Left In Lowell

Several things struck me tonight as I busily typed my notes. First, Councilors, please stop being so defensive. “This” or “that” was said here or there, “it’s unfair” - look, guys, that’s a very unsophisticated way of dealing with the media and your constituants. You look like whiners. So take all the personal privledges you want and make all the prepared speeches you want; but the council meeting is not the place for you to defend yourself in your reelection campaign; write an op-ed or hey, email me and I’ll post your rant on this blog. Go on the radio. But please don’t make the meetings any longer then strictly necessary. Please have mercy on me.

I mean seriously, so many of the councilors seem overly defensive, or is it just me? It’s like they want to preempt criticism…well, I have news for you…you took the job…part of that is being the public face of the city. And I feel like sometimes, they sit there and whine that they’re being blamed for something outside of their control (Stoklosa School anyone?) that should be in their control or at least overseen by them somehow. Stop it. If you don’t like the way the city is managed…well, you shouldn’t give the City Manager a top-level rating at his review, should you? Show some backbone. Take control. You are the City Councilors.

OK, my own rant aside (hey, this is my bully pulpit, kids) there was another funny thing. The councilors were considering a rare Executive Session (closed-door) to discuss the issues surrounding the Stoklosa School construction. The parallels aren’t really strong comparing this with Reid’s move in the Senate today to have closed sessions to talk about the Iraq intell, while the councilors are just worried about pending legislation (and again, we at home are smart enough to understand the need for a closed session, stop being so defensive!). I just thought the coincidence was hilarious. Closed sessions everywhere! National security and all that! That one is just funny ha-ha. (Not funny weird or funny something-smells-fishy.)

So anyway, below the click you’ll find my typical unreadable notes and commentary.

CITY CLERK’S OFFICE
OCTOBER 28, 2005 2:21 PM

LOWELL CITY COUNCIL
REGULAR MEETING
TUESDAY NOVEMBER 1, 2005
TIME 6:30 PM

CITY CLERK
Minutes of October 25th for acceptance.

UNFINISHED BUSINESS
AD/HOC Sub/Committee Stoklosa Construction recommendation to go into Executive Session.
Elliot: ask solicitor: consensus to do this in public, are there problems?
A. Mercier: Can decide later or now
Elliot: later
Discussion postponed for last in meeting

CITY MANAGER
Communication-From Planning Board, Recommendations on Zoning Amendments.
A. Mercier: Some zoning amendments proposed, 5 – 0 vote from Planning Board [I think planning Board] to recommend to City Council [for adoption].
Motion to accept and put recommendation on file?
[voice vote, yes]
Motion to refer to public hearing Nov 22
Milinazzo: these are important amendments, would become retroactive to the day they were published, very valid changes in zoning. Be in favor of sending to public hearing
Roll call on motion: [unanimous] yes
Elliot: have any other permits been issued under old laws? It came to my attention a permit was issued for across the street.
Cox: I don’t know.
A. Mercier: When this was first proposed and sent to Planning Board, that is the effective date for these amendments.

$50,000 Law Dept. physician public safety officers from Mgr. Contingency.
Roll call: [unanimous] yes

Communication-Approval (2) Out of State Travel.
Roll call: [unanimous] yes

A. Mercier: We did receive tonight indemnification policy report from solicitor’s office; I didn’t know anyone wanted to take any action tonight.
Cox: I can make this quick. There was good news last week; hearing, legal fees were reduced. Report lays out her opinion on the matter, heard council all last week, will take steps necessary to indemnify officers. Councilors made it clear in this case what they wanted us to do and we’ll do it.
A. Mercier: Send this issue to subcomm, has ways and means to be developed.
Caulfield: Should have some policy in place for the police dept to know when they go out they won’t have a cloud of intimidation over their heads.
Cox: Last week there were technical things going on, final decision from courts were not in, everyone knew we were leaning towards indemnification, police officers shouldn’t feel they aren’t supported, we respect them. But we have to look at them on case-by-case basis, clearly this will be resolved.
Howe: not sure we need subcomm, police officer makes arrest, then sued in civil court, then decision is against them, as long as officer is not in violation of anything, we should reimburse him.
A. Mercier: 4 officers from last week will be indemnified
Donoghue: we should take this as case by case basis, clearly in this case there shouldn’t be a question. Agree you have to look at case by case.
Elliot: apparent that will be what the policy will be, but it seems like opinion that this does indemnify them, doesn’t specifically states civil rights, is that what we’re going to look at?
Solicitor: No employee ever faces any problem with negligence coverage
Elliot: Does section 8 cover these officers at this point, provided they’ve done their job haven’t placed city in jeopardy an so on.
Solicitor: Section 13 is where police officers are covered, just mandatory indemnity, upon a filing of civil rights violation, is not covered under #13.
Elliot: There is still section 9.
Solicitor: If you fall under 13, you are afforded all rights under 13, with one exception. When you look at 9, if you’re covered under 13 you can’t be covered under section 9 (they are not intended to be in conjunction of one another). [explains differences]
Elliot: the more we talk about it the more confused I get. What policy should be put in place to deal with this? We did make it clear we want to support the officers. Just looking for some guidance.
Cox: This is a gray area in some ways, some things addressed in one section and not other, but I think there’s one way we can go – on a case by case basis. Obviously officers shouldn’t be concerned when they go out in the field but we can’t just say we indemnify you under all circumstances. We must look ay these by case-by-case basis. Jury can find something, like in this case; we were surprised jury found anything. I don’t think there’s any way we can sit here and say we can indemnify in every case. Maybe the law dept can get info from SJC as to these things. Clearly there’s a leaning towards indemnification, and I think that’s the right opinion. Maybe we request an opinion.
Martin: I’m not sure we understand this fully; I see there’s one class of claims where they are covered, some they are not, and some in the middle. I think this needs further work from the council. I think we can be a lot clearer, frankly I think the union people here want some clarity here. I would move that we adopt the position of the manger in this case and indemnify these four, but that we also work on it further.
Motion: Indemnify these 4 officers, then to Personnel Subcomm for further policy discussion. [Passes]

REPORTS (Sub/Committee if any)
Caulfield: Not a report, but wanted to remind the neighborhood orgs, that the neighborhood traffic committee will meet tomorrow night

Milinazzo: At 5:30 Economic/Development Subcomm: Based on the motion by Howe on plan for Mass Mills. There was the issue of fire access, decided to get together in 60 days, city is about to award River Walk contract, what comes out of those discussion, as relates to Phase III of Mass Mills. We can certainly use another 152 units of housing in that area. Company (Mullins) was first to do housing in downtown and is an excellent landlord. Hopefully we can move things along.
Howe: I was compelled to make motion that Economic/Development Subcomm look at this issue because I concluded developer was receiving a lot of static and procrastination and he did not deserve that type of treatment. Was first developer to look at city of Lowell and settled on Mass Mill and developed a project that is still the best project in the city, covers the most as far as opportunities average citizen has received, in the decent quality of living available. I felt it was the #1 responsibility of city to assist Mr. Mullins towards completion of that project. Came down to two buildings; one he wanted to have torn down, Parks Service does not want it torn down. I think Parks Service should take a back seat. I strongly suggest this council make this project work and bring it to successful conclusion.
Milinazzo: Just want to mention: Economic/Development Subcomm meeting on 9th [?]; wondering if we could get update on Lachoules (?) property.
Cox: don’t have agreement as yet, but making some process
Donoghue: Just to follow up on Milinazzo’s question: going on and doing 21E testing, no answer on that?
Cox: No
Donoghue: We are also looking for the tax history for Mr. Lachoules, if we can get that info as soon as possible. Subcomm has been extraordinarily patient on this, has been months and months and months.
Cox: We are trying to move, councilor
Donoghue: Not faulting admin, but I believe we did pay for property [not sure I caught that right], but clock is running, money going out the door, I think we fish or cut bait. If we can have an answer.
Cox: We are further along, councilor.
Donoghue: All I’m saying is that we talk about the substance; I’m looking for critical part, held up for months, not faulting anyone in admin for that at all, difficulties and all, but looking at time that has passed, will that info be in packet with some clear indication? Maybe there won’t be an answer but we will have
Elliot: Follow up on Howe’s motion on Mass Mills, I also filed a motion. It’s got to be similar to Appleton, environmental issues, safety issues, but in the meantime we shouldn’t put all eggs in one basket, then where are we? We have buildings over there, dilapidated, this city is totally committed to historic preservation. It seems like time is right to let them know we’re serious, to make this economically viable, we have to do something, it’s been 15 years.
A. Mercier: Based on report of Subcomm, there’s things being done, but slow, will probably have something on this soon.
Martin: I agree with a lot of sentiment on both projects, I think RE Mass Mills only possible new thing is new uses proposed for buildings along river. I think if we don’t see any realistic hope for progress council should take action, we need to be serious about helping get this done. Makes sense 60 days wait until we hear what is proposed RE river walk, owe it to Park Service to have bite of this apple. These are two major economic developments on either end of downtown, need to keep people on short lease, council needs to be heard on these projects.
Caulfield: Howe indicated in 1989 when project brought forward, city council then supported Mr. Mullins immensely. City did go to bat with Mr. Mullins. And this admin and this council supports him. But what I heard tonight is you can’t have a historic building for decades, they will crumble, you have to demolish one to preserve the other one and I hope something is done.

[Here is part of the reason for my rant about whining at the beginning, if you must know, just as an aside!]
R. Mercier: I’d like to take some personal privilege: RE statement that we didn’t need a gang summit to know we have a problem with gangs; many people came to table to offer solutions. Here in Lowell we find solutions. Next question, do we or do we not have a gang unit [in the police dept] here? I brought this up when the gang unit was dissolved, made a motion to get gang unit back. We have the Community Response Team, doing the same job as gang unit; this same team made over 100 gang related arrests. Maybe wording is not what is expected, but goals are same. I’m very satisfied with the way this is set up.
Donoghue: First, we know Mercier would never have false advertising. People in police dept who work with gangs, when they say no one is doing work with gangs it’s not true.
Elliot: Agree: Chief’s here, let him speak.
Chief: The Community Response Team is dedicated to nothing but gang dealings. For last three years done exclusively gang work. Name works better with our idea of community policing.
Caulfield: clarity here, if someone calls to ask if they can speak to gang unit, they need to say we have it under other name, explain it.
Chief: Reporting concentrated on another aspect of the political things than the reality of the policing things.

PETITIONS
Conduit loc.-Mass. Electric Co. req. conduit location in Pawtucket Blvd.
Refer to public hearing Nov 15th [Passed]

Claims-1 claim property damage
Referred to Law Dept [Passed]

MOTIONS
C. Elliott-Req. Mgr. explain employee contributions of United Way payroll deductions.
Elliot: This came to us via candidate forums. Employees used to be able to check off sending a donation from their paycheck to the United Way; this is no longer case, are they still allowed?
Cox: This stopped some time ago, hoped to be able to quickly replace that with local charities, it’s much more complicated than I thought it would be. We’re at the stage of getting a campaign manager, someone to manage the money coming in. Had to go through a process, AG’s office, need a list of local Lowell nonprofits and charities. But we are going to have something in place.
Motion voted answered [voice vote]

C. Elliott-Req. updated finances report from Auditor-Free Cash, Assessor’s-Revaluation & Manager-Budget Related Items re:Setting Tax Rate.
Elliot: I know it’s a long motion dealing directly with tax rate; can you tell us where we are at, people are concerned. People want to know what is the tax rate. Some will say it’s because the election, but my position has always been consistent. Always estimated the two quarters so people can plan.
Cox: I wish we could councilor, I know that it’s election year and I think the pressure is unfair, but I did some research on when tax rate was set in past.
[Cox reads the dates for last two f–ing decades where the tax rate has been set in December…drone, drone, drone]
I don’t think for members of council should stand for it, assessments are not tax rates and the radio guy had it wrong. That’s only the first part of whole setup. People suggesting we’re hiding something, we’re not. [Defensive holy mackerel!]
That’s not going to change, we have nothing to hide with assessments, we have nothing to hide with tax rates, can’t tell you on tax rates, I don’t know. Think it’s unfair that somehow because it’s election year it should be different.
A. Mercier: We do have the reevaluation numbers.
Elliot: I guess I don’t agree that because it’s done that way ever year, it should be done that way. By Sept 30th, we should have our books in order. While I agree there’s nothing to hide, I think people would like to know up front. If we didn’t use free cash on a regular basis we should be able to set it even earlier, we should move away from that, but in June 30 books are closed.
Cox: I don’t disagree, but as you know this is a city with huge budget, auditors office does fabulous job, but I would bet that larger cities like us are in the same boat, smaller towns have a much easier time doing it. I wish we could set the rate earlier too. That’s when we have to do it.
R. Mercier: I heard that Cambridge already did it.
Cox: I think I know who told you that, they also told you Chief had credit card [or I heard something like this] [councilors laughing]
Elliot: Can I follow up on free cash, is it growing?
Auditor: amount I estimated a few weeks ago hasn’t increased or decreased.

Elliot: Just want to request a suspension on the rules to talk about the canal articles in paper.
[Rules suspended]
I think you said it right, I think it’s a fiasco, we’ve received calls, filed motions, to take action, volunteers are in place to clean them and then are told not to. Slap in face of council and city and admin.
Cox: TJ has been working with group of volunteers, we continue to work with them, we are disgusted with owners, want them in my office to tell me what their plans for cleanup; if we don’t get answers, to get Congressman to work on fed leg to get something done.
A. Mercier: Failure to comply is against health and safety regs, I think we should apply part of that motion.
Elliot: Maybe it is a motion, to get health dept to enforce health code, assessing violations and fines. First thing people downtown notice is the canals, the garbage is visible, is one of the first complaints.
Donoghue: The kind of epitomize absentee landlord problem. I’m wondering whether its federal, or locally, can pass ordinance, whether we can require semi annual cleaning. I remember growing up in Holyoke, canals were drained twice a year and cleaned. Have to clean these things. Maybe depending on what happens with your meeting Mr. Manager, we have to see if there’s something we need to do.
Martin: Suggestion: suspect federal permit to operate permit comes up for regular renewal; that might be an opportunity for regulations.

Unfinished Business: Ad hoc Exec session on Stoklosa School.
Motion: Caulfield: Is there any way we can discuss this at public forum
Cox: some things we can talk about publicly, some things we can’t since if we’re seeking litigation, we can’t discuss strategy for litigation.
A. Mercier: start public, then solicitor can inform us if something violates that and we can refer that to exec session.
Cox: the major points of our litigation should not be discussed.
Howe: My understanding tonight’s meeting relates to settlement between city and Jackson over classroom issue; prefer it be out in the open, this is after the fact subject matter. People ought to be entitled to know why Lowell in May of this year paid [?] $290K [?] when they were far from completing their contract and were in midst of being in breach on contract.
A. Mercier: need to talk to solicitor because as I understand it the $290K affects future litigation.
Howe: Have not gotten all docs, need to get communications between parties. Docs will say a lot more than you or I can say.
A. Mercier: I thought we were looking for explanation of that payment?
Caulfield: I think the crux of matter is three classrooms, who requested those classrooms be deleted? I personally don’t want to endanger the city in any litigation.
Howe: call to Bud’s attention: Oct 29 2003 memo proposed request by architect.
A. Mercier: There’s a story to that that might endanger future litigation. You look like you’re interested in blaming someone
Howe: not looking for blame but if someone did something we need to hold them accountable.
Martin: Howe asked why that settlement payment was made.
Cox: year ago, public info, Sept Oct, when I became aware three classrooms taken out, there was an attempt at value engineering, in that process, three classrooms taken out. Council agreed to put $1M back in to get those classrooms back in. Oct 13th of last year, article in paper talked about how the book was closed on case of missing classrooms. Says in paper that I said $400K was cost of classrooms out of that $1M.
Howe: There’s one publication you didn’t mention, 2001 [? I think he meant 2003]. You said that you did not know that the three classrooms were deleted.
[arguing about getting letter about deletion of three classrooms between Cox and Howe]
A. Mercier: You two can argue all night, let’s get back to motion.
Milinazzo: Everyone knows we’re in tough situation, solicitor recommending to send this to exec session.
Change order #5, we did just get this evening, where it does talk about the elimination of the classroom, with VOID on it.
Cox: We did the value engineering, we knew they were doing it, I wish I had come back and just said we’re short $1.2M, but I tried to save money. DRA trying to get $600K credit, but Jackson never signed it, I never signed it.
Why would we end up settling it?
Cox: I think that’s where we need to go into exec session.
Solicitor: I think it’s clear that issues with Jackson spill over with DRA. With respect to change orders, there was a change order for deletion of classrooms; essentially, I have a number of docs, including all construction docs; I can tell you, all of construction docs from the very beginning were all stamped approved buy architect as eliminating these classrooms. With respect to change orders, there were a number that went back and forth on these classrooms. There was a dispute in regards to price. I believe the ones you’re talking about were at $200-[something]K. The ones by contractor, the way they come up with price is that tere’s an outside person to evaluate cost. The other doc of significance, issuance of CCD. Signed by arch and Mr. Sousa, as owner, ordering classrooms to be eliminated. This was later on in process. Most of the building already taken place. I cant tell you definitively that claims will be against DRA. Jackson also has claims against DRA. My recommendation is for exec session to preserve exec privilege.
Donoghue: Concerned about first I knew about settlement was when we were at Stoklosa school last week. The Subcomm sitting on issue for well over a year, issue came up about classrooms, We were short on bid by 1.2M, we knew that, we knew that we wouldn’t save enough with value engineering. One of the thigns that was my impression being on suvcomm, didn’t agree who was going to be responsible for the cost. I remember specifically we ebing told we were reserving all rights so that the city’s protected, not waiving anything by this. All knew that there would be litigation someday. My problem is that we didn’t know about settlement. I’m not saying it was the wrong decision, but I don’t know. Payment was made, that’s over and done with, we have no say in it, we have no notice of it ether, I don’t know how Subcomm was out of the loop.
Cox: I can explain it but not here. We settle matters like this all the time. I can only give you piecemeal here. I can’t make sense of it to you in public.
Elliot: What was the 290K settlement for? What was the [original] bid for this contract
Auditor: Contract was for $17M for the school.
Elliot: we have expenses to date, we need what the contract was for originally?
What was the settlement for, the $290K?
Cox: for Jackson to build in the three classrooms, that’s what it’s for.
We were short 1.2M, we hoped value engineering would take care of it, it clearly was a failure and didn’t. To put the classrooms in, told it would be 340K, I said, was quoted in the paper as saying $400K. As we went through process, came back it was $290K.
Elliot: where did the balance between the 290K and the rest?
Cox: Don’t remember exactly, went to other things.
[discussion on Retainage, payments pending, etc. Couldn’t follow it all, plus my wrists were killing me!]
Elliot: no one authorized from the city that the classrooms come out.
Cox: You get getting very very close, and to my mind it’s simple, but if we go in the other room I can explain.
Caulfield: I think we should move to exec session so we can get the explanation
Donoghue: I believe that the clerk of the works should have been notified of this, when council discusses an employee of the city, they should get notice.
Cox: I will not be discussing that in my explanation.
Donoghue: But we will have questions that will possibly go into that area.
Solicitor: It’s possible to explain crux of situation with city, without discussing that area. However, if there are questions in that specific area, you’re right to be concerned about notification.
Donoghue: Don’t know how we avoid that area when discussing the three classrooms. I guess it requires 48 hours notice, I think that was it.
A. Mercier: Let’s get motion on floor:
Motion to move to Executive Session immediately, there was no second, motion isn’t approved.
R. Mercier; Take stock of Donoghue’s concern, I would move that we do initiate 48 hours notice, maybe for Friday, so we can get answers, and notify people involved. Friday, or Thursday.
Howe: Whatever we do, if we want to accomplish anything, we have to have the records, have to have to communications. Otherwise exercise in futility, if possible, I would like to see a rep from DRA, who issued these change order.
Solicitor: cannot have someone from party in litigation.
[argument about this between A. Mercier and Howe]
A. Mercier: motion to adjourn until Friday, what time on Friday?
Milinazzo: I’m out of town until 3pm, maybe 5pm.
A. Mercier: How about next council meeting [election is mention mentioned] How about Monday?
[what chaos – my peace group has an easier time coming up with dates for extra meetings, yeesh!]
Monday, what time?
R. Mercier: 5pm Monday
A. Mercier: Motion to adjourn this meeting and call special meeting for purpose of bringing exec session on Monday at 5pm.
Yes [unanimous] passes. Clerk will post as special meeting.