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.
“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.