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Edward M.

Pikula
City Solicitor
Law Department
36 Court Street, Room 210
Springfield, MA 01103
Office: (413) 787-6085
Direct Dial: (413) 787-6098
Fax: (413) 787-6173
Email: epikula@springfieldcityhall.com
THE CITY OF SPRINGFIELD, MASSACHUSETTS

December 6, 2016
Domenic J. Sarno, Mayor
City of Springfield
36 Court Street
Springfield, MA 01103
Re: Ordinance Changes for Police Commissioner and Police Commission
Dear Mayor Sarno:
You requested legal information concerning the City Council Order Amending Chapter
67 and 16, Police Commissioner/Board of Police Commissioner.
In short answer, the City Charter provides that all heads of departments and members
of municipal boards shall be appointed by the mayor without confirmation by the city
council. (Mass. Gen. Law ch. 43, 52).
In direct conflict with that express provision of the City Charter, the amendment provides
that all appointments made by the Mayor to the Board of Police Commissioners must be
confirmed by a majority vote of the City Council before said appointment becomes
effective.
Further, in direct conflict with the above provisions, the Ordinance strips the Mayor of
authority under the Charter to appoint the day to day Head of the Police Department.
These direct conflicts between the Ordinance and the Charter are invalid.
In addition, the amendment abolishing the position of Police Commission is also contrary
to the provisions of municipal finance laws, which place executive power and the
authority to reorganize municipal department, in particular the police department, in the
office of the Mayor, not the City Council.
Finally, there are significant policy issues for consideration by the Mayor which weigh
against moving backwards in adopting this reorganization.
A more detailed analysis follows.

Conflict with City Charter.


The Plan A charter was adopted by the City of Springfield to be effective on the first
Monday of January, 1962; it superseded the charter of St.1852, c. 94 (as amended)
Kaczmarski v. Mayor of Springfield, 193 346 Mass. 432, 433 (1963). Under Plan A,
while the legislative powers of the city are vested in the City Council (See Charter
provisions in Mass. Gen. Law ch. 43, 50), the City Council is only authorized to elect
its president and the city clerk (Mass. Gen. Law ch. 43, 18, cl. 3) and there is no
express provision for election or appointment by it of any other municipal officer.
The City Charter provides that all heads of departments and members of municipal
boards shall be appointed by the mayor without confirmation by the city council.
(Mass. Gen. Law ch. 43, 52).
In direct conflict with express provisions of the City Charter, the proposed amendment
provides that all appointments made by the Mayor to the Board of Police Commissioners
as called for under Section 59 of the amendment, must be confirmed by a majority vote
of the City Council before said appointment becomes effective.
In addition, transfer of authority for appointment of the Department Head for the Police
Department away from the Mayor (where it currently is) to a Board of Police
Commissioners also conflicts with the plain language of the Citys Plan A City Charter
providing that the Mayor appoints Department Heads.
The plain language of the City Charter found in Massachusetts General Laws, Chapter
43, Section 11 provides that as far as applicable to the Plan A form of government
adopted by the Springfield, the Plan A Charter provisions shall supersede the
provisions not only of the prior charter, but also of the general and special laws relating
thereto and inconsistent with the Plan A form Charter. As such, the Plan A provisions
placing executive authority in the Mayor, not the City Council, overrides the prior
provisions in the Citys original City Charter of 1852, as amended, which contained
conflicting provisions.
Conflict with Executive Authority under the Charter and Municipal Laws.
The abolishment of the Office of Police Commissioner and reorganization of a portion of
the Police Commissioner duties also conflicts with provisions under Massachusetts law.
Under the Police Commissioner Ordinance, a single Police Commissioner (appointed by
the Mayor) holds the powers as appointing authority under Civil Service laws. See
Mass. Gen. Law, ch. 31, 41. Under Civil Service law the appointing authority is
responsible for discipline through discharge, removal, or suspension. Under this
Ordinance the single Police Commissioner acts as the Department Head for the Police

Department, which includes the duties of the Chief of Police as established in the City
Ordinances.
The Police Commissioner Ordinance was designed to work in conjunction with state law.
The Mayor is also authorized by the General Laws of Massachusetts to establish an
employment contract for the salary, fringe benefits, and other conditions of employment,
including but not limited to, severance pay, relocation expenses, reimbursement for
expenses incurred in the performance of the duties of the Police Commissioner, as well
as liability insurance, conditions of discipline, termination, dismissal, and reappointment,
performance standards and leave. See Mass. Gen. Law, ch. 41, 108O. The contract and
the appointment of the Police Commissioner under this statute are outside the provisions
of the Civil Service law. In contrast, the appointment to the position of Chief of Police
established by the City Ordinance is subject to the Civil Service laws.
A return to the Board of Police Commissioners transfers appointing authority powers
under Civil Service to the Board of Police Commissioners; (shall have and exercise the
powers and duties vested in the mayor and city council by chapter 244 of the Acts of
1909). Under the Board Ordinance, the Board would meet once a month. The day to
day operation of the Police Department would be in the hands of a Chief of Police who
would act as the Department Head; appointed by the Board; not the Mayor, contrary to
the Charter as previously discussed. As noted, the Chief of Police is a Civil Service
position.
The current budget does not have any provision to fund a Chief of Police. Under the
provisions of Massachusetts General Laws Chapter 44, 32, the City Council does not
have authority to fund any department salary or position without the recommendation of
the Mayor. Under municipal finance laws applicable to the Citys form of government,
the City Council only has power to approve the recommendation or reduce or reject any
recommendation. However, the City Council has no authority to increase any amount in
the budget or add any amount for a purpose not included in the Mayors recommended
budget. In summary, authority to act as the Citys Chief Executive is reserved for the
Mayor, not the City Council.
Public Policy concerns - History repeating itself.
It has been said that those who ignore history are doomed to repeat it. The changes in the
Ordinance at issue here, rekindles a debate occurring more than 100 years ago. A review
of the history of efforts to reform the government of the Police Department follows.
The current Police Department organization with a single Police Commissioner originates
from efforts to modernize and improve the Department by the Finance Control Board. In
July 2004, in the face of an escalating financial crisis, the Legislature of the
Commonwealth of Massachusetts created a state-run Finance Control Board with
authority over all of the City of Springfields finances. In essence, Springfields existing
municipal government was replaced by the Control Board. Among the Control Board

powers was to alter or rescind any action or decision of any municipal officer,
employee, board or commission.
The Control Board reorganized many aspects of the Citys government, including
changes to the City Charter to create a Department of Administration and Finance which
shall be responsible for the overall budgetary and financial administration of the City.
The department is under the charge and control of a Chief Administrative and Financial
Officer, (the CAFO). The CAFO reports to and is directly under the Mayor. The
Control Board existed until July of 2009. Since that time Springfield has experienced
financial stability and has seen a resurgence of economic activity. See Charter Changes
included in Chapter 468 of the Acts of 2008.
During its tenure, the Control Board invested in several management studies covering
various City departments including a comprehensive study of the Springfield Police
Department. The studies included an evaluation of police needs of the community as well
as the chain of command at the Police Department. The evaluation was conducted by an
expert in Police Administration; Carroll Burracker. As a result of the study, the Control
Board created a new Ordinance position in 2005 to oversee the Police Department; the
office of Police Commissioner. Under the new Ordinance the Police Commissioner has
the authority to appoint, establish and organize the Police Department of and has
control of the government, administration, disposition and discipline of the Police
Department.
Prior to the creation of the Police Commissioner, the police department had been under
the control of a Board of Police Commissioners that dated back to the early 1900s. The
history of its creation can be gleaned from various Special Acts changing the Citys
original 1852 Charter at the turn of the century in the early 1900s as well as litigation
involving the changes dating back to the early 1900s.
Springfields original City Charter provided the mayor and aldermen shall have full
and exclusive power to appoint a constable and assistants, or a city marshal, and
assistants with the powers and duties of constables, and all other police officers, and the
same to remove at pleasure. St. 1852, p. 54, c. 94, 8.
This was changed in 1902. A Special Act of the state legislation, (St. 1902, p. 94, c. 134,
1), provided that the powers and duties conferred and imposed by the original city
charter in relation to the establishment and maintenance of a police department, the
appointment of a constable, or a city marshal and assistants, and all other police officers,
may be exercised and performed by the city council in such manner as it may from time
to time prescribe, and wholly or in part through the agency of any persons acting as a
board whom it may from time to time designate, and with such limitations of power as it
may by ordinance determine. That Special Act placed Executive Control in the City
Council.
Acting under the authority thus conferred, the City Council passed an ordinance in 1902
establishing a Police Commission. This ordinance was revised and re-enacted in 1904.

Acting under this Ordinance, the City Marshall was removed from office by the Board,
and the Department Head who was removed filed suit to challenge his removal. Stebbins
v. Police Commission of City of Springfield, 196 Mass. 365, 366 (1907).
In 1909 a new Special Act was approved by the state legislature in which the authority of
the Mayor and Alderman over the Police Department was vested in a Board of Police
Commissioners, with the City Council retaining the power to appoint. (St. 1909, c. 244,
1 and 2.) Later, the Board of Police Commissioners was codified by Ordinance.
The Plan A charter was adopted by the City of Springfield to be effective on the first
Monday of January, 1962; it superseded the charter of St.1852, c. 94 (as amended)
Kaczmarski v. Mayor of Springfield, 193 346 Mass. 432, 433 (1963). Under Plan A,
while the legislative powers of the city are vested in the City Council (See Charter
provisions in Mass. Gen. Law ch. 43, 50), the City Council is only authorized to elect
its president and the city clerk (Mass. Gen. Law ch. 43, 18, cl. 3) and there is no
express provision for election or appointment by it of any other municipal officer.
As previously noted, the plain language of the current City Charter provides that all
heads of departments and members of municipal boards shall be appointed by the
mayor without confirmation by the city council. (Mass. Gen. Law ch. 43, 52).
In direct conflict with express provisions of the City Charter, the amendment provides
that all appointments made by the Mayor must be confirmed by a majority vote of the
City Council before said appointment becomes effective and removes the authority of
the Mayor to appoint the day to day Department Head for the Police Department.
While the City Charter of 1852, as amended, contained conflicting provisions. The plain
language of the City Charter found in Massachusetts General Laws, Chapter 43, Section
11 adopted in the early 1960s provides that the Plan A Charter provisions shall
supersede the provisions not only of the prior charter, but also of the general and
special laws relating thereto and inconsistent. As such, the Plan A form of government
adopted by voters in 1962 supersedes the 1852 Charter as well as the Special Acts
amending that Charter which place executive authority in the City Council over the
Police Department and its Department Head.
That being said, the Charter Change to Plan A did not supersede the City Ordinances. As
such, the Board of Police Commissioners continued to exist, holding the powers of
appointment and removal of police officers, until changed by the Control Board.
Imposition of that Board now conflicts with the existing Charter.
Public Policy concerns - Civil Liability Concerns.
Overall, Springfield has had had a good track record in defending civil suits, but Springfield
has not been immune from the national trend of ever increasing amounts of money paid for
settlements and judgments in lawsuits involving the police. As evidence, I am attaching
tables published in the CPHB annual report.

The Control Boards implementation of a single professional Police Commissioner not


only modernized and professionalized the management of the second largest department
in the City, with over 500 employees and a budget of more than $40 Million, but it
increased accountability in accordance with the Burracker study which was conducted for
the implementing a more modernized, professional, and efficient Police Department.
Under the reorganization by the Control Board, the Police Commissioner is not a Civil
Service position, and reports directly to the Mayor under the terms of an employment
contract, consistent with the provisions of the Citys Plan A Charter.
Similarly, an additional study by experts was undertaken during the tenure of the Control
Board with regard to Civilian Oversight of the Police Department. That study, entitled
Enhancing Community Review of the Springfield Police Department, was prepared by
Professor Jack McDevitt and Amy Farrell, Ph.D. in April 2007. Professor McDevitt is the
director of Northeastern Universitys Institute on Race and Justice. Among his
credentials, Professor McDevitt has testified as an expert witness before the Judiciary
Committees of both U.S. Senate and The U.S. House of Representatives and as invited
expert at the White House.
The study was funded after enactment of the Police Commissioner Ordinance and in
conjunction with a complaint of police misconduct filed by the Springfield Pastors
Council with the Massachusetts Commission Against Discrimination after an incident
that occurred in November 2004 which was the subject of a lawsuit; Douglas Greer v.
Springfield, et al., 3:05-cv-30001-MAP. Springfield adopted a civilian review entity in
accordance with that study by means of an Executive Order by Mayor Charles Ryan
dated September 10, 2007 which created the Community Complaint Review Board.
Mayor Sarno revised that Board by Executive Order dated July 11, 2008. The history of
the Executive Orders shows that such reform efforts continued to expand. In 2010 Mayor
Sarno issued an Executive Order creating the Community Police Hearing Board (CPHB)
which was provided greater authority over complaints of misconduct.
The CPHB was involved in the case of Melvin Jones v. Jeffrey Ascher, et al., 3:10-cv30244-MAP involving an incident of misconduct alleged to have occurred in November
of 2009. In that case the past misconduct of officers alleged to be the basis for a claim
directly against the City based on the handling of prior complaints of misconduct by the
Board of Police Commissioners. The City moved for summary judgment on the claim,
but the motion was denied and the claim was allowed to go forward. It was eventually
settled out of court before trial.
At the time of the incident in the Greer case, as with the complaints forming the basis of
the claim against the City in the Melvin Jones case, the Police Department policymaking
was directed by the part-time, untrained, civilian volunteers who made up a Board of
Police Commissioners. That Board was replaced by a full time professional Police
Commissioner as a reform instituted by the Finance Control Board.
These various efforts of professionalizing management and implementing civilian review
and oversight of discipline documents that the City has responded appropriately to

complaints of misconduct, carried out with the assistance of criminal justice experts and
oversight from the Commonwealth of Massachusetts.
Over time, the CPHB has continued to evolve, including additional authority over
discipline and amendments to provide greater transparency, openness as well as
community outreach.
The proposed Board of Police Commission Ordinance does not contain any of the
safeguards established by the Mayors Executive Order with regard to assurances that
each and every civilian complaint will be reviewed; that each IIU investigation will be
reviewed for thoroughness; does not have any requirements pertaining to openness,
transparency as to the publication of an annual report or quarterly reports; and contains
no community outreach provisions that are established in the Executive Order and which
have been in the process of becoming institutionalized.
The Board of Police Commissioner Ordinance does not contain any provisions to assure
that its members will represent a cross section of the local community in background and
experience; does not require any training as hearing officers or in police procedures and
regulations; does not require maintenance or public dissemination of information as to
how and where to file, and the rights of the community in dealing with the police; does
not require the maintenance or dissemination as to statistics respecting the disciplinary
process. Unlike the provisions of the Executive Order, there is no requirement that the
Chair have any background or training in law.
Based on the review of the McDevitt study, a return to the old Board of Police
Commissioners does not comport with modern trends of organization and management of
police departments in major urban areas.
Although the Executive Order incorporates nationally accepted best practices for civilian
review, it should be considered only a starting point. The CPHB reflects much of what
other jurisdictions have found to be effective, but because some members of the
community in Springfield have expressed skepticism about the functioning of any
community Review Board, as noted in the Executive Order, the CPHB should be
reviewed as not a completed product.
As stated in the past, as officers increasingly confront violence and step up efforts to
apprehend suspects in the community, the chance of alleged unjustified force or other
misconduct increases. Furthermore, the costs of litigation and judgments increase. The
CPHB currently provides police oversight for Springfield that is the most representative,
has the fewest barriers to implementation and is the least expensive to the City. As a
result of the abolishment of the Police Commissioner Ordinance and replacement with a
Board of Police Commission as set forth in the Ordinance, the City risks greater civil
liability for rolling back reforms put in place contemporaneously with concerns over the
management of police officers in the Springfield Police Department with the guidance of
experts in the field.

Public Policy concerns Effective Crime Control.


The proposed Ordinance does not establish any priorities for the Police Department.
Under the current Police Commissioner Ordinance, John Barbieri has set forth the Police
Departments priorities which has been established in the budget narrative prepared by
his office and are aligned with the goals of the Mayor.
The Police Commissioners priorities include:

Neighborhood- based proactive patrols


Utilizing a staffing formula of 75% uniform patrol and 25% investigative division
and support
Enhanced Policing Strategies through Technology
Up to Date Law Enforcement Training

The reduction in crimes reported during his tenure has been significant. Under the
direction of Commissioner Barbieri, the Police Department has delivered double digit
percentage point drops in crime for 2014 and 2015, and we are poised to do the same for
2016. In 2014 the Police Department, under the direction of Commissioner Barbieri,
delivered a 14% drop in Part 1 crime which includes Murder, Rape, Robbery, Aggravated
Assault, Burglary, Larceny and Auto Theft. In 2015, the Police Department, under the
direction of Commissioner Barbieri, delivered an additional 10% drop in Part 1 crime. As
of November 30, 2016 the Springfield Police Department under the direction of Police
Commissioner Barbieri, is on pace to deliver another double digit drop of nearly 13%.
Additionally, in 2015 Springfield saw Part 1 crimes involving a gun drop 25%. During
this same time (2015) there were 304 incidents of assaults against our Police Officers
with 126 occurring during disturbance and domestic incidents. A total of 64 of the
assaults on our Police Officers involved a weapon and 240 involved Physical force.
During this same time period the Commissioner has worked within your administration to
diligently to increase the number of officers on the street, expanded the C-3 policing
effort, partnered with the Dispatch Director to overhaul an ageing radio system, and has
launched several technology projects aimed at enhancing the Departments ability to
deliver the very best service possible to our citizens, while keeping our men and women
of the Police Department safe. These include Crimeview Dashboard,
Crimereports.com and the Real Time Crime Analysis Center.
These statistics reflect an organization that is innovative and in the process of
implementing new ways to reach our goals.

Conclusions.
Springfield is going through enormous changes. The Springfield Police Department
needs to move forward to address the new issues it is likely to face with all of the new
economic development achievements that are occurring. It is not a time to rehash the
same political squabbles that occurred more than 100 years ago and it is not in the Citys
best interest to step back in time to return to a system that was, in the not so distant past,
called dysfunctional by experts in police administration. I hope that this memorandum
is helpful to you as you consider whether or not to exercise your veto authority.
Sincerely yours,

Edward M. Pikula
City Solicitor