CITY’s (BIANCHI’s) LAWSUIT AGAINST EX-SOLICITOR DOHONEY SHOULD BE DROPPED AS FRIVOLOUS… LOCAL ATTORNEY, ‘OWEN MARSHALL,’ OUTLINES CITY’S BEST STRATEGY IN BUILDING DEMOLITION CASE … CITY SHOULD FIGHT LIKE A BULLDOG AGAINST THE AWARDING OF ANY SUBSTANTIAL DAMAGES
By DAN VALENTI
PLANET VALENTI News and Commentary
ADD #1 LATER IN THE DAY 1/25/13 — THE PLANET spoke to assistant city solicitor Darren Lee in the afternoon, after we “went to press,” about the case against attorney Rich Dohoney and also about the demolition of the Melville Street apartment building. Our conversation added clarification to the city’s actions in its proceedings against Dohoney. In our next entry, we shall share what we learned in this conversation and also other information about these two cases, which have assumed an almost symbolic importance.
(FORTRESS OF SOLITUDE, FRIDAY, JAN. 25, 2013) — Now that the city of Pittsfield, through city attorney Kathy Degnan, is suing former city solicitor Rich Dohoney personally over losing $175,000 on the razing of a Melville Street apartment building, THE PLANET wonders why it would take this highly unusual route.
You can read THE PLANET from two days ago for some of the facts of the case, especially as reported by Andrew Amelinckx of the Boring Broadsheet. Keep in mind that cities and towns — bound up as they are in the communal application of a labyrinth of rules, laws, and regulations — get sued all the time. It’s a civic fact of life. Many if not most suits are frivolous and are not heard. Others advance into court and hastily are thrown out. Others get argued, and them, like all of these proceedings, there are winners and losers.
When there is a loss, it’s almost unheard of for the city to go after its own attorney! That’s what’s happening here. To try to find out why, THE PLANET placed a call to the city solicitor’s office. Rosaura Roman, a highly competent executive legal secretary, put us on hold when we told her why we wanted to speak to Degnan. Roman said Degnan is not the attorney handling the case. Assistant city solicitor Darren Lee is handling it. We then asked to speak to Lee. Roman told us that Lee is only in the office one day a week and wasn’t available. She said she would pass our message along to him.
We then asked if we could speak with Degnan. Doing faithful service to her boss, Roman again reminded us that Degnan was not handling the case.
“If you want to speak with [Degnan] on another matter, that would be different, but she’s not handling [the Dohoney case],” Roman said.
“Okay, tell her I want to speak with her about another matter.”
“I will leave her that message.”
When the phone doesn’t ring, we’ll know it’s Kathy Degnan not returning our call. Too bad, because we actually wanted to know the answer to one simple question: Why go after Dohoney over this case? Why not put all your energies into the damages hearing and try to chisel that down to nothing?
No Money Has Yet Changed Hands
In the case of the demolition of 11-15 Melville Street in April 2010, the city lost in a summary judgment by Judge John Agostini, who in November 2012 ruled that taxpayers must pay damages to Madeline Culpo, who owned the building through a company called Pesu Inc. Culpo wants $175,000. A hearing to decide damages has not been scheduled.
THE PLANET talked with a local attorney — call him Owen Marshall — intimately familiar with this case, and he says an appeal should have been the correct route for the city — that or an aggressive showing at the damages hearing.
“If you review the city’s history with the [Melville Street] address, a strong case can be made on appeal,” says Marshall. “From what I understand, there has been no actual award of damages. There was just a judgment. An award of money, if any, will come [in a separate hearing]. The city still has the right of appeal.”
From his review of the case, Marshall says the city “acted with proper restraint against a property that had degenerated into a condition [the Health Department] determined to be, and I quote, ‘unfit for human habitation.’ The city did I believe obtain a condemnation order, one rescinded only three days later, even though no repairs had been made. That’s one mysterious aspect of the case that begs clarification.”
City’s Best Options
What’s the city’s best path from this point? Marshall, a respected and well-known officer of the court, offered three avenues:
(1) Drop the lawsuit against Dohoney. It’s a waste of time, talent, and treasure.
(2) Devote the city’s legal energy into either an appeal or an aggressive appearance at the damages hearing, or both.
THE PLANET asked Marshall how much an appellate court could look into the case. He told us that on appeal, the court can only review such evidence that was introduced in the initial trial. It’s not a retrial, and it can’t open up new evidentiary hearings or introduce any new information. The appellate court is basically an umpire on a play at the plate. It reviews the proceedings of the case makes a finding of safe or out.
Generally, grounds for appeal can include
* A claim that the trial was not conducting fairly
* The judge was fair but incorrectly applied the law
* The applicable law violates the state or federal constitution.
What chances would the city have on appeal? Of course, that’s impossible to answer here and now without full access to all the relevant court documents, including transcripts. In general, according to the state’s court website, roughly 80% of appeals support the initial ruling. In 15%, the appellate court reverses the trial court. In 5%, there’s a mix of affirmation of some part of the trial court’s ruling and a reversal of others. These percentages go up or down based on the unique circumstances of a particular case.
Chisel the Award Down to Nothing
If the city does not appeal and intends to go to the damages hearing, its best option, Marshall says, is to get the best attorney it can find and argue vigorously against the $175,000 figure. How vigorously? “As low as $1,” Marshall says. A token settlement would represent a “victory” for both sides in a Solomon-like way: Culpo would have the satisfaction of holding the city accountable for her building, while the city would have the satisfaction of knowing that, in effect, it acted properly in the first place. Most importantly, taxpayers wouldn’t have to pay anything more than four bits.
Is Kathy Degnan the right lawyer for the damages hearing or Darren Lee? Maybe she is, and maybe she ain’t. Maybe he is, and maybe he ain’t. THE PLANET will say this: This provides Degnan with a golden opportunity to prove the gravitas of her office.
This is the way out of a legal nightmare, which is what the solicitor’s office has become for the Bianchi Administration. It drops the case against Dohoney and wins in the damages hearing. Degnan and her team should sharpen their teeth into points and go into the damages hearing prepared to chisel to award to Culpo to as little as possible. If she could do this, it would provide her and her office as well as Dan Bianchi a much-needed win heading into this campaign year.
Remember, no money has left city coffers yet. That’s a crucial point. It will take a damages hearing before that amount can be decided. Even then, if our reading of the law is correct, the city could still appeal. We are talking 175 Large of taxpayer money. How much money the Bianchi Administration loses on this case will be one strong measure of its effectiveness in sticking up for the Little Guy.
The Case Against Dohoney
Then there is the case against Dohoney. THE PLANET talked to Dohoney yesterday, but we are pledged to keep that discussion between the two of us. THE PLANET is sure he’s following the same advice he would give to a client: Do not publicly comment until you get your feet under you. In other words, be sure of the facts before you speak. We understand that. We do applaud him for taking the time to return our call, and promptly.
This is just a guess, a gut feeling based on nothing more than a hunch. The city’s “case” against Rich Dohoney will disappear after it has generated a few more headlines. In that regard, it has already served it’s apparent purpose, which is to smear Dohoney in payback to what the Bianchi Administration sees as a smear campaign mounted by certain councilors against city solicitor Degnan. It’s demoralizing to think that local politics works this way, but it sometimes does.
City government? Yes, that’s what it has come to. Are we wrong? Well, that’s what we wanted to ask Kathy Degnan.
MULTA PETENTIBUS DESUNT MULTA
“OPEN THE WINDOW, AUNT MILLIE.”
LOVE TO ALL.