Monday, February 07, 2011

Spiraling in on Home Rule

Yet another federal judge tells Chuck Turner no. Behind today's call by First U.S. District Court Chief Judge Mark L. Wolf remains the big home rule issue.

Turner and his pro-bono attorney Chester Darling seem to survive on ego and attention. Their suit demanded that Turner get his Boston City Council seat back following his ouster by his peers two months ago, precipitated by his conviction on four corruption related felonies.

Underneath, this remains about the inane MA implementation of home rule. That requires municipalities to beg the legislature for any variance to their charter, no matter how minor or how obvious, with a rewrite of the charter each time.

On the surface, this is allegedly about the tragic injustice to Turner in tossing him from Council before the state law kicked in when he was sentenced to three years in federal prison last month. Turner sought to be reinstated pending sentencing, get paid as Councilor, and get verification that the Council did not have the right to remove him.

Along the way, the collateral damage would be to the residents of District 7. Turner wanted to push out the special election to replace him (probably about two months). This of course would ensure that constituents do not have a Councilor to represent them.

Today, Wolf most obviously noted that the issue of staying in office became moot on January 25th. A single day of prison time forces an elected official from office by MA law.

However, we may yet get a resolution on the home-rule aspect. Wolf referred the questions related to Turner's ouster to the MA Supreme Judicial Court. He deferred the question of Turner's pay for that six or seven weeks until the state court decides. He noted that the federal level was not the right one for the suit's demands.

So, the SJC could rule that the Council overstepped its authority. In that case, the likely result for Turner would be pay for that period.

It seems more likely that because the Council had followed its procedures, the city charter as interpreted by the Councilors and the city counsel, it was acting lawfully. At issue is the picayune parsing of the explicitness of the charter and Council rules. The Council is empowered to decide who is qualified to serve in addition to being allowed to make its own rules and procedures. It also passed a rule (unanimously including Turner) that mandated a fitness-to-serve hearing when a member is convicted of a felony. Turner, Darling, and Turner friend Councilor Charles Yancey contend that because the rule did not use the exact term remove or expel, the Council was powerless to act.

However, this rule 40A is pretty explicit:
Rule 40A. Pursuant to the city charter and in accordance with the open meeting law, the council president may refer a matter to the council upon his/her determination that any member has engaged in conduct unbecoming a member of the Boston City Council or may be unqualified to sit on the body. A member may be unqualified by violating federal or state law, or any conditions imposed by the city’s charter, which includes violating any provisions of the three oaths of office.
The council president shall automatically refer a matter to the council upon a felony conviction of any member by any state or federal court.
Any action by the council taken in response to any referral shall require a two-thirds (2/3) majority roll call vote and will be in accordance with local, state and federal law.
This likely calls for clarification under the reasonable person (historically reasonable man) principle. Outside of tax codes, damned few laws are so precise that some bozo can't pick and parse. Many lawyers do just that for a living.

In this case though, it would seem pretty unreasonable to assume anything other than what the rest of Council and their counsel did.

I would like to see the SJC decide that the Council had acted lawfully. I would love the General Court to revisit the archaic home-rule process. The legislature needs to stop wasting their time and our resources making cities and towns crawl to them for minutiae.

Sure, preclude any local decisions that commit commonwealth funds or conflict with its laws. Otherwise, let's be adult here. The mayors, city managers, councils and such need to continue to inform the commonwealth of their decisions, particularly those they are apt to call "laws." Unless there's a conflict with MA laws or resources, we'd all be better off without the theatrics and begging.


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