Joun H. Firz-Grppon ATTORNEY AT LAW SUITE 207 90 GONZ STREET NORTHAMPTON, MA 01060 (is) 584-0600 FAX (418) 551-3486 March 19, 2018 ‘The Honorable Nicole LaChappelle, Mayor City of Easthampton 50 Payson Avenue Easthampton, MA. 01027 Joseph P. McCoy, President Easthampton City Council 50 Payson Avenue Easthampton, MA. 01027 RE: City position creation protocol Dear Mayor LaChappelle and Councilor McC |.am writing to you both in response to your requests for advisory opinions regarding the creation of a Chief of Staff position in the Mayor's office. | have reviewed the job description for the position of Chief of Staff that was posted on the city's website on February 20, 2028. | have also reviewed the Charter and the Administrative Code, and the history of various other city positions to determine whether they were covered by the Pay Plan established pursuant to the Code, or, ifnot, why such positions were not covered by the Plan. Let me answer the Mayor's question first. The Mayor asked: “Does the Mayor have the authority to appoint an assistant, called a Chief of Staff, who pursuant to the direction of the Mayor will interact with Department Heads and the City Council, be able to address citizen and City Council concerns, play a facilitating role in grant applications and implementation, oversees insurance programs and work in the areas of media and communication?" ‘The short answer to this question is yes, the Mayor has the ability to appoint a Chief of Staff. Section 3- 3 of the Home Rule Charter vests the authority to appoint all city officers, department heads and the members of multiple-member bodies in the Mayor, excepting only persons serving under the School Committee or reserved to the City Council by the Charter.Having said that, however, the Mayor's executive authority in this regard is as regulated by the Charter itself: Section 6-1(b) of the charter provides: “the Mayor, through the administrative code, and subject only to express prohibitions in a general law, for this charter, reorganize, consolidate or abolish any city agency’, in whole or in part; establish such new city agencies as is deemed necessary... “(Emphasis supplied). Counselor McCoy posed four questions regarding the position, which | will answer seriatim: 1, Under what conditions or rule of law can the Mayor create a subordinate position outside of the methods expressly delineated (in the) Easthampton Home Rule Charter. Specifically, is there a method that the Mayor can employ to create a Chief of Staff position in the City of Easthampton without either adding the position to the pay plan ordinance for seeking an ordinance specific to creating said position. | understand that the Mayor wants to appoint a Chief of Staff under 2 personal contract. The reason for, this, as | understand it, was the desire to avoid establishing a permanent position of Chief of Staff, creating instead a position that would serve the needs of the current Mayor, without tying future ‘Administrations to a Chief of Staff position. While | understand the Mayor's rezsoning, unfortunately | am unable to find anything in the Charter, as currently written, that would allow for such an arrangement. The Charter provides but two methods of establishing a new city agency’: either through an Ordinance or through the Administrative Code. Ordinarily, permanent positions not within the jurisdiction of the school committee, civil service, or under a collective bargaining agreement would be established within the pay plan. | have been informed that the Mayor views this job as more of a temporary arrangement, serving more or less at the will of ‘the Mayor. The pay plan was adopted pursuant to the provisions of G.L.c. 41 § 108A, which allows for ‘the classification of positions into groups performing similar work and having similar responsibilities. Our Charter adds in the requirement of a public hearing process, so that the position may be vetted by ‘the Council and the public. It is my opinion that the Charter demands this kind of public airing, particularly for a position of such responsibility and authority such as described in the Notice of Position Vacancy that was posted on February 20". It is true that, in the past, some positions in city were created via personal contracts, but those are the exceptions to the rule stated above. | will explain further about these contracts while addressing. Counselor McCoy's third question. * Section 1-7 of the Charter defines a “city agency” as any multiple member body, any department, division, or office ofthe city of Easthampton.” * For purposes of this opinion, | am assuming that the Chief of Staff position is fundamentally different from that of ‘Administrative Assistant, a position currently in the Pay Plan,2. Could... such position be created by (the) Administrative Code, and if so, am I correct that a public hearing would be required in the city Council would have to be either approved or not approve such an Administrative Code change? ‘As noted above, the Mayor has the authority to establish a new position through the Administrative Code. Section 6-1(b) of the Charter outlines the procedure for adopting an amendment to the ‘Administrative Code, which requires the City Council to hold one or more public hearings on the proposal by giving notice by publication in the local newspaper not less than 7 nor more than 14 days following the publication in the newspaper. Such a change would become effective after the expiration of 60 days following the date the proposal was submitted to the Council. The Council may vote to approve or disapprove the plan, but may not vote to amend or alter it. ‘The second method for amending the Code and the Pay Plan is through the adoption of an Ordinance by the City Council, along with the public processes involved in such procedures. 3. Isthe position as a “contract” employee “legal” in regards to the Charter and does the Council have confirmation responsibilities over such a position? We believe other contract positions. exist within Easthampton government will want to confirm that there were initially created by Administrative Code, Ordinance or Civil Service. Although not specifically set forth in the job posting, I'm believe that the Mayor has proposed such contract for this position. For the reasons stated above, | am of the opinion that the position may only be filled in compliance with the two methods described in the Charter. |lam aware that the city entered into four contracts” for positions in the police and fire department outside of the administrative code. The Fire Chief, the Deputy Chief, the Police Chief and a Police Captain are all employed by means of a contract. I'm informed that the Chiefs and Deputy Chief positions were originally civl service positions, which are not covered by the pay plan, and the contracts were entered into or continued when the positions were removed from civil service. itis not clear to me when these contracts were first entered into (it may well have been before Easthampton became a city) but they are matters of contract now and cannot be changed while the contract term is still running, ‘As for the position of Police Captain, it appears that position was first created in 2002. | attach hereto an. opinion from former City Solicitor (and now, District Attorney) David € Sullivan concerning the creation of the Police Captain position. Attorney Sullivan opined that pursuant to Mass. G.L.c. 41 § 97, this position could be created by the Mayor outside of the pay plan requiring no formal City Council approval. In addition, Attorney Sullivan’s reasoning, and the cited statute, may well equally apply to other positions in the police department, such as the chief. 5 | believe that | have approved of three of these contracts “as to Form,” although | was not asked, nor did | research, the validity of the underlying contracts themselves.During my research on this subject, | was informed that there were a number of positions that were not covered by the pay plan, and, with the help of the Personnel and Finance Directors, | reviewed a number of them. Some, like the position of the Arts Coordinator, were originally funded by means of a grant, and were listed as temporary workers since their position was contingent upon grant funding, That position was eventually brought into the Pay Plan. Others, like certain positions in the Parks and Recreation department (e.g. @ Poo! Manager, or Camp Director or Counselor) are seasonal employees and would not be covered by the Pay Plan. Having said that, however, it appears that the Administrative Code requirements may not have been followed in every case in the past, although that has since been corrected in a number of instances. A review of all such positions is beyond the scope of this opinion, but, in my view, that does not change my opinion in this matter. | don't believe that the City can be bound by any alleged “past practice” in determining whether an act or action is allowed by the express terms of the City Charter. The express language of the Charter is what governs the situation here. 4. Could such a Chief of Staff position have oversight/supervisory responsibilities over department. heads or is that supervisory authority reserved for/sole responsibility of the Mayor? Section 3-2 of the charter vests executive powers solely in the Mayor, but those powers may be ‘exercised by the Mayor either personally or through the several city agencies under the general supervision and control of the office of the Mayor. Since the position of Chief of Staff, if established, ‘would be another city agency is my opinion that certain mayoral powers could be delegated to the Chief of Staff, provided, however, that the ultimate authority and responsibility for any action would remain with the Mayor. In my opinion, however, that the ultimate formulation of public policy rests solely with the Mayor. Finally, | note that the job description posted on the city's website suggests that the Chief of Staff would act as a “deputy” Mayor who would assume the responsibility as “acting” mayor in the Mayor's short- term absence. The Charter, however, provides that after a 10 day absence of the Mayor, the President of the City Council shall be the acting mayor. These Charter provisions would take precedence over any contrary language in the job description of Chief of Staff. | hope that I've sufficiently answered your questions. If further information is needed or other concerns arise, however, please not hesitate to contact me. john H. Fitz-Gibbon City Solicitor Ce: City Clerk[WILLIAMS SMITH CLARK HOUSE LAW OFFICES OF SULLIVAN & HANCOCK, LLP 25 MAIN STREET EASTHAMPTON, MA 01027 ‘TL, (413) 527-1400 « FAX (413) 529-0107 1635, October 9, 2002 ‘Mayor Michael A. Tautznik 43 Main Street Easthampton, MA, 01027 RE: _ Establishment of a Police Captain Position Dear Mayor Tautznik: You have requested an opinion as to whether or not a formal City Council vote is required to establish a police captain position. In order to render an opinion, I have set forth some legal and factual background. Chief Sliz has proposed, with mayoral approval, to create a captain’s position within the police department, It has been proposed that this position be filled internally by promoting a sergeant to captain. It has een proposed that the captain position be non-union (management) and outside the City’s classification and pay plan. ‘The main issue is whether the Mayor may establish the position and its compensation outside of the pay plan. Ordinarily, permanent city positions not within the jurisdiction of the School Committee, civil service, or under a collective bargaining agreement would be established within the pay plan. It is my opinion that the town’s adoption of M.G.L.. 41 § 97 allows the Mayor to create such a position outside of the pay plan and no formal City Council approval is required. In 1974, the Town of Easthampton accepted M.G.Le. 41 § 97. MGLe. 41 § 97 provides in pertinent p: “In towns which accept this section or have accepted corresponding provisions of earlier laws there shall be a police department established under the direction of the selectmen, who shall appoint a chief of police and such other police officers as they deem necessary, and fix their compensation in the amount not in the aggregate exceeding the annual appropriation thereof.” ‘The adoption of the Home Rule Charter vested the Mayor with all executive powers of the Board of Selectman unless otherwise delegated or reserved within the Charter. The authority vested by M.G.Le. 41 § 97 specifically authorizes the Mayor to appointment police officers as deemed necessary. The 1974 Town Meeting adopted this statute at the same time it established a Deputy Police Chief position. In 1981, the Board of Selectman exercised its executive powers and voted to abolish the Deputy Chief position. The former Board of Selectman were within their right to take such action based upon the EMAIL: lew@eulivanhancock com AMID B. SULLIVAN ‘CATHERINE M. HANOOGKOctober 9, 2002 Page 2 authority granted fo them under 41 § 97. Likewise, the statute now gives the Mayor the authority to establish a captain position in the police department. Furthermore, the creation of a captain position would not constitute a reorganization of the police department under Charter Section 6-1. Although no formal vote is required to create this position, the City Council retains the power to approve or disapprove appropriations for this position in future fiscal years. If this position is to be permanently funded, the City Council, Police Chief, and Mayor will need to jointly collaborate on this matter. Ifyou have any questions or concems please do not hesitate to contact me. Sincerely, Attorney at Law DES\spg ce: City Clerk Councilor Daniel Rist City Council