Article

DEGNAN RULING ON CACCAMO ELIGIBILITY TO SERVE ON CITY COuNCIL LEAVES CITY WIDE OPEN FOR LEGAL ACTION

By DAN VALENTI

PLANET VALENTI News and Commentary

(FORTRESS OF SOLITUDE, MONDAY, DEC. 16, 2013) — We have another legal donnybrook from the Bianchi Administration’s chief arbiter and barristrix of the law, the Hon. Kathleen Degnan, Esq., who has offered a formal opinion on how the newly adopted city charter applies to Ward 3 councilor-elect Nick Caccamo and his ability to serve. THE PLANET has coined the title “barristrix” to differentiate is from “barrister,” which, we feel, in Degnan’s case, found itself a condition of order.

You remember how the Bianchi Administration handled Spectrumgate. When it took over from the Ruberto Administration, it gave up the ghost, providing a dubious cash settlement costing taxpayers more than $100,000 after blundering in the courtroom. The case not only failed to inspire much confidence in the new regime but also brought out the importance the new mayor places on revenge politics over good government.

Getting back to the case at hand, Degnan presented to our Right Honorable Good Friends on the city council a Swiss-cheese opinion in the Caccamo case. To fully understand, consider the following.

During the election, 24.5% of the total electorate voted on the proposed new charter. By more than three to one they approved it. The GOB and its house organ, The Boring Broadsheet, tried to portray this as a colossal victory in favor of change. That is because both parties — the GOB and the BB — do not encumber themselves with “truth.” In point of fact, the results on the charter vote show that four or every five eligible voters either voted against the revised document or did not bother to vote at all. That’s what democracy today calls an “overwhelming” majority, a word actually used by the BB.

Allow us to present this definitional course correction, from Dan’s Dictionary: “Overwhelming majority” = adj., “barely obtaining support” or “convincingly against,” as in “Four out of five voters did not vote for the new charter.”

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Prior to the election, THE PLANET raised the question about Caccamo’s eligibility to serve on the council given his status as a paid employee of the Pittsfield School Department and the language of the new charter, which prohibits such service. Section 2-3 of the new charter clearly prohibits city councilors from holding any other compensated position.

Degnan’ attempted to answer this question in a tortured memo dated Nov. 18 to Mayor Dan Bianchi, City Clerk Linda Tyer, and Caccamo.

“To answer the question,” Degnan writes, “it is necessary to determine when Mr. Caccamo was elected pursuant to the new charter.” Degnan quotes Section 23 of the new charter: “This charter shall take effect upon its ratification by the voters.” That seems clear enough.

On Nov. 18, the date of Degnan’s memo, city clerk Tyer certified the results. Degnan correctly states that until that date, all provisions of the old charter were in effect. Once Tyer completed the certification, however, the new provisions went into effect. THE PLANET agrees with this interpretation.

Degnan then takes a legal misstep, and it’s a lulu. She writes:

“A question has been raised as to whether Section 2-3 of the new charter prohibits Councilor Elect [sic] Caccamo from serving as Ward 3 councilor. In its relevant part, ‘Except as otherwise provided by the charter, no member of the city council shall hold any other compensated city position.’” Degnan has added the italics and bold-faced emphasis. It would seem clear, then, that Caccamo could not serve.

Ah, but no. Degan sees “an ambiguity” in the emphasized language.

Degnan writes: “Clearly [Section 2-3] prohibits a member of a city council from simultaneously holding two compensated city positions. However, it does not address what would happen if a city council [sic; she has left off the "or"] were to waive his compensation as city councilor.” Based on this erroneous assumption, which we shall reverse engineer in a moment, and her consultation with M.G.L. c. 268A, P20, Degnan concludes in the memo, “I am of the opinion that Section 2-3 is not violated as long as Councilor Elect [sic] Caccamo waives one source of his compensation.” In short, if Caccamo gives up his $8,000 council stipend (he certainly wouldn’t give up his PSD pay), he can serve.

It’s both astonishing and appalling to see the manner in which this opinion ignores the language of the charter, which she herself quotes.

Let’s return to the language as it pertains to a member of the city council having another paid job with the city: “Except as otherwise provided by the charter, no member of the city council shall hold any other compensated city position.” We leave out the emphasis.

Degnan illogically reasons from this that as long as the councilor in question quits one of his two salaries, he’s OK. That’s not what the charter — i.e., the law — says. EMPHASIS ADDED BY THE PLANET. The fact is, even if Caccamo eschews his council salary, the position is still a compensated one. The difference is more than subtle. The new charter speaks of the illegality of a councilor holding two compensated positions. It does not speak at all of one councilor accepting, or not, two sources of compensation.

Degnan has misread the law. The only legal way that Nick Caccamo can serve on the city council beginning in January 2014 is he he quits his position at the school department. If he does not and he takes the oath, he will be occupying the seat illegally. This will open the city to legal action.

Does the city truly want to risk messing with that potential legal wasp’s nest? Keep in mind that with the new council, the lines of demarcation between the mayor’s people and the dreaded “others” will be even stronger than it has been these past two years.

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“Rock and roll, hoochie koo. Lord Almighty, light my fuse. Truck on our and spread the news. Done got tired of paying dues. Said goodbye to all my blues.”Rick Derringer, Johnny Winter et al, “Rock and Roll Hoockie Koo” (1973).

“OPEN THE WINDOW, AUNT MILLIE.”

LOVE TO ALL.

41 Responses to “DEGNAN RULING ON CACCAMO ELIGIBILITY TO SERVE ON CITY COuNCIL LEAVES CITY WIDE OPEN FOR LEGAL ACTION”

  1. Still wondering
    December 16, 2013 at 7:36 am #

    Only in Pittsfield…

  2. Mike Ward
    December 16, 2013 at 8:36 am #

    I assume you have exhausted all the possibilities of “except as otherwise provided…”?
    So who is the enforcement body for city charters — the Charter Police, so to speak? Who is going to take the city to court for failing to follow their own poorly written rules?

    • eddiep
      December 16, 2013 at 9:19 am #

      Whomever is affected by decisions made by this council, either yay or nay. If an illegal councillor is serving and votes on an issue, will his vote still count? I doubt it.

    • danvalenti
      December 16, 2013 at 5:11 pm #

      Enforcement body would be the AG’s office.

  3. Russell Moody
    December 16, 2013 at 9:14 am #

    paid or not… this sets up conflicts of interest. The spirit of the law is being violated… Why must one work to get around intentional provisions that call for purposeful objectivity?

  4. Teecha teecha
    December 16, 2013 at 10:11 am #

    Anyone worth his salt could see why we’d be open to legal action. Suppose a motion comes regarding funding for the schools and cockamo votes, people who lose feel slighted will sue claiming he voted illegally, therefore any action taken by the council with his vote is illegal.

    Clearly you don’t need law school to harbor common sense.

    • mike r
      December 16, 2013 at 10:50 am #

      Clearly you have no knowledge of the subject because he can not vote for matters regarding funding for schools. Based on interpretation of specific legal documents and offering legal opinion we refer those issues to those educated in the law. Also known as Attorney’s. Not just anyone worth his salt.

      • Rick
        December 16, 2013 at 8:16 pm #

        Please go back to Topix……..

  5. MrG1188
    December 16, 2013 at 10:33 am #

    “…no member of the city council shall hold any other compensated city position.’

    This is very clear. And it does not offer room for consideration of giving up compensation for the council position. Where is the confusion? If one holds ANY OTHER compensated position one cannot be a city councilor. It does not say “unless one gives up the councilor’s stipend.” It does not mention two compensated positions. It is plain and clear; if you hold a paying job with the city, you can’t be a councilor. Any other interpretation tortures and obfuscates the law.

    • danvalenti
      December 16, 2013 at 5:15 pm #

      MRG1188 — You clearly see what “mike r” does not. The statement is clear. There is no provision for wiggle room, if, and it’s a big if, the game is on the up-and-up. There is plenty of evidence to suggest the game is not such but it rigged. We shall see. A councilor cannot hold another compensated city position, whether or not he or she accepts the council pay. If the city allows Caccamo to serve, there will be a can of Pandoras readied to be opened. Pity is that, ultimately, the taxpayers will be on the hook for any consequent monetary losses.

  6. Tim Bartini
    December 16, 2013 at 10:52 am #

    I thought that it was determined that because the new charter was not in effect at the time Mr. Caccamo ran for councilor, He could hold office for now, but if he ran for re-election he would not be able to be a employee of the city. That seems to make sense,but then again I’m a firefighter not a Philadelphia lawyer like some people on this blog.

    • scott
      December 16, 2013 at 3:44 pm #

      Tim, its the blue collar working people hoarding all the coomon sense thats all.

  7. VishayK
    December 16, 2013 at 11:26 am #

    mike r you have a lot to learn. It is eveident you dont know that much. Stop being a poser.

    • danvalenti
      December 16, 2013 at 5:16 pm #

      Precisely!

      • Nevin
        December 17, 2013 at 7:37 am #

        Dan, I believe a redaction is in order above (maybe just stop postingt the comments).

        Thanks from all of us.

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

          Consider it done! He’s “gone with the wind” and snow, frozen out!

  8. Thomas More
    December 16, 2013 at 12:18 pm #

    58% of those eligible to vote in the 2012 presidential election did vote. 51% voted for Obama. 47% voted for Romney. Therefore 89% or nearly nine out of ten people either voted against Obama or did not vote. Don’t scratch your heads republicans. Elections across the country are determined by the people who do vote, even in Pittsfield.

    • Mad Trapper
      December 16, 2013 at 12:27 pm #

      I didn’t vote for either of those fools and frauds.

      I did vote, for Dr . Ron Paul.

      And I sleep well with that vote.

      How is that hope and change going?

      Got any change LEFT???

      Glad the Twit has LEFT mASSachusetts.

  9. nota
    December 16, 2013 at 1:24 pm #

    That’s a new one for the books, Cackymo hasn’t even been sworn in and he’s causing confusion, dats Palookaville!

  10. Ron Kitterman
    December 16, 2013 at 2:05 pm #

    Attorney Rinaldo-Del-Gallo-lll wrote a piece concerning this a couple of weeks back for the Berkshire Eagle
    http://www.berkshireeagle.com/opinion/ci_24584810/rinaldo-del-gallo-iii-charter-mistake-needs-fixing?IADID=Search-
    It’s hard enough to get people to run for and serve political office. It’s not like Mr Caccamo will be riding two horses in different directions. According to Solicitor Kathleen Degnan and Attorney Del Gallo it wouldn’t be a conflict of interest.

    • scott
      December 17, 2013 at 4:57 am #

      Ron, this all seems like a distraction in your opinion why are they changing the charter to begin with?

  11. Greg Yon
    December 16, 2013 at 2:07 pm #

    Would this ruling by Degnan include Fireman, Policeman, DPW workers, Parks workers, City Maintenance workers, and any other municipal employee.

    Can you say can of worms….

    • danvalenti
      December 16, 2013 at 5:17 pm #

      GREG
      Exactly. Can you say “endless opportunities for litigation.” We pity the next council and council prez. This is going to be c-r-a-z-y.

  12. Joe Pinhead
    December 16, 2013 at 3:19 pm #

    The definitions are really simple as defined in the M.G.L. section 268A part 1 definitions: “Municipal employee,” a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis, but excluding (1) elected members of a town meeting and (2) members of a charter commission established under Article LXXXIX of the Amendments to the Constitution.

    I seem to see the Phrase with or without compensation as used in that section of law. To answer another posters question it would be the State ethics Commission who this goes to first then on to the AG’s office.
    https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter268A/Section1

    Ahh but we must rememember its for the children

    • scott
      December 16, 2013 at 3:48 pm #

      Andrew Cuomo was on the radio today talking about efucation and how spending more and more on education doesnt mean you have the best and brightest students. He was saying if that was the case towns with the largest educational budgets would have students doing the best but thats not whats happening.

    • danvalenti
      December 16, 2013 at 5:17 pm #

      Thank you, JP, for the usual dose of reason and logic.

  13. Tito
    December 16, 2013 at 3:47 pm #

    i can remember Barry Clairmont saying on this blog, quote ” He can be on the Council, he just can’t collect the $8,000 per year pay.

    • B. Clairmont
      December 16, 2013 at 5:51 pm #

      Tito,

      He can for this term, in my opinion. As for next term, I’m not a lawyer.

      Barry

  14. Linda
    December 16, 2013 at 4:01 pm #

    Law is clear, no councilor can hold two positions that both provides paychecks. Caccamo draws a paycheck at school department. His council position has compensation. Whether or not he takes the council paycheck doesn’t matter, the job offers compensation.

    • smh
      December 17, 2013 at 6:34 am #

      “Law is clear”. Spoken like a true non-lawyer.

  15. Joe Pinhead
    December 16, 2013 at 4:25 pm #

    Can you imagine but if even for a minute if the name was say Kinnas instead of Caccamo, does anyone really think the answer would be the same? I have not seen the Solicitors opinion has she in fact contacted the ethics commission for clarity? If she did was there a mention of the thoughts that they responded with? Dan can you post the entire written position or a link to it?
    So using the logic applied here would it not be ok to hold both a seat on the School Committee and the Council? I am aware the Mayor does but that is a duty and responsibility the Mayor assumes when entering office.

    after all its for the children

    • Thomas More
      December 17, 2013 at 7:01 am #

      Not a bad point. The school committee can now be paid under the new charter if the council so approves. Would a councilman who also happens to be on the school committee be in conflict if he (or she) voted to approve a salary for the school committee. Why don’t you drop “its all for the children.” Its worn out sarcasm and its childish.

  16. danvalenti
    December 16, 2013 at 5:12 pm #

    The webmaster has spoken. Pay heed.

  17. Tito
    December 16, 2013 at 6:10 pm #

    Greg makes a great point, why for instance is trout feeder LOW allowed to be on a council. Is state funding in many municipal budgets.

  18. Billy
    December 16, 2013 at 7:31 pm #

    Dan

    The Bianchi administration has become the political version of the Stepford wives.

    1) they have their own version of the law and seek only clarification if it comes from within their inner circle even On such important issues as the recently passed charter .

    2) I agree with Mr.Yon and others that such frivolous interpretation of a important issue and the disregard for opinions that differ from their group. I believe it will open a Pandora’s Box that will show their height of ineptness.

    3) the incoming Council President to have any credibility will have to show Independence from the Executive Branch and not walk in lock step.” The duty is to the city ” I would ask her to listen to the oath she takes and research the meaning. Leadership is more than holding a seat.

  19. Russell Moody
    December 16, 2013 at 8:49 pm #

    Another thought… how much does a special election cost the taxpayers?

    • dusty
      December 17, 2013 at 1:43 am #

      or does Latura get the job by default?

  20. joetaxpayer
    December 17, 2013 at 4:47 am #

    Everyone should pump there brakes. Mayor Dan is on top of this. He is going to have a $30,000 feasibility study done to see if Cacomo or any other City employee can serve on the Council. Money is no object, especially when it’s not yours. I’m no lawyer but I did sleep at a Holiday in last night.

    • scott
      December 17, 2013 at 4:51 am #

      Joe, good one only I feel like youre lowballing it a tad. It’ll be up in thr high 50`s or more.

  21. ShirleyKnutz
    December 17, 2013 at 6:40 am #

    What I don’t understand is Pittsfield states the new charter is in effect immediately so the government is using it to do its business. The new council is not sworn in get so the new charter should bear on how the council is made up. I believe with all the politicizing that is going on in all levels of government has created the apathy that is seen by no show voters.

  22. dusty
    December 17, 2013 at 1:18 pm #

    Don’t councilors get free health insurance as part of their compensation as well?

    And if Mr Cacamo does not accept his 8 grand does that go back to the taxpayers? Or do they just split it up amongst the school administrators because it is the right thing to do?