A communication transmitted from Louis A. DePasquale, City Manager, relative to a response regarding the City Council having its own budget for outside legal research

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai , ANTIQVIS City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Brian A. Schwartz Deputy City Solicitor Diane O. Pires Megan B. Bayer Public Records Access Officer First Assistant City Solicitor Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 June 7, 2021 Louis A. DePasquale City Manager 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Policy Order O-4 of April 12, 2021 regarding the City Council having its own budget for outside legal research Dear Mr. DePasquale: This is in response to the above-referenced Policy Order which was adopted by the City Council at its May 3, 2021 meeting. The Policy Order requests: "That the City Manager... include in the FY22 City Council budget a line item for outside legal research that shall be utilized at the discretion of the City Council when designated by a majority of members of the Council in pursuance of the City Council's authority to exercise the legislative powers of the City in drafting ordinances via an order that is voted upon in public at a scheduled City Council meeting:" and "That the City Manager... work with the City Council to determine the precise amount of the budget line item... ahead of the City Council's vote on the FY22 budget." As you know, I submitted a detailed legal opinion dated April 26, 2021 to the City Council regarding this issue, which detailed the serious concerns I have with the City Council's assertion that it is legally entitled to have its own attorney separate from the City Solicitor, based upon the City's Plan E Charter and other legal concerns. Municipalities in Massachusetts have two "basic" branches: legislative and executive. See, e.g., Boston City Council v. Menino, No. CIV.A. 0-1267, 2000 WL 744356, *4 n. 5 (Mass. Super. Ct. May 9, 2000) citing King v. Mayor of Quincy, 270 Mass. 185, 188(1930) and Daly v. Mayor of Medford, 241 Mass. 336, 338 (1922). The head of the "executive branch" of a municipal government is the "chief executive officer." See, e.g., Opinion of the Justices, 429 Mass. 1201, 1207 (1999). The "chief executive officer" of a municipal government with a Plan TTY/TTD [phone removed] Facsimile [phone removed] Telephone [phone removed]

E charter is the city manager. See, e.g., Quinlan v. City of Cambridge, 320 Mass. 124, 126 (1946). Thus, the City's government, under its Plan E charter, has two branches; the legislative branch (which in Cambridge consists of the City Council) and the executive branch (which in Cambridge is headed by the City Manager). Pursuant to G. L. c. 43, § 29, "all contracts made by any department, board or commission where the amount involved is five thousand dollars or more shall be in writing, and no such contract shall be deemed to have been made or executed until the approval... of the city manager under Plan D or E, and also of the officer or the head of the department or of the chairman of the board, as the case may be, making the contract is affixed thereto." G. L. c. 43, § 29. Thus, as a matter of law, the City Manager and the City Solicitor as the head of the Law Department would be required to sign any agreement for outside counsel services where the amount of the contract exceeds $5,000. Furthermore, under the Statute of Frauds, G. L. c. 259, 8 1, a contract must be in writing in order for it to be legally enforceable unless performance of the agreement is to be completed within one year of the making of the contract. Thus, any contract for legal services for less than $5,000 must be in writing in order to be legally enforceable unless all of the requirements in the agreement may be performed within one year from the making of the contract. In addition, the City Manager, as the "chief executive officer" of the City and City Solicitor, who is required to draft all legal instruments for the City, must approve all City contracts. Therefore, any agreement for outside counsel services must be in writing and must be approved and signed by both the City Manager and the City Solicitor, and indeed, the City Council does not have the legal authority under the City's Charter to enter into contracts for outside legal services without the approval of the City Manager and City Solicitor. In addition to the requirements in G. L. c. 43, § 29, where the City Solicitor is the attorney for all City departments, boards, commissioners, and officers, including the City Council, the City Solicitor would be required to sign any agreement for outside counsel services to be provided to any department of the City in order for the agreement to be valid, and furthermore, any outside counsel performing legal services for the City Council would report to the City Solicitor. The contents of my April 26 legal opinion raised similar points to a letter submitted by the Mayor of the City of Newton to the Newton City Council on May 17, 2019 in that city on the very same topic. In addition, a similar issue has been raised both in the City of Somerville and the City of Waltham, and the Law Departments in those cities opined that the authority to hire outside counsel rests with the executives of those Cities, i.e., the Mayors, and not the City Councils. Additionally, at the April 26, 2021 meeting, Councilors referenced three other municipalities as examples where city councils have retained outside counsel services. One such municipality was Methuen. However, we have been informed that Methuen's City Council has not hired outside legal counsel to provide separate legal representation for the City Council. Rather, pursuant to the City of Methuen Charter, the City Solicitor is hired by the City Council, and not by the executive branch of that city, and the Methuen City Council decided to hire outside counsel to work on some complex matters that the city is dealing with, not to work exclusively on City Council matters, which in any event is a decision that the Methuen City 2

Council is authorized to make pursuant to the Methuen charter. Another municipality that was discussed at the April 26 Council meeting is Newburyport, a city where the City Solicitor is appointed by the Mayor. The current Mayor of Newburyport, as authorized by the Newburyport charter, has appointed a law firm to serve as counsel to the city rather than having an in-house city solicitor position. We have been informed with respect to that city that in the last few years, the question of whether the Newburyport City Council could pass an ordinance that requires the City Council to approve of the City Solicitor appointment arose and the Newburyport City Solicitor was quoted in the news media stating that such an ordinance would raise issues with respect to the Charter. Finally, as discussed at some length in my April 26 Opinion, the issue of separate legal counsel for the legislative branch of municipal government has come up in the City of Boston and resulted in protracted litigation between the Mayor and the City Council that made its way to the Appeals Court; the Appeals Court held that: "The duties proposed for legal counsel to the council, as described, would overlap significantly and thereby interfere materially with those that are presently reserved exclusively to corporation counsel. Counsel to the council would be responsible, among other things, for providing legal advice on matters relating to council business, reviewing and furnishing opinions on draft legislation, and representing the council in legal proceedings. These responsibilities would duplicate those already assigned to corporation counsel under CBC § 5-8.1, insofar as that section calls upon corporation counsel to advise the divisions of the city on legal matters and to represent them in disputes. Based upon the language of the council's order purporting to establish the new position, we conclude that, as matter of law, the addition of the challenged position of "counsel for the city council" would constitute a reorganization of the office of corporation counsel. Such a reorganization can only occur with the joint approval of the mayor and the council, and the mayor accordingly enjoys veto power over the creation of such a position. City Council of Boston v. Mayor of Boston, 58 Mass. App. Ct. 542, 545 (2003.) The Appeals Court thus affirmed the Superior Court's decision holding that the Boston City Council did not have the authority under that City's charter to retain legal counsel absent the Mayor's (who is the executive in the City of Boston) approval to hire such a person. Similarly, and as noted in my April 26 Opinion, in the City of Cambridge, the City Manager, as the executive under the City's Charter, would have to approve the hiring of outside counsel and as noted above, the City Solicitor would also have to review and approve any contract for outside legal services, and any outside counsel would have to report to the City Solicitor who is the attorney for all City departments. In addition to the cities referenced above which have reached the same conclusion that the authority to hire outside counsel rests with the executives of those cities, we have had another attorney who practices municipal law review this issue and provide an opinion. This opinion was provided by Attorney Mark R. Reich from the firm KP Law, P.C., Which represents many municipalities in the state. Attorney Reich's opinion is attached and opines that "consistent with

the prior opinions of the City Solicitor, in my opinion, the City Council does not have authority under the Charter or Code to appoint or pay for separate counsel without the recommendation of the City Solicitor and the approval of the City Manager." Notwithstanding my legal opinion that the City Council does not have the legal authority to hire its own legal counsel, to appropriate funds with which to do so, or to enter into a contract with outside legal counsel, I did propose in the legal opinion a staffing solution within the Law Department to address the City Council's concerns with obtaining faster updates about work in progress and establishing timelines for receiving responses. However, as the Policy Order requests "outside legal research" when voted by a majority of the Council, while I continue to have concerns about this approach to the City's legal work, the outline of such an arrangement could be as follows. The City Council could vote by majority vote at a public meeting on a specific detailed request asking the City Manager to request that the City Solicitor retain outside legal counsel for research on a particular issue or for assistance with drafting a specific piece of legislation. An outside private attorney could then be retained by contract through the City Solicitor (as all outside counsels doing work for the City are) to perform the legal research or legislative drafting requested by the City Council's vote. Any outside counsel's work product on completion would be submitted to the City Solicitor's office, and through the City Solicitor to the City Council. Very truly yours, Nancy E. Glowa City Solicitor Enclosures