A communication transmitted from Louis A. DePasquale, City Manager, relative to Calendar Item Number 2 dated November 2, 2020, which requested draft ordinance language to prohibit the use of tear gas in Cambridge

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman Samuel A. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 January 6, 2021 Louis A. DePasquale City Manager City of Cambridge 795 Massachusetts Avenue, City Hall Cambridge, Massachusetts 02139 Re: Whether the City Council Has the Authority to Adopt an Ordinance that Prohibits the Cambridge Police Department from Using Certain Weapons Dear Mr. DePasquale: 1. INTRODUCTION This legal opinion is written in response to the question whether the City Council of the City of Cambridge (the "City") has the legal authority to adopt an ordinance that prohibits officers of the Cambridge Police Department (the "Police Department" or the "Department") from using certain weapons. As outlined in detail below, I am of the opinion that such an ordinance would violate the City's Plan E Municipal Charter, and in addition, would likely be held to be invalid if challenged in court as presenting a sharp conflict with the general laws of this Commonwealth. II. LEGAL ANALYSIS A. The City's Plan E Charter An ordinance dictating that officers of the Police Department may not carry specified weapons would likely be held to be invalid by a court as a violation of the City's Plan E Charter, since as the chief administrative officer of the City, it is within the City Manager's purview to determine how to equip officers of the Department. Under the City's Plan E Charter, specifically, G. L. c. 43, § 104 ("Section 104"), "... except as otherwise specifically provided in this chapter, it shall be the duty of the city manager to act as chief conservator of the peace within the city; to supervise the administration of the affairs of the city; to see that within the city TTY/TTD [phone removed] Facsimile (617) 349-4/34 Telephone [phone removed]

the laws of the commonwealth and the ordinances, resolutions and regulations of the city council are faithfully executed; and to make such recommendations to the city council concerning the affairs of the city as may to him seem desirable; to make reports to the city council from time to time upon the affairs of the city; and to keep the city council fully advised of the city's financial condition and its future needs...." G. L. c. 43, § 104. Section 104 further provides that "... the city manager shall have and possess, and shall exercise, all the powers, rights and duties, other than legislative, had, possessed or exercised, immediately prior to the adoption of this plan, by the mayor, board of aldermen, common council and all other boards, commissions and committees of the city and their members, severally or collectively, except such as are by this chapter conferred upon the school committee or are otherwise provided for thereby..." Id. ... the city council shall appoint a city manager... who Moreover, under G. L. c. 43, $ 103: " shall be the chief administrative officer of the city and shall be responsible for the administration of all departments, commissions, boards and officers of the city, whether established before its adoption of this plan or thereafter ...." G. L. c. 43, § 103. In Chief of Police of Medford v. City Manager of Medford, the Appeals Court reviewed the powers and authorities of Medford's city manager and police chief under a Plan E Charter. Chief of Police of Medford, 11 Mass. App. Ct. 415 (1981). The Court noted that under a Plan E Charter, the city manager has " broad powers as chief administrative officer of the city" and that the city manager has "broad authority... to set general policy to be carried out by the chief [of police] and to supervise and control his actions." Id. at 420-421 citing Allen v. Cambridge, 316 Mass. 351, 353 (1944). B. The Home Rule Amendment and the Home Rule Procedures Act An ordinance regulating the type of weaponry used by the Police Department would likely also be held to be invalid under the Home Rule Amendment to the Constitution of the Commonwealth (Art. 89, the Home Rule Amendment, II, § 6) (the "Home Rule Amendment") based on a conflict with G. L. c. 41, 8 98 ("Section 98). The Home Rule Amendment provides at Section 6 "Governmental Powers of Cities and Towns" thereof that "any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with the powers reserved to the general court by section 8..." See Art. 89, § 6 of the amendments to the Massachusetts Constitution; see also Bloom v. Worcester, 363 Mass. 136, 145 (1973). Similar to the Home Rule Amendment, Section 13 G. L. c. 43B (the "Home Rule Procedures Act") ("Section 13") provides that " ... nothing in this section shall be construed to permit any city or town, by ordinance or by-law, to exercise any power or function which is inconsistent with any general law enacted by the general court before November eighth, nineteen hundred and sixty-six which applies alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two...." Bloom, 363 Mass. at 145 citing G. L. c. 43B, § 13. The Supreme Judicial Court has stated that "... we interpret that language in Section 13 as stating, in a backhanded way, that the exercise of municipal legislative authority under Section 13 of the Home Rule Procedures Act may not properly involve the exercise of any power or function which is inconsistent with any pre-Home Rule Amendment general law." Id. at 151. Page 2 of 5

"Legislation which deals with a subject comprehensively, describing (perhaps among other things) what municipalities can and cannot do, may reasonably be inferred as intended to preclude the exercise of any local power or function on the same subject because otherwise the legislative purpose of that statute would be frustrated." Id. at 155. "A conclusion that the Legislature intended to preempt a subject may also be inferred it the Legislature has explicitly limited the manner in which cities and towns may act on that subject." Id. at 156. G. L. c. 41, § 98 provides, in relevant part, that: The chief and other police officers of all cities and towns shall have all the powers and duties of constables except serving and executing civil process. They shall suppress and prevent all disturbances and disorder. They may carry within the commonwealth such weapons as the chief of police or the board or officer having control of the police in a city or town shall determine.... An ordinance dictating what weaponry Cambridge police officers may carry would conflict with the provisions of Section 98, which confers upon the chief of police and all other police officers of the City the same powers and duties as constables, except serving and executing warrants. In addition, because the City Manager, as the chief administrative officer of the City and the appointing authority of the police commissioner, is the "officer having control of the police" in the City, an ordinance dictating weaponry would conflict with Section 98 which states that "they may carry... such weapons as the chief of police or the board or officer having control of the police ... shall determine." Finally, such an ordinance would also frustrate the legislative purpose of Section 98 which provides that police officers shall "suppress and prevent all disturbances and disorder." Therefore, an ordinance prescribing the type of weapons that Cambridge police officers use would likely be held to be invalid as both a violation of the City's Plan E Charter, and further, void as presenting a sharp conflict with and frustrating the purpose of, a general law of the Commonwealth. C. Massachusetts Assault Weapons Ban G. L. c. 140, 88 121-131y is a comprehensive State legislation which outlines the manner in which licenses to carry firearms may be issued, the term of such licenses, and conditions which must be placed on such licenses. State law prohibits the sale, transfer, or possession of assault weapons, as defined in G. L. c. 140, § 121, under G. L. c. 140, 8§ 128 and 131M, however, the Legislature exempted police officers from the assault weapons restrictions in G. L. c. 140, 88 121 et seq., and, in doing so signaled its intention not to include police officers as a category of individuals prohibited from possessing assault weapons in this Commonwealth. As a result, an ordinance, the effect of which is to prohibit possession of such weapons by police officers would thwart the legislative intent in enacting G. L. c. 140, § 121 et seq. and would likely also be held to be invalid as inconsistent or presenting a sharp conflict with the State's gun control laws. Page 3 of 5

D. Collective Bargaining Requirements An ordinance dictating the type of weaponry that is currently in use by officers of the Police Department could be found to be a matter that is subject to mandatory collective bargaining under G. L. c. 150E, $§ 6 and 10(a)(5). G. L. c. 150E, § 6 provides, in part, that "the employer and the exclusive representative shall meet at reasonable times, including meetings in advance of the employer's budget-making process and shall negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment, including without limitation, in the case of teaching personnel employed by a school committee, class size and workload, but such obligation shall not compel either party to agree to a proposal or make a concession." G. L. c. 150E, § 6. G. L. c. 150E, § 10(a) provides that: "it shall be a prohibited practice for a public employer or its designated representative to ... (5) refuse to bargain collectively in good faith with the exclusive representative as required in section six ...." G. L. c. 150E, § 10(a)(5). In City of Boston v. Boston Police Patrolmen's Association, Inc., the Supreme Judicial Court noted that "...if a managerial decision has impact upon or affects a mandatory topic of bargaining, negotiation over the impact is required ...." Boston Police Patrolmen's Association, Inc., 403 Mass. 680, 685(1989) citing School Committee. of Newton v. Labor Relations Commission, 388 Mass. 557, 564-567, (1983). "In instances where a negotiation requirement would unduly impinge on a public employer's freedom to perform its public functions, G. L. c. 150E, § 6 does not mandate bargaining over a decision directly affecting the employment relationship." Town of Dracut v. Dracut Firefighters Union, IAF Local 2586, 97 Mass. App. Ct. 374, 378-379 (2020) citing Local 346, International Brotherhood of Police Officers v. Labor Relations Commission, 391 Mass. 429, 437 (1984). "The inquiry has been directed towards defining the boundary between subjects that by statute, by tradition, or by common sense must be reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process." Id. at 379 citing Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172, 178-179 (1997). "The crucial factor in determining whether a given issue is a mandatory subject of bargaining [i.e., non- delegable], is whether resolution of the issue at the bargaining table is deemed to conflict with perceived requirements of public policy." Id. citing Greenbaum, The Scope of Mandatory Bargaining Under Massachusetts Public Sector Labor Relations Law, 72 Mass. L. Rev. 102, 103 (1987). The principle of non-delegability extends only so far as is necessary to preserve the public employer's discretion to carry out its statutory mandates and the public policy favoring collective bargaining. Id. at 379-380. "The scope of a governmental employer's non-delegable authority depends on 'the explicitness of the statutory authorization under which [that] employer acts."" Id. at 380 citing Board of Higher Education v. Commonwealth Employment Relations Board, 483 Mass. 310, 319 (2019). "Where ... the employer acts ' under the authority of a statute or law authorizing the employer to perform a specific, narrow function or, alternatively, acts with reference to a statute specific in purpose that would be undermined if the employer's freedom of action were compromised by the collective bargaining process,' we will not enforce a conflicting provision in a collective bargaining agreement." Id. Page 4 of 5

Therefore, an ordinance which restricts the use of equipment already in use by the Police Department without bargaining as to the impact of such a restriction, might run afoul of and be held to be invalid as conflicting with and frustrating the purposes of G. L. c. 150E. III. CONCLUSION. For the reasons set forth above, I am of the opinion that the authority to dictate what weapons are used by Cambridge police officers when carrying out their official duties, under the City's Plan E Charter and its Home Rule powers, rests with the City Manager and not the City Council; that future changes in weapons and equipment already in use by the Police Department would likely be subject to collective bargaining as to the impact of such changes; and that an ordinance restricting police officers from carrying assault weapons would thus be invalid as inconsistent with or frustrating the purposes of State law. Very truly yours, City Solicitor Page 5 of 5