OML Update

I received the following letter in the mail today. It resolves and Open Meeting Law [OML] violation that I filed in March. Almost 5 months after the filing. When it is posted it can be read on line here, Attorney General 2011 Determinations.(see 2011-35)
Though it takes no action beyond what the City Council has already done, it does verify that an OML violation did occur.
It also did not clarify any further the notion of “intentionality” which was the crux of my complaint.

I admit that I was hoping for a training program to be required for Councilors.

Read and make up you own mind.

August 22, 2011

OML 2011-35

Peter J. McQuillan, Esq.
City Solicitor
41 Pleasant St.
Methuen, MA 01844

RE: Open Meeting Law Complaint

Dear Attorney McQuillan,

This office received a complaint filed by Jack Burke, dated March 28, 2011, alleging that the Methuen City Council (the “Council”) violated the Open Meeting Law, G.L. c. 30A, § 18- 25. The complaint alleges that Methuen City Council Chair John Cronin “sent around an e-mail to other city councilors asking them for their feedback” on whether they would support an item Councilor Cronin was considering adding to an upcoming Council meeting agenda. The complaint was first filed with the Council on January 18, 2011. We received the Council’s response to the original complaint on or about January 31, 2011.

We find that while the actions of Councilor Cronin violated the Open Meeting Law, the Council took appropriate measures to prevent a further violation and took remedial action to cure any effects of the violation. In reaching this determination we reviewed the January 18 and March 18, 2011 complaints; the Council’s January 31, 2011 response to the complaint; and the notice and minutes of the Council’s January 19, 2011 meeting. We also spoke with you by telephone on April 19, 2011. Finally, we reviewed a supplemental response from the Council, dated April 20, 2011.

FACTS
Over the past year, the City of Methuen has undertaken a charter review process through a Charter Commission. One member of the Charter Commission was Councilor Cronin. One topic debated by the Charter Commission was whether the City Council should consider a ballot question on abolishing term limits for municipal offices. The City Council would have to approve a ballot question before a municipal special election could be held. The Boston Globe reported on January 13, 2011, that Councilor Cronin would not bring the ballot question to the City Council for a vote “if he determine[d] he lack[ed] the council votes needed to schedule a special election.” John Laidler, Four Names Emerging as Methuen Mayoral Candidates, BOSTON GLOBE, January 13, 2011. On January 14, 2011, Councilor Cronin sent an email to all of his fellow city councilors with the subject line “TR-l 1-1 Resolution for the Submission of Term Limit Questions on the Ballot of a Special Municipal Election (Re. of CIr. Cronin).” The text of the email was as follow

The above requires a vote of the City Council to go to the state with a Home Rule Petition to have a Special Election. Please advise whether or not you support this concept via a phone call [phone number redacted] or email.

According to the Council’s January 31, 2011 response to the complaint, none of the councilors responded to the request by email, though three city councilors responded to the email by telephoning Councilor Cronin. h a letter to this Office dated April 20, 2011, in response to a specific request from our office, the Council affirmed that “the content of those telephone conversations was general in nature and referenced simply the agenda for the forthcoming regularly scheduled City Council meeting. No dialogue specifically referenced the subject matter of the complaint.”

The Council convened an open meeting on January 19, 2011. The meeting notice included the topic “TR- 11-6 Resolution for the Submission of Term Limit Questions on the ballot of a Special Municipal Election (Req of Chr Cronin).” The minutes of the meeting reflect that during the public participation portion of the meeting, the complainant, as well as another individual, addressed the Council regarding a possible Open Meeting Law violation by Councilor Cronin in soliciting Council members’ opinions regarding the term limits topic. Both residents requested that the Council remove the topic from the meeting agenda. When the Council reached the New Business portion of the meeting and began consideration of the term – limits topic, Councilor Cronin stated that he thought it was only fair that the public understand the Open Meeting Law allegations raised earlier in the meeting. Councilor Cronin explained that the topic was added to the agenda a week before the meeting, but he acknowledged that “the email I sent out, although I did not realize it at the time, was not appropriate according to the open meeting law.” Councilor Cronin went on to state for the record that, “[t]here was no intention of biding anything on my part because I talked to reporters before it went on the agenda and I told them what my plan was so there was no intention to hide anything from the public.” Councilor Cronin then explained his reasons for supporting the ballot question, but removed the agenda item from the Council’s consideration “because of the confusion I caused.” Council Cronin added that, “I want to make clear [that] there were no emails sent to me, I did not receive any emails, and I don’t believe the Council office received any responses.”

DISCUSSION
The Open Meeting Law was enacted “to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.” Ghiglione v. School Conmittee of Southbridge, 376 Mass. 70, 72 (1978). A “deliberation” is defined as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” G.L. c. 30A, § 18. The Open Meeting Law defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” Id. The law requires that meetings of a public body be properly noticed and open to members of the public, unless an executive session is convened. See G.L. c. 30A, § 20(a)—(b), 21.

Councilor Cronin’s January 14, 2011 email to a quorum of his fellow Council members, requesting that the members report whether or not they support a special election for a ballot question, was a deliberation in violation of the Open Meeting Law. The email was a “written communication” sent to a quorum of the Council on a matter of “public business within its jurisdiction.” G.L. c. 30A, § 18. Councilor Cronin’s solicitation could have resulted in the Council making policy decisions outside of a public meeting had Council members replied. The councilors showed commendable restraint in declining to respond to Councilor Cronin’s email.

The three councilors who spoke with Councilor Cronin over the telephone regarding the meeting agenda did not address the email’s specific request, according to the Council’s April 20, 2011 letter. The Council affirmed that “the content of those telephone conversations was general in nature and referenced simply the agenda for the forthcoming regularly scheduled City Council meeting. No dialogue specifically referenced the subject matter of the complaint.” More to the point, the phone conversations with Councilor Cronin did not involve a quorum of the Council. There are nine members of the Council, and five councilors constitute a quorum. As the phone conversations, even if serial in nature, were between or among at most four members of the Council—less than a quorum—there is no violation of the Open Meeting Law resulting from these phone calls.

The Open Meeting Law complaint that followed this violation was filed with the Council on January 18, 2011. At the January 19, 2011 Council meeting, Councilor Cronin acknowledged his error and took responsibility for the violation. Councilor Cronin withdrew the term limits topic from the meeting agenda as it had been tainted by the email deliberation, even though it had been added to the meeting notice more than 48 hours before the meeting, as required by the Open Meeting Law. See G.L. c. 30A, § 20(b). Additionally, you wrote a memo in your capacity as City Solicitor, dated January 24, 2011, to the members of the City Council describing the nature of the violation and requesting all members to review the Guide to the Open Meeting Law provided by the Solicitor’s office. These steps, combined with the release of the email in question, were the proper remedial actions given the nature of the violation.

We note that, despite the complainant’s contention, we do not believe Councilor Cronin acted to intentionally violate the Open Meeting Law. Councilor Cronin even told a reporter that he was going to poll the members of the Council before adding the topic to the agenda. Once he was made aware of the violation, he acted appropriately to remedy the situation.

CONCLUSION
Councilor Cronin’s January 14, 2011 email was an inappropriate solicitation that resulted in deliberation by the Council in violation of the Open Meeting Law. However, we find that the Council’s actions in response to the complaint filed on January 18, 2011 were appropriate. The Council 1) acknowledged the potential for a violation; 2) publicly released the email sent by Councilor Cronin; 3) removed the tainted topic from the agenda; and 4) requested that all Council members review the Open Meeting Law Guidebook. We have confidence that the Council will avoid such email communications in the future.

We now consider this matter closed.
If you have any questions regarding this determination, please do not hesitate to contact me at the number below.

Sincerely,

Jonathan Sclarsic
Assistant Attorney General
Division of Open Government
Ph: 617-963-2045

cc: Jack Burke

Roberts rules–motion withdrawal

There has been much ado about Robert’s Rules here in Methuen. I am the cause of most of it. The City Council claims, in the procedures for that group, to follow the letter unless overridden by an existing procedure.
This is often not the case.
I have been accused of trying to slow government action or make government work at a snails pace.
I dispute these accusations.
I ask that our elected officials follow the rules and procedures that they write. It actually makes for a more efficient and effective process. Less prone to the whims of the time and able to quickly and easily verify all of it’s actions.

Recently I have been asking a lot about motion to withdraw.
I am told that resolutions or ordinances have been withdrawn and when I attempt to verify those statements there is no recourse or trail to show that to be true.

I checked the rules and procedures of the Council and Rule X section b) states:A motion shall be made and seconded. To clarify the debate, the Chairman of the City Council may ask the Clerk to read the motion from the notes. A motion may not be withdrawn without the consent of the second. When the mover modifies the motion, the second may withdraw. (highlighting added by author)
This is the only use of the term withdraw in the document.

The bottom line is that if a motion is placed on the agenda and the agenda is accepted, all items on that agenda belong to the Council as a whole. If they are voted upon for first read, even if tabled for any reason, they still belong to the meeting/Council.

The only way they can be removed is by a motion to withdraw and a vote taken.
For too long the City Council has used informal processes to obscure or hide actions taken.

I ask that each City Councillor and Councilor candidate read Robert’s Rules and ask that the next Council FOLLOW there own processes and procedures.

Here is a more technical explanation of the Motion to withdraw taken from Sonoma State University based upon Robert’s Rules of Order Made Simple. Also see; Robert, Henry M. (2000). Robert’s Rules of Order Newly Revised, 10th ed., p. 283–284.

Requests and Inquiries

c. Request for Permission to Withdraw or Modify a Motion.
Although Robert’s Rules of Order specify that until a motion has been accepted by the chair it is the property of the mover, who can withdraw it or modify it as s/he chooses, a common practice is that once the agenda has been adopted, the items on it become the property of the meeting.
A person may not, therefore, withdraw a motion unilaterally; he or she may do so only with the consent of the meeting, which has adopted an agenda indicating that the motion is to be debated.
Similarly, a person cannot, without the consent of the meeting, change the wording of any motion that has been given ahead of time to those attending the meeting-for example, distributed in printed form in advance, printed on the agenda, a motion of which notice has been given at a previous meeting, etc.If a person does want to change the wording, they must move to substitute or amend before the body can consider the changed motion.
The usual way in which consent of a meeting to withdraw a motion is obtained is for the mover to ask the consent of the meeting to withdraw (or change the wording).
If no one objects, the chairperson announces that there being no objections, that the motion is withdrawn or that the modified wording is the motion to be debated.
If anyone objects, the chair can put a motion permitting the member to withdraw (or modify) or any two members may move and second that permission be granted.
A majority vote decides the question of modifying a motion–similar to amending the motion.
A two-thirds majority is needed for permission to withdraw a motion, as this has the effect of amending the agenda.

Job Posting from City Website

Here is the two week nationwide search.
The job has not even been voted upon for creation.
Only the funding mechanism has been determined.
Posted on the City website.

July 1, 2011
Pursuant to the provisions of the Methuen Municipal Code, §6-24, the Mayor announces the following vacancy:

Title of Position: Human Resource Director/Assistant City Solicitor
Status of Position: Permanent Full Time

Statement of Duties
The holder of this position will have the following duties and responsibilities:
1) Establish and maintain with confidentiality as required by law the employee records files including employee materials and health records in accordance with HIPPA laws.
2) Coordinate with and manage the civil service hiring process under Massachusetts Law. Said duties including the filing of all documents with and providing information to the Civil Service Commission, EEOC and applicable agencies.
3) Design and submit to the executive for approval and distribution human resources policies, procedures and programs. Coordinate and distribute all employment policies, procedures and programs to the departmental officers and employees as legally required.
4) Conduct and oversee training of employees on issues including ADA, FMLA, Mass. FMLA, MCAD, Civil Service ERISA, HIPA, COBRA, EEOC, and other employment related regulations.
5) Oversee departmental development, Human Resource Information Systems (HRIS), employee relations, training and development, benefits, compensation, organizational development, and employment.
6) Participate in collective bargaining as directed by the Mayor.
7) Manage recruiting and staffing logistics.
8) Oversee performance management and improvement systems.
9) Handle organization development.
10) Conduct and manage employment issues including internal inquiries of complaints and ensuring city government compliance with regulatory concerns and reporting.
11) Conduct employee orientation, development, and training.
12) Oversee employee relations.
13) Manage employee communication.
14) Manage employee safety, welfare, wellness and health; and
15) Manage employee services and counseling including workers compensation, IOD benefits, health benefits and insurance.
16) Establish and maintain workforce management policies.
17) Oversee and coordinate return to duty of employees on injury or other leave.
18) Under the direction of the City Solicitor, this person assists the City Solicitor with any legal matters that are presented to the city or school department. He/she shall represent the city in all proceedings before any court, administrative board or legislative committee. He/she will conduct civil lawsuits, draft legal documents, ordinances and resolutions and advise employees as to their legal rights.

Qualifications:
To perform this job successfully, an individual must be must be able to perform each essential duty satisfactorily. The requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

The successful candidate will posses the following:

 Master’s degree or equivalent; or four to ten years’ related experience and/or training. A member in good standing with the Massachusetts Bar and experience in the field of municipal law.

 Ability to read, analyze and interpret common technical journals, financial reports, and legal documents. Ability to respond to common inquires or complaints from employees, regulatory agencies and members of the community.

 Ability to apply principals of logical thinking to a wide range of intellectual and practical problems.

Salary: $69,722 Min. – $83,666 Max.

Last date for applying: July 15, 2011

Qualified candidates submit resume and cover letter to: Human Resource Department, 41 Pleasant St. room 205, Methuen, MA 01844

____________________
William M. Manzi III
Mayor

Suggestion

The following are from the Municipal Code of Methuen.
Check for yourself.

Article I. General

Sec. 3-1. Definitions
Sec. 3-2. Chief Administrator(A) Chief Executive (1) Duties (2) Powers
Sec. 3-2A. Temporary Absence of Mayor

Article II. Departments

Sec. 3-3. Departmental organization
Sec. 3-4. Oaths of office
Sec. 3-5. Administrative policy and procedures
Sec. 3-6. Reserved
Sec. 3-7. Department of Treasury and Tax Collection
Sec. 3-8. Reserved
Sec. 3-9. Department of Public Works
Sec. 3-9A. Repealed (see Appendix V – Initiative Petition)
Sec. 3-10. Department of Records
Sec. 3-11. Community Development Department
Sec. 3-12. Department of Assessment
Sec. 3-13. Fire Department
Sec. 3-14. Reserved
Sec. 3-15. Police Department
Sec. 3-16. Joint Human Resources Department – (JHR)

Article III. Boards, Commissions and Officers

Sec. 3-16. Civil Defense Director
Sec. 3-17. Conservation Commission
Sec. 3-18. Constables
Sec. 3-19. Contributory Retirement Board
Sec. 3-20. Animal Control Officer
Sec. 3-21. Board of Health
Sec. 3-22. Historical Commission
Sec. 3-22A. Historic District Study Commission
Sec. 3-23. Licensing Board
Sec. 3-24. Registrars of Voters
Sec. 3-25. Commissioners of Trust Funds
Sec. 3-26. Youth Commission
Sec. 3-27. Housing Authority
Sec. 3-28. Veterans’ Services Director
Sec. 3-29. Methuen Cultural Council
Sec. 3-30. Council on Aging
Sec. 3-31. Disability Commission
Sec. 3-32. Tourism Committee
Sec. 3-40. Board of Library Commissioners
Sec. 3-50. Residency Requirements
Sec. 3-60. Boards and Commissions Cost Reimbursement
Sec. 3-70. Public Advertisement for Boards and Commissions
Sec. 3-80. Establishing Ten Year Limit on Terms of Office for Members of Boards and Commissions
Sec. 3-90. Travel and Participation in Training Sessions Where Private Entities Provide Financing

Please note that the section of the Municipal Code referenced above has TWO section 3-16.
Article II. Departments
Sec. 3-16. Joint Human Resources Department – (JHR)
and
Article III. Boards, Commissions and Officers
3-16. Civil Defense Director
All sections in Article III. Boards, Commissions and Officers are misnumbered by 1.

I noted this when I read the ordinance that is being proposed by the Ad Hoc Consolidation Committee to give a job to the current Chief of Staff. That job is called the City Director of Human Resources / Assistant City Solicitor.
So far the legislation has been to copy the Order from 2007 and add wording to create the said position.

They recommend adding the following two sections to the current Sec. 3-16 Joint Human Resources Department – (JHR).

19) Under the direction of the City Solicitor, this person assists the City Solicitor with any legal matters that are presented to the city or School department.
He/She shall represent the city in all proceedings before any court, administrative board or legislative committee. He/She will conduct civil lawsuits, draft legal documents, ordinances and resolutions and advise employees as to their legal rights.

20) He/She will be a member in good standing of the Massachusetts Bar and shall have experience in the field of municipal law.

I propose that this section not be tampered with.
If you add these two lines as written it will require both JHRD’s to be practicing attorneys.
Do not hire a NEW City HR Director.
Simply create the JHR office that was promised in 2007.
Proper staffing for both branches.
Create goals and measure the Director on achievement of those goals.

These sections will also be added by amending the existing code.
The poorly worded Order has the following as Section two.
The Department shall be managed by two Joint Human Resources Directors (JHRD), one whose primary purpose is to oversee the School Departement Humen Resource Department.
The City Joint Human Resources Director shall also serve as an Assistant City Solicitor and shall exercise such authority as is provided for in Chapter 3-Section 3 (b) and Section 5 of the Municipal Code as a full Department Head.
The CityJoint Human Resources Director/ Assistant City Solicitor shall be a member in good standing of the Massachusetts Bar and shall perform legal work for the City at the direction of the City Solicitor.

So the School Department JHRD is to oversee the School Departement Humen Resource Department, but the City side JHRD has no such responsibility for the City Human Resource Department, instead becoming a Department Head in the Solicitor office. I know that’s not what they meant but it is implied due to poor wording.

They added an (s) to the word Director in second (paragraph) line of the existing code.
Section four and five below tell the rest of the story.

Section four changes this line from;
The department shall in addition to the Director have such other employees as recommended by the executive. The salaries and benefits for these employees shall be set by the city council by ordinance. The costs for the position of the (JHRD) shall be born equally by the general government and the school system.
To:
The department shall in addition to the Director(s) have such other employees as recommended by the executive. The salaries and benefits for these employees shall be set by the city council by ordinance. The costs for the position(s) of the (JHRD) shall be born equally by the general government and the school system.

Section five changes this from;
The Director of the Joint Human Resources Department shall be appointed by the Mayor provided that the Mayor seeks and obtains the consent to such appointment from the Superintendent of Schools. The Director’s appointment shall also be subject to approval by the City Council. The Mayor shall be the appointing authority of the additional employees in the department subject to recommendation of the Director.
To;
The City Director shall be chosen by the Mayor, with the assent of the Superintendent of Schools.
The School Director shall be chosen by the Superintendent of Schools, with the assent of the Mayor.
The City Director appointment shall be subject to approval by the City Council.
The Mayor shall be the appointing authority of the additional employees in the department subject to recommendation of the Director(s).

So we no longer need consent but only a tacit assent to make the appointments.

My suggestion is;

Here is the current Section 2.24. Department of Law

A. The Department of Law shall consist of the City Solicitor who shall, in accordance with Chapter 182 of the Acts and Resolves of 1985, be appointed by the City Council. The City Council shall, on or before January fifteenth in odd numbered years, elect, by ballot or otherwise, a City Solicitor to hold office for a term of two years and until his/her successor is qualified. He/she shall enforce all laws and act to protect the interests of the City and he/she shall:
1. Advise Council
Advise the Council or its committees or any City officer, when thereto requested, upon all legal questions arising in the conduct of City business.
2. Prepare Ordinances
Prepare or revise ordinances when so requested by the Mayor, Council or any committee thereof.
3. Give Opinions
Give his/her opinion upon any legal matter or question submitted to him/her by the Council under rules adopted by said body or by any other City officer.
4. Prepare Legal Instruments
Prepare for execution all contracts and instruments to which the City is a party and shall approve, as to form, all bonds required to be submitted to the City.
5. Prosecute Offenders and Defend Officials
Prepare, when authorized by the Mayor, all charges and complaints against, and shall appear in the appropriate court in the prosecution of, every person charged with the violation of a City ordinance or of any regulation adopted under authority of the Charter, or with the Council of a misdemeanor as declared by the Charter or by virtue of its authority. In any prosecution for violation of any regulations adopted by any board or commission created under authority of the Charter, the City solicitor shall act under the directions of such board or commission, subject to such paramount control as is given to the Administrator of the Charter.
6. Settlement of Claims
Have the power to adjust, settle, compromise or submit to arbitration, any action, causes of action, accounts, debts, claims, demands, disputes, and matters of favor of or against the City of in which the City is concerned as debtor or creditor, now existing or which may hereafter arise, not involving or requiring payment to exceed $500.00; and with the permission of the Mayor, may do likewise in matters not involving or requiring payment to exceed $2,500.00; provided the money to settle claims generally has been appropriated and is available therefor.
7. Make Reports
a. Immediate report of decision. Immediately report the outcome of any litigation in which the City has an interest to the Mayor and the Council.

b. Annual report of pending litigation. Make an annual report, to the Mayor and Council, as of the first day of July of all pending litigation in which the City has an interest and the condition thereof.
8. Control Legal Services Incidental to Council Action

Have charge of all legal services auxiliary to Council action in connection with the appropriating of property to public use.

9. Keep Records
a. Suits.
Keep a complete record of all suits in which the City had or has an interest, giving the names of the parties, the court where brought, the nature of the action, the disposition of the case, or its condition, if pending, and the briefs of counsel.

b. Opinions and Titles.
Keep a complete record of all written opinions furnished by him/her and of all certificates or abstracts of titles furnished by him/her to the City or any department or official thereof.
10. Notwithstanding that a public employee (as defined in Chapter 258, Section 1, Massachusetts General Laws) shall not be liable for negligent or wrongful acts as described in Chapter 258, Section 2, if a cause of action is improperly commenced against a public employee of the City, alleging injury or loss of property or personal injury or death as the result of the negligent or wrongful act or omission of such employee, said employee may request representation by the City Solicitor. The City Solicitor shall defend the public employee, if authorized by the Mayor, with respect to the cause of action at no cost to the employee; provided, however, that the City Solicitor determines that the public employee was acting within the scope of his/her office or employment at the time of the alleged loss, injury, or death, and further, that said public employee provides reasonable cooperation to the City and the City Solicitor in The defense of any action arising out of the same subject matter. If, however, in the opinion of the City Solicitor representation of the public employee under this section would result in a conflict of interest, the City Solicitor shall not be required to represent the public employee.

(1973 Ord., as amended by Ord #38, Revised; as amended by
Ord. #215, Adopted Dec. 2, 1985, as amended by Ord. #284,
Eff. April 20, 1988; as further amended by Chapter 145 of
the Acts and Resolves of 1996.)

Everything below this line I would propose to alleviate any workload problems in this office.
If more is required, then the Solicitor will have to present a workload and show that he is unable to carry out his duties due to the workload presented.

B. Assistant Solicitor
1.Office established.
There is established the office of assistant city solicitor.
The assistant city solicitor shall be elected by the city council upon recommendation of the city solicitor. Appointment of the assistant city solicitor shall be for a fixed term of two years and until his/her successor is qualified , which may be renewed or extended without limitation, pursuant to an employment contract which shall be entered into between the city and the assistant city solicitor at the time of appointment, and which shall also set the compensation to be paid to the assistant city solicitor, and such other specific terms and conditions of employment as may be recommended by the city solicitor and accepted by the mayor and the city council at the time of appointment.

2.Duties.
The assistant city solicitor shall be under the direction of the city solicitor and shall assist the city solicitor in the performance of the duties of the office and shall perform such other duties as may be assigned by the city solicitor.
The assistant city solicitor shall have the authority to represent the city in all proceedings before any court or other tribunal, when so requested and directed by the city solicitor.
In the absence of the city solicitor, the assistant city solicitor shall be responsible for the management and supervision of the office of the city solicitor.

3.Qualifications.
The assistant city solicitor shall be an able and experienced person learned in the law and an solicitor and counselor at law in the courts of the commonwealth.
In addition, said person shall be experienced in the area of municipal law.

C. Outside Legal Assistance.
The office of the city solicitor may also engage, by contract or otherwise, such clerical, legal, paralegal, and investigative personnel as may be provided for in the annual appropriations for said office.

D. Use of City employed personnel.
The office of the city solicitor may also engage, with the approval of the Mayor and City Council, properly qualified, per section B.3., personnel from other City Departments, as temporary Assistant solicitor for short term, specific assignment to alleviate workload congestion.

To me, this makes more sense. It keeps any conflict of interest between personnel who work for the Council and the Mayor, clearly defined. It allows for the Solicitor to contract to alleviate issues but requires clear responsibility to justify these actions to the City Council.

Know the rules…

Listening to the radio (WCCM) recently.
A sitting Councilor, who is running for re-election, was asked about a Committee that she claims to be the Chair of.

I have asked for proof that the Committee was formed. Curtly, was told to speak with the Solicitor.

I have searched for proof. None found.

The Councilor has signed for a copy of the following METHUEN CITY COUNCIL RULES AND PROCEDURES twice before. Should I assume that she has read them?

Let’s look at how a committee is formed by the Rules..

METHUEN CITY COUNCIL RULES AND PROCEDURES Amended February 2008

RULE VIII – COMMITTEES

a) For most purposes, the Council shall meet as a committee of the whole, but when necessary, an ad hoc committee shall be appointed and announced by the Chairman unless otherwise provided for, or especially directed by the majority of the City Council.
All appointments by the Chairman shall be ratified by the majority of the City Council.

b) No committee shall meet during any meeting of the City Council.

c) When a committee is appointed by the Chair, the first person named shall call the committee to order and then the committee members shall elect a Chairman.

d) All committees of the City Council shall consist of an odd number of three or more unless a different number shall be specifically ordered by the Council and no report shall be received from any committee unless agreed to in committee actually assembled, and all reports shall be in writing. Minority reports of committees presented in writing are to be accepted by this Council and the majority report shall be presented first. (Majority report to be read first; then the minority report will be read and action will be taken on the minority report before action on the majority report).

e) Items which have been referred to any committee of the City Council must be reported back to the City Council by that committee at least every month from the date of referral pending a final committee recommendation.

f) No sub-committee shall take any action on any business referred to that committee by the full City Council unless the committee has referred to it a motion or order to do so from the full City Council.

Take a closer look at the highlighted portions of section a.).
when necessary,
This seems straightforward. The mentioned committee will not be a standing committee. It will be constituted as needed.
an ad hoc committee shall be appointed and announced by the Chairman
This states that an ad hoc committee MUST be announced by the Chairman.
He must make a statement at a properly assembled meeting. The minutes of that meeting are public record, so anyone should be able to review these minutes and find when an Ad Hoc Committee was formed.
unless otherwise provided for,
Otherwise provided would be, if there is an Ordinance or Resolution or Order to create said committee. This would require a vote of the City Council which would be in the public record.
or especially directed by the majority of the City Council.
Again, a majority of Council can only meet at a duly authorized meeting. Such a meeting will have minutes.
All appointments by the Chairman shall be ratified by the majority of the City Council.
This states that all appointments to an ad hoc committee will be approved by a VOTE of the members.

I have searched the minutes of the City Council back before the Councilor in question was elected.
NO SUCH COMITTEE HAS BEEN CREATED which follows the rules above.

Thus the Councilor is making the whole thing up or should provide proof of appointment.

See my post on FOI to follow up on this process.

The Change Management Supermodel

I must be clear. This was not my post.
The original can be found here. NOOP.NL

Designers will find that most organizations can be considerably improved just within the context of the bounded design. This is because the barriers to change are usually in the decision-makers’ own minds and in the organization itself.

– Michael P. Jackson, Systems Thinking

Jurgen Appelo calls it Change Management 3.0 supermodel. because it wraps around a few smaller well-known models for change that each address one of the four aspects of change management listed here:

1. Adapt to the System (using the PDCA model)
I am well acquainted with the PDCA cycle. It is used in High Tech around the world.
Plan, Do, Check, Act.

2. Lead the People (using the ADKAR model)
Prosci’s ADKAR Model is an individual change management model. The name “ADKAR” is an acronym based on the five building blocks:

A Awareness of the need for change
D Desire to participate and support the change
K Knowledge on how to change
A Ability to implement required skills and behaviors
R Reinforcement to sustain the change

3. Work the Network (using the Adoption Curve model)
Based on Rogers model for the adoption and diffusion of innovations.

4. Change the Environment (using the 5 I’s model)

4 I’s listed below;could not find 5th I and article reference is not freely available.
(Note:Update: 5I Model —as of 1/1/2013)
1. Institution–create trust to accept common rules
2. Information–increase understanding of the situation
3. Identity–increase social belonging across teams
4. Incentives–address the need to improve oneself

Once you understand the supermodel you will be in a perfect position to try and “make” people better disciplined.

It is a shame that City Government cannot use tools from academia and industry to reinvent itself into the efficient tool it was meant to be.

The Methuen School System toutes it’s use of (see chart ) PIM methodology (Performance Improvement Mapping ) for continuous improvement but is unable to teach the City side how to rationally approach a problem, define the solution space and choose an optimum position based on data.

What a vastly different world it would be if this were adopted and used frequently to make the improvements that we wish for but never see.

FOI

FOI stands for Freedom of Information.
There are Federal and State statutes that cover this.
At the Municipal level we tend to use the State code.

I have a standard form that I created and use repeatedly.

I thought it might be instructive to track a request through the process.
So, here goes.

Yesterday I wrote a request. Here is the meat of that request.

This is a request under the Massachusetts Public Records Law (M. G. L. Chapter 66, Section 10).
I am requesting that I be provided copies of the following document(s):
Data may be supplied in a format compatible with Microsoft Excel or Microsoft Word on CD or electronically emailed.

I am requesting a copy of any (and all) resolution, ordinance, order or executive order that created the Ad Hoc City Council Consolidation Committee.
I also request copies of the appointments to this Committee.

This Committee has been mentioned at numerous meetings and the Chair is Jennifer Kannan.

I wrote and saved this request at 3:45pm on June 29th.

I went to City Hall today.
I filed the request with the City Clerk, requested and received a dated receipt at 10:47AM on June 30th.

The City Clerk is, by law, the keeper of records and thus the request goes to the Clerk.
The Clerk has ten BUSINESS days to respond.
This would mean that my request must be answered by July 14th.

There are three basic outcomes:
1. Receive the requested materials.
2. Receive a Letter or Written communication explaining why the request was turned down
3. No response at all.

I have seen all three.
Item 2 & 3 have an appeal process to the Secretary of State office.

Process is underway, i will post as the process moves forward.

Budget Conundrum

Some meetings require a PUBLIC notice.

From the Methuen City Charter;
Section 5-2. Action on the Budget.
(a) Public Hearing -
The City Council shall publish in one or more newspapers of general circulation in the City the general summary of the proposed budget as submitted by the Mayor by a notice stating:
(1) the times and places where copies of the proposed budget are available for inspection by the public, and
(2) the date, time and place, not less than two weeks after such publication, when a public hearing on said proposed budget will be held by the City Council.

Why is this interesting?
First because this notice appears to be required upon submittal of the budget by the mayor and requires a public hearing no earlier than two weeks later.
So what, I hear you saying.
Well the budget, by law, can be submitted as late as, June 20th each year.
( The actual date varies each year. It is set by statute as no later than 170 days after the organization date of the City. That date usually approximates to June 20th.)
The last day of the fiscal year is June 30th.

If we assume the budget is submitted at the last possible time and the public hearing cannot be done until two weeks (14 days) later, this puts the public hearing after the start of the new fiscal year.
Does the City close on July 1?

Ok, so, you say, let’s be creative and backdate the notice so the public hearing can be within the, roughly, 10 day window between June 20 and June 30.

Well if you do that don’t you violate the line above that states;
The City Council shall publish … the general summary of the proposed budget as submitted by the Mayor?

Doesn’t that imply that the notice should be published after the actual submittal of the budget to the Council? I suspect it does, but our elected officials seem not to agree.

Before we look at this years notices, Let me get to the second item of discussion.

The times and places where copies of the proposed budget are available for inspection.

The notice must contain a location (PLACES) where citizens can review the proposed budget prior to the public hearing. The TIMES when this public location is available must also be included.

Now let’s look at the two public notices from this year. There are two parts to the budget, the School and the City. Thus there are two public notices. Methuen posts their notices in the Lawrence Eagle Tribune, the only newspaper of general circulation in the city.
(please note; I understand that the following newspapers have a general circulation within Methuen. it is not my decision to use the Tribune or exclude these other publications. The Valley Patriot, Rumbo News & Methuen Life all publish within Methuen.)

Here is the notice for the School budget;

Methuen, Massachusetts NOTICE OF PUBLIC HEARING FISCAL
Methuen, Massachusetts NOTICE OF PUBLIC HEARING FISCAL YEAR 2012 SCHOOL SYSTEM BUDGET ESTIMATES Monday, June 13, 2011 6:45 PM Great Hall, Searles Building TO ALL CITIZENS OF METHUEN: Please be advised that the Methuen School Committee will hold a PUBLIC HEARING on Monday, June 13th at 6:45 PM in the Great Hall, Searles Building, 41 Pleasant St., Methuen, on its tentatively proposed budget estimates for Fiscal Year 2012 for the Methuen Public Schools. A general summary is shown below, along with this year’s approved budget estimates. PROPOSED APPROVED BUDGET BUDGET ESTIMATES FISCAL YEAR 2011 FISCAL YEAR 2012 CLASSIFICATION Professional Salaries: $40,006,748 $40,971,782 Classified Personnel Salaries: $1,682,779 $1,724,797 Other Salaries: $4,915,123 $5,197,508 Contractual Services: $10,007,826 $9,585,579 Supplies & Materials: $779,722 $760,547 Other Expenses: $64,575 $67,575 Municipal Charges: $11,083,835 $11,083,835 NET SCHOOL SPENDING $68,540,608 $69,381,124 Transportation: $3,240,873 $3,295,873 Community Service: $30,000 $30,000 Fixed Charges: $101,031 $101,031 Capital Outlay: $0 $0 TOTAL OPERATING BUDGET $71,912,512 $72,808,028 The budgetary adjustments represent an accommodation of school district academic needs, staffing level needs, and facility needs within each of the above designated account categories based on availability of operating revenue provided by the City and State. Copies if this proposed budget summary document are available for public examination at the Quinn Building, 90 Hampshire St., Methuen, MA 01844 ET ­ 5/28/11

Looks like a lot of information.
Let’s parse it exactly as it is written and see if we can get a clear picture of what information is included and what is not.
Here is the simple parsed version;

Methuen, Massachusetts
NOTICE OF PUBLIC HEARING FISCAL YEAR 2012 SCHOOL SYSTEM BUDGET ESTIMATES
Monday, June 13, 2011 6:45 PM Great Hall, Searles Building
TO ALL CITIZENS OF METHUEN:
Please be advised that the Methuen School Committee will hold a PUBLIC HEARING on Monday, June 13th at 6:45 PM in the Great Hall, Searles Building, 41 Pleasant St., Methuen, on its tentatively proposed budget estimates for Fiscal Year 2012 for the Methuen Public Schools.
A general summary is shown below, along with this year’s approved budget estimates.
PROPOSED APPROVED BUDGET
BUDGET ESTIMATES
FISCAL YEAR 2011 FISCAL YEAR 2012 CLASSIFICATION
Professional Salaries: $40,006,748 $40,971,782
Classified Personnel Salaries: $1,682,779 $1,724,797
Other Salaries: $4,915,123 $5,197,508
Contractual Services: $10,007,826 $9,585,579
Supplies & Materials: $779,722 $760,547
Other Expenses: $64,575 $67,575
Municipal Charges: $11,083,835 $11,083,835
NET SCHOOL SPENDING $68,540,608 $69,381,124
Transportation: $3,240,873 $3,295,873
Community Service: $30,000 $30,000
Fixed Charges: $101,031 $101,031
Capital Outlay: $0 $0
TOTAL OPERATING BUDGET $71,912,512 $72,808,028
The budgetary adjustments represent an accommodation of school district academic needs, staffing level needs, and facility needs within each of the above designated account categories based on availability of operating revenue provided by the City and State.
Copies if this proposed budget summary document are available for public examination at the Quinn Building, 90 Hampshire St., Methuen, MA 01844
ET ­ 5/28/11

Well, it would appear that this complies with the Charter with only one shortcoming, the times when the Quinn Building will be open for this public inspection. That was pretty easy to review. It stated that the budget is tentative and proposed. The dates are well within the statatory boundaries.
(Just a quick aside–the Mayor is the Chairman of the School Committee. You might want to keep that in mind.)

Now, let’s look at the City side;
Here is the notice;

TO: The Mayor and Department Heads FROM: John A. Cronin, Council Chair RE: Fiscal Year 2012 Budget Workshops & Public Hearing Schedule The Public Hearing for the Fiscal Year 2012 Water and Sewer Enterprise Fund will be held on June 21, 2011, at 6:30 p.m. The Public Hearing on the Methuen Municipal Budget will be held on June 21, 2011 at 6:45 p.m. in the Great Hall, Searles Building. The following dates have been set for Workshops on the various Departmental Budgets. All Workshops will be held in the Great Hall and will begin at 6:00 p.m. June 14, 2011 (6:00 p.m.) June 20, 2011 (6:00 p.m.) City Council Greater Lawrence Technical High School City Clerk Methuen Schools Mayor Water & Sewer Enterprise Fund Human Resources Police Services Information Technology Fire Prevention Legal Services Emergency Management Historical Commission City Auditor Department of Public Works Assessment-Real & Personal Solid Waste Disposal Treasurer/Tax Collector Capital Improvement Program Reserve Fund Bonds & Interest NOTE: Municipal Budget will be Employee Benefits Insurance available for review in the Non-Contributory Retirement City Council Office Contributory Retirement June 21, 2011 Public Hearing Community Development Sewer & Water Enterprise – 6:30 p.m. Conservation Inspectional Services June 21, 2011 Public Hearing Health Services Municipal Operating Budget – 6:45 p.m. Elder Affairs Nevins Library June 21, 2011 Special Meeting Recreation Services Second Read – Resolutions – 7:00 p.m. Veterans’ Benefits & Services Municipal Operating Budget ET ­ 5/27/11

Wow, looks pretty daunting!
Here is the simple parse, as far as I could get, anyway;

TO: The Mayor and Department Heads
FROM: John A. Cronin, Council Chair
RE: Fiscal Year 2012 Budget Workshops & Public Hearing Schedule
The Public Hearing for the Fiscal Year 2012 Water and Sewer Enterprise Fund will be held on June 21, 2011, at 6:30 p.m.
The Public Hearing on the Methuen Municipal Budget will be held on June 21, 2011 at 6:45 p.m. in the Great Hall, Searles Building.
The following dates have been set for Workshops on the various Departmental Budgets.
All Workshops will be held in the Great Hall and will begin at 6:00 p.m.
June 14, 2011 (6:00 p.m.)
June 20, 2011 (6:00 p.m.)
City Council
Greater Lawrence Technical High School
City Clerk
Methuen Schools
Mayor
Water & Sewer Enterprise Fund
Human Resources
Police Services
Information Technology
Fire Prevention
Legal Services
Emergency Management
Historical Commission
City Auditor
Department of Public Works
Assessment-Real & Personal
Solid Waste Disposal
Treasurer/Tax Collector
Capital Improvement Program [editor-separate issue at later date]
Reserve Fund
Bonds & Interest
NOTE: Municipal Budget will be
Employee Benefits Insurance
available for review in the
Non-Contributory Retirement
City Council Office
Contributory Retirement
June 21, 2011 Public Hearing
Community Development
Sewer & Water Enterprise – 6:30 p.m.
Conservation Inspectional Services
June 21, 2011 Public Hearing
Health Services
Municipal Operating Budget – 6:45 p.m.
Elder Affairs
Nevins Library
June 21, 2011 Special Meeting
Recreation Services
Second Read – Resolutions – 7:00 p.m.
Veterans’ Benefits & Services
Municipal Operating Budget
ET ­ 5/27/11

Notice that there are no numbers or any real summary.
The reason why is that the notice was posted well prior to the Mayor submitting the proposed budget. The proposed budget was submitted on June 13th just prior to the first Workshop.
There is no note that the budget is tentative.
I am sure I could do a more comprehensive parse and arrive at;
NOTE: Municipal Budget will be available for review in the City Council Office.
However, there still is no time announced when this office is open for such a review.
Also, if I read the notice on the publication date and went to the Office, there is nothing to review.

See the little line at the end, that states, Second Read – Resolutions – 7:00 p.m?
Well, what did the first read state?
Maybe all the information I need as a citizen to make an informed decision is there!
Here is the Agenda items from 6/6/2011
(remember the budget wasn’t turned in until 6/13/2011)

10. NEW BUSINESS

Resolutions:
1. TR-11-31 Resolution Providing for the Adoption of the Fiscal Year 2012 General Government Budget Link to Proposed Resolution TR-11-31
2. TR-11-32 Resolution Providing for the Adoption of the Fiscal Year 2012 School Department Budget
3. TR-11-33 Resolution Providing for the Adoption of the Fiscal year 2012 Greater Lawrence Regional Vocational Technical High School Budget
4. TR-11-34 Resolution Providing for the Adoption of the Fiscal Year 2012 Sewer and Water Enterprise Budget

Notice that if you open the link to the resolutions, it starts off by stating that the Mayor has submitted a budget per statute. Of course all the requisite numbers are there.
It is no use complaining to your Councilor.
They tell you it is a procedural issue.
I disagree.
If you voted in favor of these resolutions you are doing a disservice to your constituents.
It states that a budget has been submitted. It was not but you voted to state it was.
Do you not see the lie in your vote?
Then note that no numbers are in the resolution. They are TO BE DETERMINED LATER.
It doesn’t even state that!
At least that statement would be a step in the correct direction. Voting on a resolution with no numbers and the implication that they are forthcoming is analogous, in my mind, to signing a blank check.
When I asked my Councilor why he approved a resolution with no numbers it was ” I have never done that” and when pointed out, it was ” that’s just procedural”.

I think changes need to be made….
Look up the term meme and the discussion about memetics.
I posit that getting elected to the culture on this City Council is deleterious to the citizens of Methuen. There is a poor model of cultural information transfer that allows numerous violations of statutory procedure that disallow the citizen to be accounted for in the actual financial life of this government.

(as a side note–someone has posited that the budget is inviolate. No cuts can be made due to statutory reasons. I posit that you can find out exactly what the inviolate rules are by setting all department budgets to zero and then pass that budget back to the Mayor.)

Unheard Budget Comment

The following comments were written by a citizen who twice went to the budget hearings to speak.
Due to audio problems on his first attempt, he was unable to hear the Chair ask if anyone else wished to speak.
The second attempt at expressing himself was rebuffed by the chair who brusquely stated that we would have no public participation, we are here to vote on the budget.

Here is the text as written by Mr. Guy D’ambrosio.

“First, I would just like to thank the City Councilors for their efforts, you have a tough job ahead of you. I heard today that our economy is still way behind of where the government thought it would be. And because of this alarming news we as in the City of Methuen need to make concessions, compromises and or cuts somewhere in this proposed budget. The citizens of this community voted you in to make the correct decisions for us all, please keep this in mind this evening.
In these hard economic times government should not be getting larger but getting smaller. I hear people say that our services will be impacted or go away all together. That may be a true statement but we will all share and feel the pain together. That being said, I think we need to start trimming the fat. We need to downsize in lean times just as companies do. In lean times there is no way around it. It takes guts to make the tough call in tough times. I really have not seen any of that taking place.
If we have to layoff then that is what we do. The private sector just can’t go raise taxes.
It’s hard to justify doing more for the Fire Department. At the present time you want 5 more men plus $800,000 for overtime. If it cost so much to maintain the fire trucks and equipment then why is there a fire truck almost daily at Market Basket. It is obvious to the tax payer that the department does nothing to conserve.
Let’s really look into privatizing the ambulance service and the City won’t have to worry about the maintenance of the ambulances. We must make a real effort to cut back.
We just put in a new park. All I hear the DPW Director say is he doesn’t have enough man power to keep up with the parks we already have. How will a park bring in dollars? It won’t.
I know, wait till next year. I don’t think they are going to get better that fast. We will be here at the same point next year.
It is time for changes and now more than ever this is being made very clear.
Because of shortfalls in revenue all we do is raise taxes. We need to make cuts as well.
Raise my taxes and make cuts if you must. Layoffs are not good but it is a fact of life in tough times. In my opinion, this is where we are again. We can’t keep putting bandaids and paper clips to fix the problem, I can tell you it doesn’t work.
We were in the same spot last year and no surpise the econmy really didn’t get any better. It’s time to make cuts and some of those cuts are going to hurt but we have to try. If you look around the neighborhoods every yard with 3 feet high grass is a home foreclosing. Things are not getting better, nor are they anytime soon.
So in closing I urge you all to do the right thing here tonight fo all of Methuen
Thank you.”

On the Rise!

I spoke before the City Council on June 6th.

I noted that there were four (4) contracts on the agenda.
They were all for chemicals for the Water treatment plant.
When I compared the chemical spending of the Enterprise fund for the past 5 years I noted that they are on a line of increasing cost. [based on linear regression analysis]
The amount of water available to be consumed has remained constant over that period.
However, we have spent about $28,000,000 dollars in upgrades to the water treatment plant.
We were told that this would lead to a decrease in Maintenance costs.
I understand about inflation and the cost of business increasing.

My question to the Council was ,

“When will I see the maintenance costs level off due to the upgrade cost?

The Chair person stated that they would send that request to the appropriate department for a response.

I must congratulate the chair.

I was sent an email, on June 9th, that stated,

“At the last council meeting you asked a question at public participation regarding the water treatment plant and when its costs would stabilize. Chairman Cronin has forwarded your question to the Mayor’s office, presently he has not heard back. When this office receives an answer we will forward it to you.”

I anticipated a response, especially as the request came at budget time and from the Chairman.

Today, June 13th, I received this response.
“Chairman Cronin has sent your question regarding the water treatment plant to the Mayor (6-9-11). To date the Chair has not received a response from the mayor’s office. Chairman Cronin is suggesting that you follow up your request with the Mayor’s office and/or Chief of Staff… Thank you”

Does not bode well if the Chair of the City Council can’t get an answer.

NOTE: Here we are almost six months later…..No answer and no follow up. [12/1/2011]