Pittsfield committee debates whether charter revision required over solicitor issue

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PITTSFIELD — Mayor Linda M. Tyer won a recommendation Monday in favor of a proposed ordinance change that would allow appointment of either a person or a law firm as city solicitor, but not before a lengthy debate over whether a charter change also would be required.

The mayor said her request, which ultimately was recommended to the City Council on a 4-1 vote of the Ordinance and Rules Committee, was part of a six-month review she is conducting to determine whether to hire a law firm or go back to a single attorney as solicitor.

Tyer earlier this year received permission to hire on an interim basis Donovan & O'Connor, with attorney Richard Dohoney as lead attorney, to handle legal services for Pittsfield.

She said she asked for the ordinance change because language in the charter seemed unclear whether a law firm, rather than a person, could be hired in the solicitor's role.

The solicitor's office was unstaffed after Solicitor Kathleen Degnan was not retained when the Tyer administration took office in January, and former Assistant Solicitor Darren Lee resigned shortly after Tyer defeated former Mayor Daniel L. Bianchi in the November election.

Tyer told committee members she had consulted with Fernand Dupere, an attorney who has represented the city in employee contract negotiations, on the proposed ordinance change. Dupere said Monday that having a law firm act as town counsel or city solicitor is common across Massachusetts, with a number of firms, such as Kopelman & Paige, specializing in municipal law and working with several communities.

He recommended designating a single attorney within a firm as city solicitor, which has been the case with Dohoney, but retaining the entire firm so that a variety of legal expertise is available to the city.

However, committee Chairwoman Melissa Mazzeo, who earlier voted at the council level against the interim appointment of Donovan & O'Connor through the end of the current fiscal year, said she remains convinced the city charter approved by voters in 2013 specifies that a person should be appointed as solicitor.

"I have spoken to the mayor about this, and she knows we have to agree to disagree," Mazzeo said.

She said she called the state Attorney General's Office to ask whether a charter change is required and was told the matter should be referred to the city solicitor, adding, "but we can't in this case," because that office is involved in the issue.

Mazzeo said she next spoke with three former city Charter Review Study Committee members, William Barry and Michael McCarthy, both lawyers, and former Judge Edward Lapointe, who headed the study group, and they agreed with her interpretation.

"They agreed with me every step of the way," Mazzeo said, referring to a need to change the charter — a more lengthy process that requires submitting a request for a special bill to the Legislature.

Barry also provided Mazzeo with a written discussion of the issue, which she submitted to the committee members.

"I think we need a charter change, not just a code change," she said, adding that there are a few language errors that have been noted in the charter, which could all be corrected at the same time.

Asked by committee members to comment further, Dupere said that, based on his experience representing municipal entities in Massachusetts, the practice of naming a firm as solicitor is common and, to his mind, a good way to ensure the right legal expertise is available when required.

A lack of specialization in all areas of the law "is the problem with hiring a single person as solicitor," he said.

Committee member John Krol said the need for varied expertise showed clearly in the city's hiring of attorney Mark Bobrowski, of Concord, to handle the successful defense in Massachusetts Land Court of the council's 2013 rejection of a drive-thru permit for a Dunkin' Donuts on First Street.

"That showed how important it is to have good representation," he said.

Dupere also said he was asked by the mayor to give his opinion on the ordinance proposal but was not offering a formal legal opinion on the issue. He said that was something the city should obtain from a firm not associated with the city.

Tyer said she has not made up her mind whether to hire a law firm next fiscal year or hire a single person as solicitor. She said her preference — if legally possible — would be to simultaneously seek proposals from law firms for services and applications for solicitor.

Committee members Peter White and Donna Todd Rivers indicated they would like there to be some clarification of the charter issue before they reach a final decision, but both agreed to recommended passage to the full council after Krol and Tyer suggested continuing the ordinance process while more research is done into the charter issue.

"We need to fully vet that," Krol said, but added he doesn't believe a charter change will prove necessary.

The committee voted 4-1 to recommend, with Mazzeo opposed.

Tyer said she hopes to have the issues settled by May to allow her to post requests for proposals and/or hiring requests in time for her to hire legal representation before the July 1 start of fiscal 2017.

Contact Jim Therrien at 413-496-6247.


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