company whose professional track record in the methadone business is exemplary and whose court triumphs are lengthy.
Finally, THE PLANET finds a classic case of miscommunication between the council and the Corner Office whose blame is on everyone involved, especially Dan Bianchi, Kathy Degnan, Donna Mattoon in the first and largest part part; Kevin Sherman, Jonathan Lothrop, John Krol, and Barry Clairmont in the second part; and the remainder of the council in the smallest and third. As a consequence of this failure to communicate, Mary Jane and Joe Kapanski were again underserved by the officials serving of the government which the K Couple own.
While a knee-jerk reaction might be to dismiss the claims of Lothrop, Krol, and Clairmont as politically motivated, that would give their credible claims too short a shrift and have to be done in denial of the evidence. We find they have a case, which they have documented well and presented — at least to THE PLANET — more convincingly than the corner office has.
Is there additional information to be discovered? Perhaps. Are there more facts to come out before the dust settles? Maybe. Could any such new information change this judgment? Could be. All that is moot, however, in light of the evidence in hand.
That being said, will there be political fallout from their actions? Possible? Will it benefit the council trio or the mayor? We can’t say, but THE PLANET believes that political considerations, while they may have entered into this, were not the primary motivations of three city councilors honestly trying to grapple with what to them was a bizarre and inexplicable administration request for money.
There Are No ‘Bad People’ in this Case, Just Bad Actions
Let’s be clear on one other matter. If we were writing for a national audience, we wouldn’t have to make this point, but our audience is local and regional. Pittsfield is a small city, not so much in population but in associations and connections. Too often, when we cover politics, the principals in a story feel they are “targeted” and can take criticism personally. Their families and friends feel THE PLANET is being unfair, on the attack, and worse. That is never the case. We don’t operate that way.
Thus, we again say: These are all decent, honorable people, trying their best but often falling short. It doesn’t mean they are bad people but ineffective in this particular case.
As for the political ramifications of this story, that will largely be up to Bianchi, Mattoon, Degnan, Sherman, Lothrop, Krol, Clairmont, and the other councilors. A special onus will be on Kevin Sherman. As council president, his job will be to keep this situation from becoming a Pandor’a Box that will prevent a rational functioning of government from now until the end of 2013 (actually, to the municipal election of 2013).
The political fallout could cause the situation to spiral out of control, or it could be a learning situation for everyone and actually lead to better mayoral-council relations. It will also be up to Bianchi and the three councilors to rise above this — or not — and establish a productive working relationship on behalf of their constituents, who depend on them and them alone for fair and honorable representation.
The Strange Case of The Council 3 and The Corner Office Trio
We have spent the better part of this week tracking down leads, gathering and reading documents, and interviewing the principals and non-principles in the Strange Case of The Council 3 and The Corner Office Trio.
We refer, of course, to the fight that has broken out between two sides of three. The plaintiff’s are The Council 3 (TC3), my Right Honorable Good Friends Jonathan Lothrop of Ward 5, John Krol of Ward 6, and Barry Clairmont at large. The defendants are The Corner Office Trio (T-COT): Mayor Dan Bianchi, director of administrative services Donna Mattoon, and city solicitor Kathy Degnan.
TC3 divided by T-COT a Formula for a Political Firestorm
TC3 contends that T-COT deliberately misled the city council on the settlement agreement the latter entered into with Spectrum Health Systems regarding the company’s establishment of a methadone treatment facility in Pittsfield. Initially, Spectrum wanted to locate the facility in the Yon Building at 42 Summer St. The Ruberto Administration fought that in court, successfully, and out of court, irrationally and hysterically.
After Bianchi and Degnan took over management of the case, the two sides reached a tentative agreement on a Stoddard Avenue location, next to Dwyer Funeral Home. That exploded in a wave of neighborhood protest, and the owners of the building said they would not sell to Spectrum. Finally, under the settlement, Spectrum, it was agreed, would locate in the original Summer Street location, in what is informally known as “the Nautilus Building.”
To sort all of this out, the timeline must be understood. The timeline is critical. That is the skeletal scaffolding on which the understanding of not necessarily who’s right and who’s wrong or who’s telling the truth and who’s lying, but which versions of the events — the city’s or the council’s – is, based solely on the evidence and the facts, more credible.
We think the greater credibility lies with our Right Honorable Good Friends on the council. They have a beef. We say this based on exhaustive amounts of due diligence, research, interviews, and weaving through mounds of documents, transcriptions, affidavits, case summaries, civil dockets, and the like.
THE PLANET cannot judge if the intent of the Bianchi Administration was to deliberately mislead the council. We can only say that, on the basis of our factual understanding of the paper trail, the administration made some key mistakes and could have, with greater communication with councilors and a better performance in federal court by solicitor Degnan, have avoided this mess. Before we go further in our exposition, …
… Allow us to share two pieces of news that have yet to be published, the ones with which we began this column:
(1) Under the terms of the settlement signed by Mayor Bianchi and solicitor Degnan for the city, long after Mayor Ruberto had left office; Spectrum CEO Charles Faris for his company; and attorney Paul Holtzman representing Spectrum, the city agreed to pay Spectrum $100,000 by July 16. TC3 and COT have wildly divergent explanations for the payout. Here’s what we didn’t know until now: The city also agreed to a payment of $76,500 “for relocation to another mutually acceptable site.” Bombshell #1.
(2) There were two executive sessions on the Spectrum matter, each highly revelatory, the first on June 26, 2012, and the second on July 3. Bombshell #2.
June 26 Executive Session (with More on It Later)
According to city clerk Linda Tyer‘s minutes of the June 26 secret session, the city notified the council that it would continue with the Spectrum lawsuit, even though it “is not a winnable situation.”
Not winnable? Perhaps, but there appeared to be a lot in play for the city. Prior to that time, the city had been successful three times in Federal Court against Spectrum:
* On June 15, 2011, Judge Michael Ponsor denied Spectrum’s request for “emergency injunctive relief” so it can immediate begin renovation the Summer Street offices and open the methadone clinic.
* On Nov. 15, 2011, Judge George O’Toole denies Spectrum’s motion for a preliminary injunction to open its facility under the Dover Amendment, which allows a zoning exemption for educational use. The judge rules that Spectrum “has not adequately demonstrated an adequate likelihood of success on the merits of its claims.”
* On Feb. 3, 2012, O’Toole denies another request for relief presented by Spectrum, saying, according to the civil docket, that “There has been no change in circumstance since this Court’s Nov. , 2011 Order denying the plaintiff’s motion for a preliminary injunction.”
In these three successful actions by the city — the first two while Jimmy Ruberto is mayor and the third under Bianchi’s helm — attorney Rich Dohoney, then city solicitor, represented Pittsfield. On March 7, 2012, new solicitor Degnan took over for Dohoney. After that involvement, the city’s court performance took a decided turn for the worse and Spectrum, taking advantage, got better in court.
A Winning Streak
That’s three times the city prevailed in court over Spectrum. How many people knew that? We just shared the three dates above.
TC3 cites these as reasons to believe the city had more leverage in the subsequent settlement with the company than anyone was led to believe. In short, while today everyone agrees/concedes there would be no way ultimately to keep Spectrum out of Pittsfield based on the federal definition of heroin addicts as disabled people covered the the Americans with Disability Act, the three councilors told THE PLANET they never would have agreed to sign off on the $100,000 payment earlier in June had they known that payment was for Spectrum.
Clairmont, Lothrop, and Krol told THE PLANET that they believe the city could have worked with Spectrum and found it a suitable location without paying a cent in tribute. Which leads to the infamous …
… $100,000 Payout — Was It Necessary?
Did the city have to pay out this money, which, remember, was agreed to by Mayor Bianchi and Degnan and not by the previous administration? The councilors are saying this agreement was done without their knowledge and, had they known then what they know now, would have recommended a more robust response to Spectrum in agreeing on the terms of settlement.
Did the city have an obligation to inform the council? Technically, no. Should it have, given that the council, not the mayor, appropriates the money? By all means, yes. DOesn’t it stand to reasons and appease our yearning for common sense that when we have to go to someone for money, we try to keep that someone as fully informed as to our needs as possible.
Here’s where it appears solicitor Degnan and Mayor Bianchi blew it.
This gets as layered as a baklava, but please follow:
— On May 14, 2012, Mayor Bianchi presented to the city council a draft of the municipal budget. Included in this document was a draft of the solicitor Degnan’s budget request, via the mayor, her boss. It includes eight line items (Degnan’s $66,420 salary, assistant solicitor Darren Lee’s $27,454 salary, and so on).
— Sixteen days later, the actual budget request for Degnan’s office, approved by Bianchi, contains the eight original line items plus one more. You read on the new line, in bold face: “**new** Legal Settlements / FY2013 Budget Request, $100,000 / FY2013 Mayoral Approval, $100,000.” The document bears Degnan’s signature. The city cites the bold face, the asterisks, and the label of “new” as evidence that the council knew, or should have known, that this was for the Spectrum settlement.
Notice the line is for “Settlements,” plural. This factors in later.
Clearly, something has developed between May 14 and 30. We can only infer that in this time, the city and Spectrum have agreed on a mutually acceptable deal. This interpretation is borne out in court five days later, when the next moment of significance occurs.
— On June 5, 2012, in federal court, the judge asks Paul Holtzman, Spectrum’s lawyer, about whether there is an imminent agreement between the company and the city. Holtzman answers: “I would say it has, your honor. We have reached an agreement in principle to resolve the matter. I think with a couple of weeks to document it, we should be in a position to dispose of the case.” Degnan then replies: “I concur, your honor, yes. … The monetary agreement has already been [settled].”
Later is that exchange, Degnan says that everything is in place for a settlement except the appropriation of “the financial piece of the agreement” — the $100,000. All this is taking place, THE PLANET reminds you, with the council knowing nothing, even though it and it alone — not the mayor — handles appropriations.
It’s clear that sometime before May 30, the two sides have in principle settled with the council knowing nothing about it. That settlement includes the $100,000 and the $76,500 for a relocation.
— On June 9, 2012, the city council holds a six-hour budget hearing. One hour and 19 minutes into the meeting, for those who wish to view this exchange on the PCTV online archives, councilors Chris Connell of Ward 4 and Lothrop question solicitor Degnan on the new $100,000 line item for legal “settlements” (plural), an item that was not there on May 14. THE PLANET has viewed this exchange four times, and we would recommend readers looking it up in the PCTV online archives. Connell and Lothrop are working hard to understand this line item. They are representing their constituents as well as one could expect. It is one of their shining moments.
Here’s a transcript of the smoking-gun exchange. Keep in mind: This is the council’s chance to question the new expense, which comes to them out of the blue, since the administration has chosen not to keep councilors appraised of the Spectrum negotiations.
1:19:40 in the hearing
CONNELL: Can you elaborate [on the $100,000 budget line item]?
DEGNAN: [It’s for] litigation kicking around in the legal department, litigation we may need to resolve.
CONNELL: This $100,000 is an estimate?
CONNELL: Are you at liberty to say what case it is?
DEGNAN: Because its ongoing litigation, unfortunately I can’t.
1:23:09 of the tape
LOTHROP: Do we have legal settlements with a defined number already in place that this money would be used for or is this an estimate of what it might take to settle them?
DEGNAN: It is an estimate.
LOTHROP: So we don’t have settlements waiting to be paid at this time?
DEGNAN: No, not at this time.
DEGNAN: We have no settlements in place, um, so but we are going to be, I can perceive it.
This, as we understand this case, is a Smoking Gun exchange that validates the TC3 position and shoots down that of T-COT.
THE PLANET cannot read into the minds of the speakers. We can only go by the words that are used. From this exchange, which we have viewed four times, several things pop out.
(a) The council is concerned about the $100,000, which wasn’t there in the earlier draft budget proposal.
(b) Councilors Connor and Lothrop trying to find out the purpose of the money.
(c) The city knows, and solicitor Degnan knows, it is for the Spectrum settlement. The council doesn’t know that.
(d) Connell asks if the $100 grand is an “estimate.” Degnan says it is and estimate, when she knows it is not an estimate but an exact amount, if we are to believe the court transcripts. There is a huge difference in an “estimate” and “an exact amount,” and THE PLANET finds it hard to attribute this difference to a sloppy use of language. It appears to be more than that. Solicitor Degnan’s statement appears to be a deceit.
(e) Lothrop begins to zero in, asking if there are “settlements with a defined [dollar amount] already in place that this money would be used for …” Again, Degnan essentially says, “no,” that the $100,000 figure is an estimate. She must know at that point, though, that the figure is for the specific settlement she has already agreed to with Spectrum, which she confirmed to the judge in federal court on June 5.
(f) Lothrop, still fishing and showing admirable persistence given he doesn’t know what he looking for (that is, he doesn’t know it’s the Spectrum settlement), asks if any settlements are “waiting to be paid at this time.” Degnan answers no, but how can that be a credible answer, if she knows there is a settlement pending, as long as the council gives the administration the $100,000? “We have no settlements in place …”
Based on what the city solicitor told them, the council — not thinking or having any way of knowing that the $100,000 was for a single case, a specific settlement — approves the solicitor’s budget and the $100,000. To put it in the vernacular, councilors didn’t know what they didn’t know; had every reason to think the $100,000 was for down the road, some nebulous future “settlements” plural; and therefore acted in what it thought in good faith was in the best interests of the city and the citizens.
The transcribed exchange from June 9 that we just printed support the contentions of Lothrop, Krol, and Clairmont. In retrospect, Lothrop admitted to THE PLANET yesterday that in hindsight, he should have put the clues together and called for executive session, but he didn’t, based on what Degnan told him. THE PLANET finds this reasonable, and, putting ourselves in his position, can’t imagine we would act any differently on behalf of taxpayers than he did.
Again, no one on the city council, which must appropriate the money, knows anything about what the city has been up to in the negotiations with Spectrum as of that June 9 date.
That was the city’s big mistake. It should have involved the council by better communications, through president Kevin Sherman, if necessary, but preferably with ongoing briefings for all 11, confidential if need be.
— On June 13, 2012, solicitor Degnan signs a settlement agreement for Spectrum to locate on Stoddard Avenue. This agreement includes the $100,000 allocation to Spectrum. The council still doesn’t know any of this …
— … Until the next day, on June 14, 2012, when all 11 councilors receive an e-mail from Robert Skowron, who signs himself as president of IBCO Local 297, an employee of the Berkshire County House of Corrections, and a man who lives next to the proposed Stoddard Avenue location. Skowron’s e-mail is addressed to Mayor Bianchi with 11 councilors cc’d.
An irate Skowron starts right in, hammering Bianchi for not telling “the people in the Stoddard Ave/Morningside area about the methadone clinic you are planning to move into Dr. Adamo’s former office?”
This is the first time the council becomes aware of the settlement agreement — not through the mayor, not through the city solicitor, but in a “cc” from a private citizen.
It also leads to another question. Mayor Bianchi had repeatedly refused to comment publicly about the Spectrum case, citing the Dec. 12, 2011, confidentiality agreement agreed to by Rich Dohoney for the city and Paul Holtzman for Spectrum. So how does Bob Skowron, ordinary citizen, find out about the agreement, before the press, before councilors, before most everyone?
THE PLANET cannot say definitively, but we can play “connect the dots” and see where this leads us:
Dot 1: Skowron tells Bianchi and the council that he has “been a correctional officer at the BCHC for 12and half years [sic].”
Dot 2: Sheriff Tom Bowler is Skowron’s boss.
Dot 3: Bowler was heavily involved in Bianchi’s mayoral campaign, as Bianchi was involved in Bowler’s run for sheriff.
Dot 4: Who is Tom Bowler’s sister? The mayor’s director of administrative services, Donna Mattoon?
What does the picture look like? It looks like the mayor or Mattoon (or both) breached the very confidentiality agreement he and they cited to the press and others with potentially illegal disclosures to Sheriff Bowler. It is reasonable to assume that Bowler would have a relationship with Skowron as union head. Skowron had to get the information from someone. Was that someone Bowler? Did Bowler get it from Bianchi and/or his sister? We can only surmise and select the explanation that seems most reasonable.
Between June 14 and June 26, 2012 word gets out in the press, including coverage by THE PLANET, of a public uproar over the selection of the Stoddard Avenue location for Spectrum’s methadone facility and program. Spectrum begins to worry about the city backing out of the deal, and on June 25, 2012, it files a series of documents intended to legally force Pittsfield to honor the settlement agreement reached on June 13.
On June 26, 2012, solicitor Degnan does the most damage to the city’s case. At a scheduling conference in federal court, she tells the judge about the political firestorm over the Stoddard Avenue address. “The matter has become political in nature,” she tells the judge, “and the mayor has been receiving complaints” (page 4, line 20-21, June 26 court transcript). Later, Degnan says, “… all of a sudden I’ve got a big political fire that’s roaring somewhat out of control,” basically, because people are discriminating against federally protected disabled people. This is not an admission you would want to make to a federal court judge. Your admitting to Spectrum’s assertion under the ADA act. You can’t discriminate against protected people.
Degnan then blames the firestorm on Ward 1 councilor Christine Yon, though not by name, when she tells the judge (page 6, beginning at line 23): “What I think happened was is [sic] a particular councilor went to some people in where it was going to be located and got the fires — you know, stirred up the fires …” and later (page 7, line 22): “Well, [the community] knew about the Spectrum case. As you said, the litigation in which involved [sic] Summer Street. The people that are raising the fuss are the next door neighbors of where Spectrum was going to go and prior to coming close to filing an [indiscernable] agreement my office went to — it’s a funeral home [sic] next door neighbor.” This bit of muddled inarticulateness again is telling the judge, that the Pittsfield neighborhood in question is full of prejudiced, bigoted people discriminating against federally protected disabled people.
That’s when Mr. Holtzman goes to work and swoops in for the kill (transcript, page 11, beginning at line 2): “Well, this is not merely a political issue. … What we have here is an example of … the mayor in the city responding to unlawful discriminatory opposition to — which you heard about — when the comments — some of them are quite ugly, some relate to the property value, some relate to we’re going to have crime, we have to protect the children, not in my neighborhood, somewhere else.
“And the case law on this, Your Honor,” Holtzman continues, “is quite clear, and I’m sure you’re familiar with it. It’s analyzed precisely the same as a racial discrimination case would be. There’s no need for showing personal animus on the part of any decision maker if, in fact, it’s sufficient to show that the decisions are being made in response to the discriminatory fears [and] hostility of the neighbors” [THE PLANET’s underline].
Bing, bang, and boom. Holtzman has just hit a grand slam for Spectrum based on Degnan’s remarks. The city right then and there lost all chance not only of winning in federal court but of increased negotiating strength. This was poorly played by the city.
Holtazman then tells the judge that the “settlement agreement is far beyond complete, Your Honor. It was approved, represented her orally. It was signed as a full document. Down to the last word was negotiated, agreed upon, determined to be final, actually signed by council for the city [NOTE: the word should be “counsel;” the court transcriber spelled out the homonym meaning “city council” when the actual meaning was “counsel” as in city attorney, that is, Degnan], laid on the mayor’s desk for signature [on the ] second signature line.”
It’s hard to overstate how badly the city goofed in court here and how well Holtzman played it for Spectrum. Holtzman is justifiably upset because, according to what he tells the judge (paraphrase): “Look, we had a signed agreement, all done and delivered. But then we’re told at the last second we’re not getting it because of people’s bigotry and so the mayor can appease that bigotry and all the fears of Council Yon.”
[FROM THE TRANSCRIPT, page 14, line 19] MR. HOLTZMAN: “And the firestorm that has erupted as a result of this is entirely relevant and [a direct] violation of the ADA.”
This proves irrevocably ruinous for the city’s case against Spectrum.
Up to now, the city has prevailed three times in federal court, certainly enough to win leverage in negotiations for a settlement for establishing the terms of setting up a methadone clinic that everyone at this point realized must come to Pittsfield. There was a realistic chance the city could have settled on a location but without a six-figure settlement payout.
Now, the city through Degnan’s not-so-judicious remarks about bigoted Morningside residents being outraged that heroin addicts will be infesting their neighborhood, Pittsfield is basically handing the case on a silver platter to Spectrum. How so? One of the points Spectrum rightfully makes in setting up its treatment programs in cities is that heroin addicts are protected by the federal Americans with Disabilities Act. That’s a tough one to overcome. People may not like this application of the ADA — THE PLANEt certainly doesn’t — but it’s the law.
Spectrum’s lawyer, Paul Holtzman, jumps on Degnan’s admission. He plays the racial card, correctly drawing the analogy: Keeping heroin addicts out of a neighborhood is the same as keeping someone out on the basic of skin color. The taxpayers, as represented by the city solicitor, at this point have been drubbed.
On page 12, line 13 of the transcript, the judge tells Holtzman and Degnan that succumbing to discriminatory pressure “may be more problemmatic for the City than their current position.”
MR. HOLTZMAN: “That’s correct, your honor. It constitutes a fresh violation of the Americans with Disabilities Act, and it’s a very serious matter.”
Now We Get to the Hundred Grand
At that same June 26 federal court hearing, the settlement money comes up as a topic. Degnan makes several key admissions that according to reasonable interpretation establish the case and claims of councilors Lothrop, Krol, and Clairmont about the $100,000 settlement payment.
* Degnan admits that councilors were unaware of the purpose of the $100,000 allocation. She saying that “because it was litigation, it was one piece that was different than our [the solicitor’s] budget. It was a certain amount of money, $100,000 to be exact … to go for settlement funds. And then someone started to ask, and I said, ‘Well, this is litigation.’ And so they said, ‘Okay, we won’t ask any questions. We’ll just approve it.’ So they didn’t know. The councilors didn’t know that this money was going to be used for this lawsuit. They’re probably not too happy about it, but, you know —”
“The councilors did not know.” This is Degnan’s own admission, in court, under oath.
That’s just what Lothrop, Krol, and Clairmont are contending. Degnan has just made their case as well. And she was right. No, they weren’t “too happy” about it, and that’s the anger that we’re seeing when they brought this tangled web in the open, into the press, into sunlight, for We The People to see. It is The Council Trio that has acted in the best interests of open government in this matter, and not the mayor’s office. This can only be seen in an ironic light, since Mayor Bianchi campaigned on a platform of transparency. The mayor, in effect, was sandbagged by his own city solicitor. Mayor Bianchi trusted solicitor Degnan to represent him, the city, the councilors, and We the People in federal court and to represent us well. She failed in that.
Will there be consequences or accountability? Does the mayor, and can anyone in the city, feel comfortable with solicitor Degnan at the helm? THE PLANET can’t answer that question. We can only raise it and leave it for the mayor to decide.
On Aug. 15, 2012, the Berkshire Eagle quotes Mayor Bianchi saying of the $100,000, “We set money aside in case we needed. I was hoping we wouldn’t use it.” We don’t doubt Bianchi believed that, but we can’t see how he came to that belief, given the admissions and commissions of solicitor Degnan to the federal court and to We The People as represented by the city council. One possible explanation would be that he was badly misinformed by the city solicitor.
Executive Session 1, June 26, 2012
Executive Session 1, June 26 (the same night of the city’s disastrous appearance in federal court), according to city clerk Linda Tyer’s minutes, the following takes place:
* Mayor Bianchi tells the council the city would proceed with the Spectrum lawsuit, even though it “is not a winnable situation.” This conflicts with his statement that he was not expecting the $100,000 to be used.
* Solicitor Degnan tells the council that Spectrum intends to enforce the settlement agreement for Stoddard Avenue, even though it was not signed. What Degnan leaves out is the why. Why is Spectrum going to enforce an unsigned agreement? Because, as we’ve seen, earlier that day in federal court, they were handed an open-and-shut case, since the city is discriminating against disabled people. They know it cannot lose in federal court.
* Councilor Lothrop states that he doesn’t believe the city has done anything wrong. He’s basing this on the fact that the city has up to that date won three times in federal court. He doesn’t know the bashing the city took in federal court earlier that day. Had he and the other councilors known that, he wouldn’t have expressed this belief. He would have said the opposite, most likely and in fact.
* Degnan says upcoming depositions will show that city building inspector Jerry Garner was ordered by Mayor Jimmy Ruberto not to issue a building permit under any circumstances. This statement causes heart palpitations to stunned councilors. Hearts sink to the floor. Remember, though, that the federal court has just told the city that none of this prejudicial animosity matters because of the city’s failure to sign the Spectrum settlement agreement due to the unlawful discriminatory attitudes expressed toward heroin addicts, a federal protected subset of disabled people. Nothing the previous mayor may have said or done to make Spectrum feel unwelcome now matters.
* Based on this misinformation, the council suggests one of two options: (1) that the city either relocate Spectrum to Dan Fox Drive and pay the company $250,000 or (2) locate Spectrum temporarily on Summer Street, receive $100,000, and relocate the company as soon as an alternate site becomes available. Again, the council is not only operating in the dark but proceeding on conclusions based on false information.
Executive Session 2, July 3, 2012
In this session:
* Mayor Bianchi gives councilors the terms of a proposed settlement.
* Solicitor Degnan explains the $76,500 payment from the city to Spectrum for relocation to another site.
* Councilor Krol sates that paragraph three of the settlement agreement does not require Spectrum to move. Degnan says Krol is mistaken, and that the settlement does specify Spectrum should move away from downtown to a “mutually agreeable location.” What does the actual contract show? The paragraph shows Krol is correct and Degnan incorrect in her representation, rather, her misrepresentation. The contract clearly reads: “If, at a future date, the City identifies a property” that Spectrum likes, Spectrum will move. “If” is not “shall.” Another poor use of language on Degnan’s part of a deliberate obfuscation?
* Degnan’s assistant solicitor, attorney Lee, says that spectrum is paying rent for the Summer Street location because they presume they will win the federal lawsuit. Lothrop, Krol, and Clairmont now say they now believe this statement to be false.
* In a highly unusual move, Mayor Bianchi and Degnan ask all the councilors to sign the settlement contract, aSsan acknowledgment of having seen and read it. Councilor Lothrop, to his credit, refuses to sign because he was not party to the settlement negotiations. He also points out that councilors are not typically asked to sign off in acknowledgment on any other types of settlements. THE PLANET loves Lothrop’s stance here. We read it as the last great act of defiance after you know you’ve been screwed and the situation is hopeless, kind of a meaningless but symbolically important gesture of self respect.
* Degnan says the settlement agreement will be signed by the mayor’s office and Spectrum, regardless of whether or not the councilors sign.
Finally, on Aug. 27, 2012, the city gets confirmation that it’s case is not winnable when the MIIA Member Services Group, the insurance division of the Massachusetts Municipal Association to which Pittefield belongs, refuses the city request for indemnity in the Spectrum settlement. Why? Because of the city’s illegal discriminatory attitude toward heroin addicts, who are federally protected by the Americans for Disabilities Act.
The String Breaks
There’s a scene in Mark Twain‘s masterpiece The Adventures of Tom Sawyer where Tom and Becky explore a mysterious cave. Tom trails a long skein of string behind him, so they can find their way back through the maze and back out. The string breaks, and they are left lost. That’s the sensation one gets when diving into the pile of legal documents, transcripts, briefings, minutes, and summations pertaining to the matter of the city of Pittsfield settlement agreement with Spectrum Health Systems over the company’s decision to open a methadone clinic in town.
Specifically, the cave begins to branch off into side avenues and chambers not on any map. As way leads to way, as Robert Frost memorably puts it in his great poem “The Road Not Taken,” we come to a particularly perplexing part of the cave wherein lies the dispute between a trio of city councilors and the mayor’s office over the details of the settlement, particularly, the monetary aspect of the settlement.
THE PLANET has spent much time these past two days collecting documents, interviewing the combatants, talking to others with a dog in the fight, readings every one of the pieces of paper, and trying to make sense of it all. Who is telling the truth? Is it the trio — my Right Honorable Good Friends Ward 5 councilor Jonathan Lothrop, Ward 6’s John Krol, and at-large Barry Clairmont, or is it the Corner Office Trio, a jazzy combo consisting of Mayor Dan Bianchi on piano and vocals, director of administrative service Donna Matton on tenor sax, and city solicitor Kathy Degnan on drums?
The Council 3 (TC3) have as their main concern “the lack of transparency from the administration and apparent attempts to mislead the public and members of the City Council on pending litigation and court proceedings.” Much of the TC3 concern stems from the $100,000 settlement the city agreed to pay Spectrum to make the outstanding litigation go away. The Corner Office Trio (COT) counters by saying the councilors likely did know about the nature of the $100,000, agreed to it by their approval of the city solicitor’s budget, and — even if it didn’t know the $100,000 line item in the solicitor’s budget was for a payoff to Spectrum — what difference does that make?
THE PLANET thinks it would have made a lot of difference, not just for that money but for the later proceedings in federal court, when the city soiled the bed but good.
THE PLANET finds for the plaintiff — Mssrs. Lothrop, Krol, and Clairmont.
One Point of Agreement: Spectrum Must Be Allowed into the City
There is one thing on which everyone agrees. This dispute is not about Spectrum’s right to establish a methadone clinic in Pittsfield. The sides agree that Spectrum has met all the requirements and, buoyed by its track record of responsible service, will operate a much-needed drug treatment center in a professional way. Based on all THE PLANET has been able to discover about the company, its stellar reputation seems well deserved.
As we have tried to show, the key to unraveling this mystery lies in the timeline. To take you through the intricacies would require a missive probably longer than The Adventures of Tom Sawyer and certainly a story much longer than this one.
Our readers, we understand, rely on THE PLANET to digest all this information, and — in as objective and non-biased a way as possible — help them understand what’s going on here. We must, therefore, do this not only in digested form but in digest form. That’s the communications challenge: To present an accurate understand of right and wrong in this matter while by necessity having to leave to much out.
We have done our best to meet that challenge. We also believe there is still more to be written, said, and discussed about this case, and we shall do our best there, as well.
BY THESE WORDS, HAPPY READER, WITH THE CASE NOW ACQUAINTED, YOU MAY VIEW THE WEEKEND’s FACE, CONFUSION HAVING FALLEN DOWN AND FAINTED. HAVE A GOOD ONE. NO, HAVE A GREAT ONE.
“OPEN THE WINDOW, AUNT MILLIE.”
LOVE TO ALL.