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DEGNAN “OPINION” ON CACCAMO IS JUST THAT … IF THE CITY TAKES CITY SOLICITOR’s QUESTIONABLE ADVICE, LEGAL REPERCUSSIONS COULD BE ENORMOUS, WITH TAXPAYERS PICKING UP THE BILL … plus … IS MARY McGINNIS ABOUT TO JUMP THE GOOD SHIP BIANCHI?

By DAN VALENTI

PLANET VALENTI News and Commentary

(FORTRESS OF SOLITUDE, TUESDAY, DEC. 17, 2013) — Yesterday’s post on Pittsfield city solicitor Kathy Degnan‘s opinion on (Apparently) Ward 3 councilor-elect Nick Caccamo‘s eligibility to serve has generated much discussion. Take it as another example of THE PLANET raising a valid issue that either escaped the Boring Broadsheet or that the BB, on orders from its GOB masters, was instructed to ignore.

A “legal opinion” is a conclusion reached by a lawyer after an analysis of a matter. According to paracticallaw.com, legal opinions serve two purposes:

* “To inform the addressee of the legal effects of a transaction or matter, and

* “To identify legal risks that the addressee should consider further and evaluate.”

The website makes an important distinction: “A legal opinion is not a substitute for legal advice …” Keep in mind that a “legal opinion” is just that: a considered but non-binding judgment on an interpretation of law. By nature and definition, legal “opinions” assume the presence of opposing interpretations. That’s what separates an opinion from a ruling. A ruling is definitive.

Degnan’s “opinion” can in no way be considered definitive. Actually, based on her shaky representation of the city in prior matters (we think here of Spectrumgate), her view on Caccamo’s eligibility can reasonably be considered suspect, from a legal standpoint. One must also consider that legal opinions, being freed from the weight of definition, can and often are given based on reasons other than the law. In this case, for example, a fair-minded person would have to consider just how much politics and assorted sundry and related matters — non-legal — entered into Degnan’s letter.

The relevant language from the new city charter reads this way:

“Except as otherwise provided by the charter, no member of the city council shall hold any other compensated city position.”

What is ambiguous about this? Degnan herself admitted that this language went into effect on Nov. 18. Consequently, Caccamo’s election under the language of the old charter does not factor into the situation. He may have been elected under the old charter, but the moment city clerk Linda Tyer certified the election results on Nov. 18, Caccamo, as councilor-elect, found himself bound by the new language.

He is in what baseball calls “a pickle.”

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“Except as otherwise provided by the charter, no member of the city council shall hold any other compensated city position.”

A thorough reading of the charter does not reveal any provisions that would fulfill the introductory clause of the above sentence. It is not provided elsewhere in the charter that a councilor shall be allowed to simultaneously hold two paid city positions. As our astute readership has correctly ascertained, the provision makes no allowance to serve for a would-be councilor holding two compensated refusing pay from one of them. The deciding factor is that both the position are “compensated.” Legally, it won’t matter if Caccamo refuses his council remuneration. The position itself remains compensated.

Caccamo can refuse every shekel of his city council pay. It won’t matter. The language of the new charter prohibits him from serving, since, whether he accepts remuneration or not, the position is a compensated one.

What is so difficult to understand here?

If Caccamo is allowed to take the oath in January, the city will put itself at risk to all manner of legal challenge. For the openers, the camp of Richard Latura, Caccamo’s challenger in the November elections, would be invited to file suit. Second, any matter that Caccamo votes on as a council member would be fair game for legal challenge by any interested party. Every moment he serves, Caccamo would be a lighting rod for a lawsuit.

THE PLANET shall not speculate on why Degnan opined as she did. We respect but do not agree with her interpretation. We would feel confident taking our position against hers into court and winning. PLANET critics have pointed out that we do not possess a law degree. We would only remind folks of the time Santa Claus, the Tooth Fairy, Peter Rabbit, an honest lawyer, and an old drunk were walking together down North Street. They simultaneously spot a $100 bill. Who gets it?

The drunk, of course, since the other four are mythological creatures.

Plus, we know how to read.

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IS McGINNIS ABOUT TO JUMP SHIP?

THE PLANET has word from our spies deep inside city hall that Mary McGinnis, Mayor Dan Bianchi‘s director of administrative services, is seriously considering leaving her position. You will recall that THE PLANET recently shared the news that Bianchi allegedly ordered McGinnis and city arts commissioner Megan Whilden never to appear on “Good Morning, Pittsfield,” hosted by John Krol, in retaliation for the latter’s views on the mayor’s record on race relations. No one involved — neither Bianchi, McGinnis, Whilden, or Krol — disputed the assertion.

According to city hall sources, Bianchi has driven McGinnis to the brink. Our city hall sources say: “Talk about petty and vindictive. Mary probably won’t be there [in her city post] too long anyway. She is completely disgusted with Bianchi, not because of [the "GMP" order] but because of so many other things. He’s apparently trying to quash the Affirmative Action Committee that he supposedly started. The thing that surprised me most about Dan Bianchi is the incredible level of political pettiness and vindictiveness. Although I have had past dealings with him, it has been a real eye-opening experience.”

THE PLANET tried several times to reach McGinnis and Bianchi for their comments, but our entreaties were not answered. Stop us if you’ve heard this one before.

One gets the sense that the wheels have come off of the administration and that the mayor doesn’t care, which leads to a fair question. Is he only in it for the pension?

Consider: He has 10 years on the council. Each year on the council counts as a full year toward pension eligibility. Add to that his previous service as city finance director in the 80s and early 90s. Now add four years as mayor. Pittsfield’s liberal pension provisions provide 80% of a worker’s top-three pay years. Is that the real reason why Bianchi desired another term? It will earn him 80% of $87,000 (plus bennies) for life, courtesy of the bedraggled taxpayers. That has spawned a political bromide: Never elect a former councilor as mayor.

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“Why don’t we do it in the road? Why don’t we do it in the road? Why don’t we do it in the road? Why don’t we do it in the road? No one will be watching us. Why don’t we do it in the road?”Lennon and McCartney, from The White Album, 1968.

“OPEN THE WINDOW, AUNT MILLIE.”

LOVE TO ALL.

 

16 Responses to “DEGNAN “OPINION” ON CACCAMO IS JUST THAT … IF THE CITY TAKES CITY SOLICITOR’s QUESTIONABLE ADVICE, LEGAL REPERCUSSIONS COULD BE ENORMOUS, WITH TAXPAYERS PICKING UP THE BILL … plus … IS MARY McGINNIS ABOUT TO JUMP THE GOOD SHIP BIANCHI?”

  1. Wilson
    December 17, 2013 at 10:28 am #

    Strange that this is even debatable since the charter was just written, and everyone who supported it should clearly want Caccamo out. Pathetic that they just let a consulting firm do a copy-and-paste job to compose the city government’s foundational structure

    • danvalenti
      December 17, 2013 at 9:18 pm #

      Right you are. And city taxpayers needed to shell out big bucks to a consultant to do the cutting and pasting, mainly from the Northampton city charter? Ree-dick-kew-less.

  2. Russell Moody
    December 17, 2013 at 10:44 am #

    Has anyone appealed to Caccamo’s sensibilities?
    Dan–Have you spoken with him on the matter or at least invited him to weigh in?

    • danvalenti
      December 17, 2013 at 9:17 pm #

      RUSS
      I have not spoken with him. We do invite his views and will gladly share them if and when he contacts us.

  3. Ron Kitterman
    December 17, 2013 at 2:14 pm #

    Would have to agree with Wilson on his assesment the big winner was Stephen McGoldrick, Pittsfield Charter Review Study Committee from UMass. I think he told us early on there were at least 50 inconsistencies with Mass General Laws from the start. Maybe Mr. Caccamo can land one of those dreaded private sector jobs that are so plentiful in Pittsfield.

    • danvalenti
      December 17, 2013 at 9:16 pm #

      I will be surprised if there is NOT a filing of protest from someone, somewhere prior to the inauguration. Worms, start your engines.

  4. dusty
    December 17, 2013 at 5:11 pm #

    Well I imagine Pam Tobin is thrilled that this pickle person has taken the heat off of her. No need to wear the hoodie any more.

  5. Linda
    December 17, 2013 at 6:42 pm #

    I have purchased cakes from Mary M’s business. Delicious. But she should have stayed out of politics. She’s not vicious enough. I’m not surprised to hear that shes disgruntled.

    • danvalenti
      December 17, 2013 at 9:14 pm #

      Thank you, L.

  6. Giacometti
    December 17, 2013 at 10:13 pm #

    Massachusetts Retirement System now calculates the rate of an employees pension at the time of their retirement as their highest five years of compensation no longer their highest three years as was the case prior to 2012. Therefore the Mayor must serve 5 years at the pay of $ 87,000 to qualify for a pension of 50%.

    With 10 years as a City Councilor, 4 years as Director of Administration and Finance and 6 years as Mayor… 20 years of service would entitle him to 50%. In order to collect the full 80% he would need to have 32 years of service. ( another 12 years of service )…

    • danvalenti
      December 18, 2013 at 8:53 am #

      GIACO
      Thanks for the information. 50% of 87K is still not bad dough … for not doing a thing.

  7. Still wondering
    December 18, 2013 at 10:02 am #

    Major changes were made to the Massachusetts retirement system as we’ve seen in these comments. The Boston Herald led the way on this. If the BB was in Boston, the old ways would never be changed.

  8. Giacometti
    December 18, 2013 at 5:57 pm #

    Yet the Mayor could land a consulting position ( former North Adams Mayor John Barrett ) to get the 12 additional years needed
    …stranger things have happened so don’t be surprised.

  9. Bill Rupprecht
    December 20, 2013 at 2:12 pm #

    Degnan’s opinions are just that….opinions. She claimed to not be an expert on zoning a while back. Strange, she was an expert when the City was going back on its word that my lot was buildable. My attorney at the time said he had never seen anything like what they did to me happen in all his days practicing law. She will eventually cost the City big buck$. Pittsfield is lucky I could not afford an attorney and had to do all my suits pro se. I did eventually prevail in the MA Land Court, tho damages were not awarded. Check out some of her opinons here: http://www.inthepitts.com

    • danvalenti
      December 20, 2013 at 2:48 pm #

      Thanks, Bill, for sharing your personal experience.

      • Bill Rupprecht
        December 21, 2013 at 11:10 am #

        Thanks for posting Dan.