WESTFIELD – At its last meeting on January 18, the City Council voted to table a motion from the Legislative & Ordinance committee to repeal Westfield’s sex offender ordinance on the advice of the Law Department, which advised the Council that the state’s Supreme Judicial Court has ruled that no municipality can impose a residency requirement that goes above and beyond the state’s Sex Offender Registry.
Ward Two Councilor Ralph J. Figy
On resubmitting the motion, Ward 2 Councilor Ralph J. Figy, who chairs the L&O sub-committee, said the Legal Department has “washed its hands of it. (They) are leaving it up to us to decide what to do with this.” He said he had two memos from the department which outlined the unconstitutionality of the city’s ordinance. He said a lot of concerns were addressed by tabling the motion for two weeks.
At-Large Councilor Dan Allie said he agreed with Figy. He sent a letter to Rep. John Velis and Senator Don Humason, requesting them both to sponsor legislation which would strengthen the existing ordinance to include parole for first-time offenders and longer sentences for repeat offenders.
“Having a false sense of security is as dangerous as any danger we face,” Allie said. Speaking about the high recidivism rate of offenders, he said the state is currently heading in the wrong direction by looking to reduce sentences.
Ward 5 Councilor Robert A. Paul, Sr. said he was glad the state legislators have decided to address the issue. “I will continue to abstain until the state legislature looks at it,” Paul said about the vote to repeal.
“I’m not going to vote on this either. It’s been on the board for several years. They’ve just decided for now it’s not appropriate. There is very little exposure here,” said At-Large Councilor Dave Flaherty, referring to the suggestion at the last meeting that Councilors who do not vote to repeal the local ordinance risk losing their indemnification. “I’m not inclined to make it easier for anybody. There is some selective choice here. Courts change their minds here. Look at Cross St. We went to three different courts. There is no reason to take action on this tonight,” he added.
“I’m not fully convinced that it’s a state issue, though; I think it’s a federal issue. Our state Representative Richard Neal should be heard on this,” said At-Large Councilor Brent B. Bean, II. He also said the offenders have questionable morals. “If they hear there is an illegal ordinance on the books, don’t be surprised if someone takes advantage of this,” he added.
Ward 3 Councilor Andrew K. Surprise (WNG File Photo)
Ward 3 Councilor Andrew K. Surprise said he agreed that it’s a federal issue and not a state issue. “At the same time, we need to look at what other cities and towns have done, and form a federal lawsuit,” he suggested. He said the city restricts businesses by saying they can’t sell liquor near a school, and individuals by saying they can’t smoke near a building. “If this (the repeal) doesn’t pass, I would suggest adding an amendment to the ordinance asking the police not to enforce it,” Surprise added.
Figy repeated that the ruling came from the State Supreme Court. “You can’t pick and choose what orders (to follow). I don’t believe we can tell the Police Department what to enforce and not enforce,” he said.
“I don’t think instructing the Police Department not to enforce something is the way to go. Either you keep it on the books and enforce it, or take it off the books. We can’t give people that false sense of security,” said At-Large Councilor Matt Emmershy.
At-large City Councilor David Flaherty
“This wasn’t a decision by the courts that we had to rescind this,” Flaherty said. He said the ordinance is similar to the CORI check, which says If you have an inappropriate background, you’re not eligible to work with kids. “To me, very similar to saying you can’t live in this particular house. I agree with Surprise, let them work things out. I don’t see any benefit in getting rid of this tonight,” he added.
“This boils down to this ordinance is illegal. That to me says whether you like it or don’t like it… if you don’t vote to repeal it, you are supporting an illegal ordinance,” said At-large Councilor Cindy C. Harris.
Ward 1 Councilor Mary Ann Babinski said she thought that the Legal Department was going to speak to the City Council at the meeting, and asked whether the ordinance on the books is being enforced. No one responded.
“I don’t want to belittle the weight or importance of the issue. If we rescind this because of the Law Department, the next step is to work real hard at the state or federal level. I think that’s what people are looking for,” Babinski said, adding, “You’re dammed if you do, damned if you don’t. I don’t think it ends if you vote to rescind this now. Make a commitment. At this point, I would follow the legal advice.”
At-Large City Councilor Dan Allie
Allie said the court is not likely to change its position. Reading from the fourteenth amendment, he said no person or city can add to the sentence of a crime after other sentences have been served. He said the residency requirements are considered ex post facto punishment, which according to the law is unconstitutional.
“There’s a document from the Legal Department. It’s the advice of the office,” said Paul, reading excerpts such as “monetary damage that may be possible; given that the court has ruled; most likely bring some civil rights challenge; in case, it might, it appears.” He said it was not a hard legal opinion of any sort.
The motion was moved and a roll call vote for the first reading was taken. The motion to repeal passed 10-3, with Flaherty, Paul and Surprise voting no, and was moved to a second and final reading at the next City Council meeting.
