Wednesday, November 30, 2011

Take My Council, Please: The Walsh Filibuster...

**UPDATED 12/3/11** Following a report by Maureen Turner posted to her Valley Advocate blog "On Springfield" on biomass & campaign contributions, the Republican today singled out Kateri Walsh's hundreds in campaign contributions from the Callahan family and their lawyer Frank Fitzgerald.  The same report notes that City Comptroller Pat Burns found ZERO financial implications to the city if the council appeals PRE's permits to the Board of Appeals.

When Steven Desilets approved a building permit for Palmer Renewable Energy’s biomass plant off Page Boulevard, he had to know it would provoke a rebuke from the City Council.  Five months before he approved that permit, the council voted 10-2 to revoke PRE’s permit on the grounds that the project had changed considerably from its previous incarnation and would pose a threat to human health.  Desilets would approve the permit on the advice of the Law Department, which argued that PRE did not even need a special permit under the revised proposal.

On Monday the Council gathered for a special meeting to formally appeal the building permit.  Because the council is an integral part of the planning and zoning process of the city, it has standing under the umbrella state zoning law to appeal the decision.  It can appeal to both the city’s Board of Zoning Appeals and, if still unsatisfied, to court as well.  Indeed, it seemed as if the council would do exactly that last night…until one councilor made Republican Senate Leader Mitch McConnell proud and filibustered.

Councilor Fenton (Facebook)
Before the meeting began it was well-known where everybody stood.  Ward 2 Council Mike Fenton wisely requested a recorded vote on last week’s non-binding resolves and it revealed that at-large Councilors James Ferrera, Tim Rooke and Kateri Walsh were opposed to any further council action to oppose the biomass plant.  All ward councilors and at-large councilors Thomas Ashe and Jose Tosado were in favor of further action just as they were in favor revoking the permit.

Nevertheless, the opponents tried their best to derail the process.  Ferrera started first by trying to sow the seeds of confusion among the councilors with an assist from City Solicitor Ed Pikula.  Ferrera inquired into who would represent the council if it voted to appeal and Pikula argued that the Law Department may need to recuse itself because it would be obligated to defend the building commissioner.  Ferrera also asked about PRE’s existing suit against the city over the council’s permit revocation.  However, that remains, as Pikula described, a placeholder suit if a court or other board rules the special permit is indeed needed.

Ward 8 Councilor John Lysak took on Pikula’s position directly asking how the Law Department could be defending the city against PRE’s lawsuit on the revocation while maintaining the position that a special permit is not necessary.  Pikula argued that the two issues were parallel, but did not have conflict within each case individually.

At the same time, however, Pikula noted that the council cannot appropriate money on its own for a lawyer.  Though true, Pikula could also not deny that the council could finance counsel out of its own pockets, receive pro bono representation, or even go to court pro se.

However, Fenton noted that the council needed no lawyers to appeal to the Board of Appeals.  The board is an administrative body just like the City Council and like the City Council, appellants to the board appear without any council constantly.  Certainly a lawyer can represent an appellant before the board, but there are no legal documents to serve or actions taken that require a law license to be properly executed.  Thus, before the Board of Appeals, the council needs no lawyer and does not even need to contemplate the need to find money for one until and unless the Board rules against the council.

Councilor Walsh (WMassP&I)
Councilor Walsh condemned the appeal as an attack on the building commissioner himself.  While it is true that many were upset at his decision (especially as some sources say he was unduly pressured to issue the permit), being a professional it seems hard to think that he would suffer an existentialist crisis because politicians disagree with him.  Moreover it seems all but absurd for the council to not act because, in effect, a city official's feelings would get hurt.

Pikula continued to hedge, saying that he was unsure if the Council had the authority to appeal (it plainly does).  If it was not clear that the goal of opponents was to delay the vote until it was too late for the council to appeal, this soon became unmistakable.  Councilor Rooke called for a legal opinion from the same city solicitor who disagrees with the council’s position.  The council shot the referral down on a 10-3 vote with only Ferrera, Rooke and Walsh supporting it.

 Councilor Walsh Channeling Mitch McConnell?
(by WMassP&I from Facebook & Wikipedia images)
At this point passage of the appeal seemed inevitable, but then one at-large councilor stood and used a parliamentarian tactic to halt all debate.  Councilor Mitch McConnell, er Kateri Walsh, invoked Rule 20, which ends all debate on a measure pending a report on its financial impact.  Council President Jose Tosado held a temporary recess to see if there were any means to avoid the rule’s effects since the council was merely voting to assert a legal right, not pass a law or order that could cost the city money.  The council deciding to vote to appear before another city body like any citizen could will cost nothing.  Nevertheless, City Clerk Wayman Lee informed Tosado there was no way to set aside the rule.

Walsh defended her position to media outlets saying that there could be costs of an appeal, but that is, in fact untrue.  The council would need to take a separate vote, and only after it loses before the Board, to appeal to a court where a lawyer, and the funds to pay him, might be necessary.   

Sue Reid, a lawyer from the Conservation Law Foundation, a New England Environmental Advocacy group, described Walsh’s move to WMassP&I as “cowardly.”  Still, councilors supporting the appeal, while perturbed, were confident that by next Monday they would be fully prepared to vote for the repeal.  Reid, commenting on the need for legal counsel said it was apparent that the council had plenty of talented members who could ably and intelligently represent the council before the Board of Appeals.  As for possible court actions, she felt that that was too far ahead in the future to worry about the council needing a lawyer.

Walsh is not alone in her opposition, but she made the decision to engage a tactic that either betrayed a terrible ignorance of the law and the council’s role in city life or exposed her own political cynicism.  Realizing that she and her side were hopelessly outmatched, she reached for what was essentially a filibuster to delay the council’s action to assert that its decisions matter.  However, unlike Senate Republicans, Walsh’s tactic is not a brick wall.  The council has enough time to digest this delay.  Instead, Walsh merely bought herself scorn and, possibly, more scrutiny than she might prefer.


Mo Turner said...

Good piece, Matt.

(Wonder if your doctored photo of Kateri Walsh will cause the same uproar that James Bickford's photo of Patti Devine did in Holyoke?)

Matt S. said...

I'm alright with uproar. No such thing as bad publicity!

Bill Dusty said...

Err... soon-to-be former City Councilor Barney Frank - I mean Amaad Rivera - used the same rule to stop discussion on an otherwise unanimous eminent domain proceeding needed for redeveloping the Forest Park School...


Matt S. said...

You are quite right, Bill. For the record, we implicitly condemned the usage of Rule 20 then complete with Madman Mitch references. Despite an easing of our relationship with Rivera, we stand by our comments about Rivera's decision then. Rule 20 should not have been used then nor now.

That said, the Comptrollers report would in fact note that authorizing eminent domain would entail obligating the city financially. Appealing a decision of the building commissioner will not. Rule 20 exists so the council does not authorize an action that will force them to make an appropriate against their will. Nothing about appealing the biomass plant contains either an explicit or implicit obligation of funds.

Again, that said we disapproved of both in both instances.