A television show that depicted the way government in Worcester works would fail. Viewers wouldn’t find the show believable.
A circus that began in May reignited during last week’s meeting on Oct. 15. This Tuesday, it will go to an all-new level of absurdity.
The Worcester City Council has not caused this circus. The current administration imposed it on them. City council has no one to blame but itself.
For those interested in the historical background of the concepts discussed here, you can find a section called “Basic Civics” at the bottom of this page. That section gives background on the following points:
- A city charter is the foundational document that establishes city government, much like the federal or a state constitution. State law requires every municipality to have one;
- The Worcester City Charter defines “an executive branch headed by a city manager, and a legislative branch to consist of a city council.”
- Branches of government are a critical principle in the U.S. constitution (1788), and the Massachusetts Constitution (1780);
- Branches of government are intended to be co-equal and independent, with one never acting with the power of any other;
- Cities in Massachusetts have two branches, an administrative or executive branch that operates the government, and a city council which is a legislature responsible for creating laws (called ordinances at the local level). Towns operate with only one branch.
Rule 11
How can the city council be at fault for something imposed on them?
Because they allow it.
Like any legislature, the city council creates its own rules for its internal operations. Rule 11 of the city council rules says:
“No petition, paper, order, communication or report of any description which deals with personalities, or with matters not within the general supervision and/or relating to city government, or does not specifically state the business to be discussed, shall be placed on any city council agenda by the city clerk. The city clerk, with the assistance of the city solicitor, shall determine when an item is not appropriate for placement on the city council agenda.”
The city solicitor is the head of the law department, which reports to the city manager in the executive branch. The city manager hires and can fire the solicitor without cause. The city manager is the head of the executive branch and the solicitor is part of the city manager’s cabinet.
There can only be one conclusion: the solicitor represents the executive branch.
The solicitor has an ethical obligation to represent his client, which is the city manager’s administration. It would be unethical, and a fireable offense, for the administration’s lawyer to take a position that contradicts the position of the city manager’s administration. His job is to craft legal arguments in the interests of his client. He is a lawyer, not a judge.
Both administration and city council officials attempt to portray the solicitor as pulling double duty, representing both the administration and the council, which is absurd.
The city solicitor does not represent the city council. That leaves city council, the sole elected representatives of the people of Worcester, without access to legal advice, and instead deferring to the administration.
That’s not representation. It is capitulation, which the city council is now paying for.
The Cable Advisory Members Circus
The Cable Television Advisory Committee, a group of unpaid volunteers appointed by the city manager, was tasked with reviewing the cable television franchise agreement between the city and Charter-Spectrum, the only cable television provider in Worcester. That contract originally ended on Oct. 31, 2023, but extended for a year.
In March, with the unanimous support of its members, the committee issued its report that detailed several ways that it found Charter-Spectrum violated the agreement. The report recommended the city manager issue a denial of renewal.
Federal law governs the franchise agreement process and entitles providers to renewal, unless the city demonstrates the provider violated the contract. Denial does not throw them out of the city. It begins a federal process to review the contract, at a cost the provider pays for.
In May, without notice to the city council or the members of the committee, the city manager’s office published a blog post where it said, in part:
“The City could deny Charter Spectrum’s license agreement, but we would have to enter into lengthy legal proceedings. If we won, we would leave cable subscribers without any option in the city and lose funding for PEG Channels and Cable Services in Worcester.”
The regulations around these agreements make it nearly impossible for a city to eject a provider. There is no plausible scenario in which Charter-Spectrum does not operate in the city. However, the denial process would require the company to comply fully with the last contract before renewal.
All but one member of the advisory committee resigned in response.
Two of its members filed a city council petition that sought councilors to vote to support the advisory committee’s recommendations.
Using Rule 11, the city solicitor denied the petition and prohibited it from the council’s agenda.
The response provided to the petitioners on Friday, May 10, cited the U.S. Supreme Court decision in 2006, Garcetti v. Ceballos. In that case, the court decided that a government employee was not wrongfully terminated for actions an employee took as part of their official duties.
While the case is relevant, the administration simply created the ability to prevent that speech from happening out of thin air.
During the city council meeting the following Tuesday, Traynor’s reasoning appeared to have changed.
Traynor did not mention the Ceballos case and provided no justification for preemptively prohibiting a citizen from petitioning their local government. As the petitioners had already resigned from the commission, the administration had no recourse. You can’t fire people that already quit.
The reality of this situation is obvious. Charter-Spectrum is seriously unpopular in Worcester. A city councilor seen as voting to support the company is a tough vote to take for an elected official. City council voting against the city manager’s position is not in the administration’s interest.
To avoid that potential, the administration’s attorney crafted a legal argument in the administration’s interest. That’s his job. He’s not at fault.
The city council’s willingness to allow its independence to be compromised is the sole cause.
The Petition Loophole
On Tuesday, Oct. 15, the circus was back in town.
On that night’s city council agenda, a petition by members of the Worcester Republican City Committee appeared as follows:
“request City Council request City Manager request City Solicitor draft documentation required to amend the City Charter to require candidates beginning with the Municipal Election in 2025 to be a citizen of the United States of America to be eligible to hold elected office in the city. Further, request said amendment include language requiring any candidate not born in or within the jurisdiction of the United States, but has become a naturalized citizen by the time signature papers are due for that year’s election, submit naturalization papers or other legal documents as proof of citizenship to the City Clerk’s Office and any other necessary office or department relative thereto. Failure to submit such authenticated documents shall make the candidate ineligible for local elected office in the city.”
This Week in Worcester previously reported on the problems with this petition. The short version is quite simple. The 14th Amendment to the U.S. Constitution prohibits different classes of citizens. There are citizens of the United States and there are non-citizens. That’s it.
In Worcester, a candidate for public office must be a registered voter and only citizens can register to vote.
Creating requirements for only immigrants who became citizens is plainly unconstitutional.
I have given a great deal of thought to a possible motive of the administration to have this resolution on the agenda. I’ve got nothing. It was never going to pass. No councilor was going to vote for this. It is clearly well outside the jurisdiction of the city council. Charter changes require approval of the state legislature, which would never approve this. Even if the legislature approved, it would never make it through a lawsuit.
It just makes no sense.
This resolution achieved two hours of public comments, with the vast majority of speakers repudiating the petition.
Here is how the solicitor explained his decision to allow it on the agenda:
So there you go. You can ask the city council to do any ridiculous thing you’d like, as long as you request it via charter change. That’s apparently the new standard. Welcome to pandora’s box.
And on the city council agenda for Tuesday, Oct. 22, what do we have?
“request City Council request City Manager request City Solicitor draft documentation required to amend the City Charter to require employees of the law department have a basic comprehension and familiarity with constitutional law. Further, request said amendment include language requiring any employee who does not have a basic comprehension and familiarity with constitutional law submit papers or other legal documents as proof. Failure to submit such authenticated documents shall make the candidate ineligible for employment in the law department.”
Don’t blame the petitioner. City council allows this nonsense by insisting on compromising its independence. Council should expect results like this when you go to someone else’s lawyer because you refuse to hire your own.
It’s not what is on the agenda that is the real controversy coming Tuesday, but another rejection.
The Purview of Convenience
Rule 11 of the Worcester City Council rules makes no differentiation between a petition, paper, order, communication or report. All item types are subject to Rule 11.
On Oct. 15, a coalition of faith-based groups, including Christian, Muslim and Jewish groups, submitted a petition it sought to be placed on the city council agenda. It asks the council to take up a resolution calling for a ceasefire in the current war in Gaza. Several other cities have passed similar resolutions.
Citing Rule 11, the city clerk’s office rejected the petition. When the petitioner sought clarification, the clerk’s office said that city council asked for more stringent enforcement of Rule 11 on Oct. 15, the date of the last meeting.
That may seem reasonable, as the resolution clearly addresses an issue outside the council’s purview. However, the resolution submitted mentions in its very first line this resolution taken up by and passed by city council on Oct. 17, 2023,:
“That the City Council of the City of Worcester does hereby condemn the recent barbaric and inhuman taking of hostages in Israel, including a number of American citizens, and prays for their immediate and safe release and return to their loved ones.”
After a number of statements, the proposed resolution concludes with:
“BE IT RESOLVED that the City Council of Worcester calls on the US government to facilitate and demand:
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- An immediate and permanent ceasefire to end the violence
- Immediate releasee of hostages and detainees on all sides
- Immediate resumption of the delivery of humanitarian aid to Gaza unhindered
- Enforcement of US laws, including the Leahy Law of 1997, the Conventional Arms Transfer Policy, and the Arms Export Control Act, which would halt US weapon sales and transfers to Israeli that makes us accomplices to the present mass slaughter of innocents.”
You can disagree with the petition, but denying it a vote when the council has already acted related to the issues wholly defies its own precedent. City council rules should not have definitions that change with political expediency. When the rules haven’t changed, precedent should define them. If it wishes to change its rules in the next session, after 2025 elections, that is within its rights.
This is plainly a content-based decision and viewpoint discrimination.
Allergic to Power
The members of the Worcester City Council collectively represent every resident in this city. A representative body that won’t fight for its own rights can’t possibly fight for the people it represents. Its independence from the executive is a critical component in its ability to act as a check on executive power.
Yet it appears wholly uninterested in its own power, making it a unicorn in the world of electoral politics.
I have spent more time than your average bear studying both international issues related to government and politics, and national issues, before turning my focus to Worcester over the last few years.
I have never seen, heard of, or imagined a group of elected officials absolutely terrified at the prospect of using their own power more than this city council.
It must stop.
Basic Civics
In the United States, reverence for those called the founding fathers nearly deifies them. They were not deities, but were, like all humans, flawed men. The most glaring example is that many owned slaves. Law doesn’t create morality. Slavery was never moral, regardless of its legal status.
Despite their flaws, these men were among the most educated men on the planet in the latter part of the 1700s. Many had developed an expertise in political systems, political philosophy, and governing systems that put them in a category rarely matched anywhere in the world during their lives. Among the spectrum of expertise they had, John Adams sat among an elite group at the top.
In 1778, voters in Massachusetts rejected a proposal for the state’s first constitution. The campaign against it cited multiple issues, not least of which was failing to include a separation of powers statement. Adams was assigned to an overseas post during the drafting of the first version. He became the primary drafter of the second version put before voters.
Article 30 of the state constitution says:
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them.”
Massachusetts voters ratified the second version, written primarily by Adams, in 1780.
The Massachusetts Constitution became heavily influential in the crafting of the U.S. Constitution, ratified in 1788.
Today, we know the executive, legislative, and judicial departments, as they called them then, as the branches of government. The concept of co-equal, independent branches of government is in high school level curriculum.
Application to Cities and Towns
Massachusetts state law requires every municipality in the state to have a charter, which is similar to a constitution for a city. It acts as the foundational document that establishes government and defines the role of its most important pieces.
State law provides two sets of options, one set for cities, and another for towns.
Towns with an elected board of selectmen operate as a single branch of government. The elected board is the executive body, and the town manager leads the operation of government, reporting to the select board.
Cities operate with two branches of government. An executive branch, responsible for the operations of city government headed by an elected mayor or, in Worcester and other cities, an appointed city manager. A city council, responsible for the lawmaking function of city government, is the legislative branch.
In September 2022, reorganization of the Worcester School Committee required a change to Article Four of the Worcester charter. The rest of the document hasn’t changed since 1984.
Article One, Section Three, of the Worcester Charter, titled “Distribution of Powers,” says:
“The administration of the fiscal, prudential and municipal affairs of the city of Worcester, with the government thereof, shall be vested in an executive branch headed by a city manager, and a legislative branch to consist of a city council.”
Framingham, the most recent municipality in Massachusetts to convert from a town to a city in 2017, included in its city charter, in Article One, Section Three, also titled “Division of Powers,” much the same statement, except they have an elected mayor. They also added another sentence: “The legislative branch shall never exercise any executive power, and the executive branch shall never exercise any legislative power.”
Branches of government have a history in America that pre-dates the formation of the United States. Its connotation is explicit, specific, and intentional.
Worcester actively defies this American principle.
