The City Council Finance Committee will recommend Thursday that the full council approve a $40,000 appropriation to pay the legal expenses of Mayor Daniel M. Knapik.
The vote came after a 40 minute discussion of the appropriation request submitted by City Council President Christopher Keefe in his capacity as Acting Mayor.
Knapik is being sued in federal court for allegedly violating the civil rights of At-large City Councilor David Flaherty, Municipal Light Board member Jane C. Wensley and David Costa, a resident of Russell who is the owner of property at 38 East Silver St. The suit, brought by the western Massachusetts chapter of the American Civil Liberties Union (ACLU), contends that Knapik violated the civil rights of the litigants by ordering the removal of campaign signs of Flaherty and Wensley from Costa’s property.
The court documents were released by Flaherty on March 21, but Knapik was not officially served until Thursday, April 5, through his private attorney, Michael Powers. Knapik has 60 days to respond to the suit.
Much of the discussion last night pertained to the process of the appropriation being submitted to the City Council which narrowly defeated a motion made by Finance Chairman Richard E. Onofrey Jr. at the council’s April 5 meeting for immediate consideration of the $40,000 appropriation to fund Knapik’s legal fees.
Ward 4 Councilor Mary O’Connell and At-large Councilor Agma Sweeney both strongly objected to the April 5 motion for immediate consideration and requested the support of other councilors to send the appropriation to the Finance Committee for further discussion.
Onofrey said last night that the appropriation request originally came from the Law Department, based upon city ordinance, Section II, paragraph 2-64 which pertains to indemnification of municipal officers. That section of city ordinance reads:
Sec. 2-64. – Indemnification of certain officers.
(a)
The city shall indemnify and save harmless members of the city council, members of elected or appointed boards and commissions, the mayor, all department heads including but not limited to superintendents, directors, auditor, treasurer/collector, city solicitor, managers, and their respective assistants, and the superintendent of schools, from personal financial loss and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000.00 arising out of any claim, action, award, compromise, settlement or judgement by reason of an intentional tort or by reason of any act or omission which constitutes a violation of the civil rights of any person under federal or state law; if such aforementioned official or employee at the time of such intentional tort or act or omission was acting within the scope of his official duties or employment; provided, however, that such aforementioned official or employee shall provide reasonable cooperation to the city in the negotiation, investigation and defense of any claim or action brought as a result of such intentional tort or act or omission. No such aforementioned official or employee shall be indemnified under this section for violation of any civil rights if he acted intentionally or in a grossly negligent, willful or malicious manner.
(b)
The defense and/or settlement of any such claim shall be undertaken or negotiated by the city solicitor, his agent or designee. However, if the city solicitor determines that a conflict of interest has arisen or is likely to arise by his mutual defense of the city and the officer(s) or employees in question, the officer(s) or employees in question shall not be defended by the city solicitor, his agent or designee, but shall seek outside counsel for such defense. The expense incurred by the official or the employee for outside counsel shall be borne by the city unless the mayor and/or the city council shall deem such legal fees to be unreasonable, in which event such legal fees shall be subject to the fee arbitration procedure of the Massachusetts Bar Association.
(c)
Nothing in this section shall be deemed to limit the effect of any indemnification statute applicable to the city at the time of any such intentional tort or act or omission. This section shall apply to any settlement or judgement made in compliance with this section on or after the date this section is approved.
Susan Phillips, Law Department supervisor, said last night that she sent Keefe a request through City Clerk Karen Fanion to sponsor the appropriation request. Typically all appropriation requests come from the mayor,” Phillips said, but in this issue Knapik could not submit the request because of a conflict of interest as defined in state law.
Phillips said the funding, if approved by the council Thursday night, will be used to retain outside attorneys because the suit involved both the mayor and a City Council member, both of whom rely on the Law Department for legal opinions and services.
Onofrey said that if a federal court jury finds that Knapik in fact “actively violated the civil rights” of the plaintiffs, Knapik will have to refund “whatever funds expended” in his defense.
Phillips said the suit is an allegation.
“It will be up to the court to determine if he acted in his official capacity (as mayor) or not,” Phillips said. “If the jury comes back and says his actions were willful and intentional Knapik may be responsible for paying his own legal fees. The (Massachusetts) Supreme Court standard if punitive damages are awarded to the plaintiffs.”
“The decision (to indemnify a city official) is made by my office,” Phillips said, adding that she consulted with other staff members and other municipal attorneys before making that decision.
Phillips said that because the case involves one city official suing another city official it creates a conflict within the Law Department.
“The plaintiff may need the services of my department, an opinion as a member of the City Council and it would be a conflict,” Phillips said. “I could not provide services to the councilor in some matters if I was representing the mayor (in the federal suit).”
Keefe said that city employees have sued the city to secure legal services in the past under the city’s indemnification ordinance.
O’Connell questioned the process by which Keefe could serve as acting mayor to request the funding.
Phillips said that city charter and state law allow the council president to act in his acting mayor capacity if the mayor is unable to serve because of death, physical disability, or absence.
“In this incidence the disability is that the mayor has a conflict of interest,” Phillips said.
O’Connell also questions paragraph C of the ordinance that allows the City Council to deny indemnification protection to Knapik.
Onofrey said that the ordinance is clear on that point.
“I’m looking at the ordinance,” he said. “It says the city shall, not the city may. We have no choice, we need to fund his defense. This is something to be decided by the court, not the City Council or a mob with pitchforks.”
“We can’t make the determination that this was a willful intent to violate someone’s civil rights,” Onofrey said.
Ward 6 Councilor Christopher Crean, a member of the Finance Committee, agreed with Onofrey’s assessment.
“You have him guilty before it’s proven,” Crean said. “It’s our job to adhere to a rule made before I was born.
At-large Councilor Brian Sullivan, the deciding vote in the 6-7 defeat of the immediate consideration motion said he changed his vote “because a couple of people wanted it to go to committee (for further discussion). I was prepared to approve (the immediate consideration motion) because I read the ordinance.”
The motion to provide a positive recommendation was then approved by a 2-0 vote. Flaherty, also a Finance Committee member, did not attend the committee meeting.
“The solicitor’s investigation determined that the order to remove signs from the ‘tree belt’ was lawful, ” Knapik commented, prior to last night’s meeting. “The city ordinance is clear that in cases when city officers, board or commission members act appropriately in their position the city must pay for their defense. A series if signs were placed in the right of way, and posed a hazard to pedestrians and motorists. The city’s temporary sign ordinance prohibits the placement of signs on city property and prohibits the placement of signs so as to impede visibility.”
