It's Not Etched in Stone that Sales-Tax-Free Weekends Be Held Only in August

Monday, August 21, 2017

This comes as no surprise to the people I work with (nor to my wife) but I was dead damn wrong in my last post, “Guv’s Sales Tax Holiday Bill Looks D.O.A.  Appearances Are Deceiving,” 8-6-17.

I thought Charlie Baker must have set everything up with legislative leaders before filing a last-minute bill August 2 to have a sales tax holiday the weekend of August 19-20.
I believed that despite the immediate negative reaction to the bill from an important House committee chairman, Revenue’s Jay Kaufman, who said it would be a “colossal mistake” to have a sales tax holiday this year.

I figured our governor must have quietly secured support for the idea from House Speaker Bob DeLeo and Senate President Stan Rosenberg before the filing and that Kaufman must have been out of the loop. I figured wrong.  Kaufman was most definitely in the loop. 
I’m not sure where Baker was.

This past Thursday brought the last possible opportunity for Baker’s sales tax holiday to be enacted. The last informal sessions of the House and Senate prior to the hoped-for event were held that day and the sales tax holiday wasn’t even mentioned.
I have to admit, almost as soon as I posted “…Appearances Are Deceiving,” I started second guessing myself.

Second guessing turned to serious worrying on Tuesday, August 8, when Chairman Kaufman declared he was “certain” there would be no sales tax holiday this year.
And when Friday, August 11, came and went without any action on the bill, I knew I had blown it.

What would be the point of scheduling a sales tax holiday weekend without there being at least one full week to promote it?  
So, if Baker did not have a solid plan in place for the sales tax holiday on August 2, why did he plunge ahead with the bill? 

One can say he did it as a sop to the retailers of Massachusetts, and to the business community as a whole, which is unhappy with him over his failure to persuade the legislature to adopt reforms to the Medicaid program a few weeks ago as part of a state budget that includes new assessments on businesses.
If this conjecture is valid, Baker filed the bill knowing it had no chance but at least comfortable knowing he could lay its failure on the legislature.  A cynical approach like that, however, would mark a big philosophical change in the Baker administration, which puts a premium on dealing sincerely with legislators and not posturing at their expense.

Around the office, I call Charlie Baker “our Eagle Scout governor” because he’s always about solving problems and his eagerness to take on challenges has a refreshingly boyish aspect to it. So I’m going with a simple interpretation of these events:
Baker filed the sales tax holiday bill recognizing that (a) he could not pull it off in August, the time when it has traditionally been held, and (b) he might be able to build a legislative consensus for the holiday sometime later in the year.  There’s no reason why we couldn’t have a sales tax holiday over the Columbus Day weekend, for example, is there? 

Though disappointed it wasn’t held in August, as it has been in 11 of the previous 13 years, retailers would rather see a sales-tax-free weekend happen later than not at all.

 

 

 

Guv's Sales Tax Holiday Bill Looks D.O.A. Appearances Are Deceiving.

Sunday, August 6, 2017

Given the hand-in-glove nature of the relationship between the governor and legislature, it’s hard to believe Charlie Baker introduced a bill last week to establish a sales tax holiday on the weekend of August 19-20 if he had any doubts it would be enacted promptly.  Yet, at this point, it appears that the governor’s plan to suspend the state’s 6.25 percent sales tax the weekend after next is in serious trouble. 

The bill was filed on Wednesday, August 2, and, the day after, it was sent by House leaders to the Joint (House-Senate) Committee on Revenue, whereupon Rep. Jay Kaufman of Lexington, the House co-chair of the committee, said it would be a “colossal mistake” to have a sales tax holiday because of how hard it is going to be to balance the state budget this fiscal year.

According to Department of Revenue estimates, the state would forego around $25 million if no taxes were collected on the sale of goods during the third weekend of this month.  (Only purchases of $2,500 or less would be covered by the proposed law.)

In 11 of the past 13 years, there has been a sales tax holiday in August, each authorized year to year by a special act of the legislature.  Bricks-and-mortar retailers, pummeled by online competitors, have practically been begging the Commonwealth to turn that into a 12-of-14 record.  With Amazon getting bigger by the week, how can a Republican governor not feel their pain?

There were already bills before legislative committees to establish permanent two-day sales tax holidays when the governor came up with his bill for a 2017-only holiday. 

House Speaker Robert DeLeo was quoted last Wednesday by the State House News Service as saying “it makes little sense” for the governor to have filed his own bill at this juncture.  That was a typically careful comment from the leader of the lower branch.  DeLeo did not say he was opposed to the bill.  He did not say it made no sense. He only implied that, at first blush, he was puzzled by the governor’s strategy in putting it forward now. 

Puzzlements are like rumors: made to be dispelled…and there’s no one like the nation’s most popular governor at this time (and member of the Bob DeLeo fan club) to do the dispelling.

The governor’s bill looks now to be dead on arrival in the Revenue committee.  This is a money bill and only the House can initiate a money bill; therefore, Chairman Kaufman’s opposition would seem to be dispositive, as the lawyers like to say. 

I’m focusing on how Senate leaders have not yet concurred in the referral of the bill to Revenue.  Senate President Stan Rosenberg and Speaker DeLeo, working quietly together, could now decide to pull the bill from Revenue and send it instead to the Joint Committee on Economic Development and Emerging Technologies, whose House co-chair, Joe Wagner of Chicopee, is known to favor sales tax holidays.

Wagner could then become the point man in the House for moving the bill, sparing Kaufman from having to disavow his colossal mistake comment as he retreats to the pool of unanimous support for the bill willed suddenly into existence by the Speaker.

The legislature is in recess until September and is holding only informal sessions once or twice a week in August.  Under legislative rules, only “non-controversial” items may be taken up during informal sessions.  If even one member present during an “informal” objects to voting on a bill, it must be immediately tabled, killing the possibility of any action on it that day.

I think the governor had the tacit support of Speaker DeLeo and President Rosenberg when he filed the sales tax holiday bill last Wednesday or was exceedingly confident of winning their support once it was filed.  Baker of course knows that the leaders of both branches can make things happen smoothly and quickly if they want to, and that each leader could secure the acquiescence of any reluctant member of his Democratic caucus on an issue as popular as making taxes disappear for a spell, no matter how short.  (No Republican would think of voting against a deal like this.)  

For two-and-a-half years, Baker, Rosenberg and DeLeo have formed a team as cohesive and as mutually respectful as any could be with players from different parties with different agendas.

We should keep in mind that, just about now, Rosenberg and DeLeo owe Baker one.  Before recessing, the legislature rejected a major initiative dear to the governor’s heart, a package of Medicaid reforms strongly supported by business groups.  To avoid a fight with the legislature, the governor reluctantly signed into law the measure wherein the Medicaid reforms were rejected and accepted a kind of fuzzy offer from the legislature to consider the reforms slowly and deliberately over the next few months.   Business groups, which had been calling for the governor to veto the measure, did not hesitate to criticize him publicly for not vetoing it.  The National Federation of Independent Businesses, for instance, said it was “incredibly disappointed” in Baker.

Baker can begin to mend fences with his natural constituencies in private enterprise by getting a sales tax holiday done in a hurry.  The Democrats who run the legislature can help him do that because they like and respect Baker and value the relationship they have with him.  At the same time, they’ll help their party by giving voters a break at the cash registers on August 19-20.  This colossal mistake will become no big deal in no time. 

Guess what.  Twenty-five million in lost tax revenue in an overall state budget of nearly $40 billion isn’t  a big deal. 

Baker’s new Secretary of Technology Service and Security, Mark Nunnelly, for example, could save at least $25 million by eliminating the state’s 1980s-style, grab bag approach to procuring computer and telecommunications systems and replacing it with the mindset and methods in evidence at scores of successful Massachusetts businesses, universities and medical centers.

 

 

 

 

 

 

 

 

 

 

 

 

This Month in Corruption: Ex-Manager of Two Towns Pleads Guilty to Variety of Crimes

Monday, July 31, 2017

On Thursday, July 20, Andrew Bisignani pleaded guilty in Essex Superior Court to procurement fraud, destroying public records, municipal bid-rigging and other crimes related to his service, from January 1, 2009 to June 30, 2014, as the town manager first in Saugus and then in Nahant, communities north of Boston.   Judge Timothy Feeley sentenced Bisignani, age 70, to two years of probation, including six months of home confinement to begin after the federal home confinement sentence he’s currently serving is completed in January, 2018.  Judge Feeley also hit Bisignani with a $60,000 fine. 

According to a press release from the office of the Essex County District Attorney, had the case against him gone to trial, evidence would have been introduced “that would have proven that, during his tenure as Town Manager of Saugus and Nahant, Mr. Bisignani orchestrated a misleading scheme that violated many procurement laws pertaining to the expenditure of municipal funds.”
In addition, the press release said, “Bisignani attempted to conceal his wrongdoing by altering and destroying documents that an Essex County Grand Jury had subpoenaed from the Town of Nahant. During the period of the grand jury investigation and service of the subpoena, Bisignani met with one Selectman for the Town of Nahant and discussed whether Bisignani would continue to be employed as Town Administrator.  During the meeting, Bisignani concealed a tape recorder in the room and secretly recorded the meeting.”

The release continued: “The scheme orchestrated by Bisignani…entailed the hiring of choice vendors without, effectively, any public procurement process.  Through the scheme, Bisignani directed the Town of Saugus to pay invoices for projects that were never advertised, not subject to any public bidding, and were identified as so-called ‘emergency’ procurements that were not approved by the Department of Capital Asset Management and Maintenance (DCAMM).  The invoices approved by Bisignani (1) disclosed only a portion of a project’s cost, (2) designated foreseeable projects as ‘emergency’ work, and (3) did not include payment of prevailing wages.  Bisignani also caused payments for these ‘split invoices’ to be spread out, further concealing the true cost of the projects, and obscuring the necessity that those projects be subject to public bidding and advertising.  Additionally, Bisignani’s purposeful failure to comply with procurement laws caused the Town of Saugus to hire a vendor during a period that the vendor had been barred from providing services to municipalities by the Department of Industrial Accidents.  Moreover, Bisignani also approved multiple payments by the Town of Saugus to vendors for the same services.”
Essex District Attorney Jonathan Blodgett emphasized: “This scheme charged in this case did not just create an unfair playing field, but an almost entirely secret playing field where hundreds of thousands of dollars in public funds were spent without any procurement process or transparency.  The effective administration of government depends upon a basic trust that persons with authority over public funds comply with the law.  Mr. Bisignani not only betrayed that trust…but he also thwarted investigators, secretly recorded one of the elected officials to whom he answered, and destroyed Town records in order to conceal his crimes.”

According to a report in “Wicked Local, North of Boston,” Bisignani’s attorney, Tracy Miner, told Judge Feeley that her client accepted responsibility for his actions.  She stressed that Bisignani never benefited personally from the scheme and pointed out that there were no allegations that the work that took place in both towns did not need to be done.
Addressing the court, Bisignani said, in part, “I was not charged with, nor did I plead guilty to, any act of personal gain…My hope is that the citizens of the communities I have served know that I always acted in what I believed to be their best interests; and that they will judge me on the totality of my public service and on my accomplishments attendant thereto.”

Back in February of this year, Bisignani was sentenced in U.S. District Court, Boston, to one year of probation in connection with failing to report more than $375,000 of his income on his federal tax returns from 2010 to 2013.  

The Genius of Brian: Other Reps Loved Him as He Got All He Could for His City

Wednesday, July 26, 2017

I don’t know if they’ll ever put up a statue of Brian Dempsey in Haverhill but they should.

During the seven or so years he chaired the Ways & Means Committee of the Massachusetts House, Dempsey did what Ways & Means chairs have done throughout the history of our republic: he delivered the goods to his district.

As the Eagle Tribune newspaper said in its edition of Sunday, July 23, “The last seven state  budgets authored  by Haverhill Rep. Brian Dempsey gave the city millions of dollars to offset  its debts, boost education and create projects to establish Haverhill as a hub of activity in the Merrimack Valley.”

The Eagle Tribune cited a number of large, local projects and developments that came to fruition on Dempsey’s watch because he had the power to get them into the state budget.  These included:

  • Harbor Place, a $70-million downtown development “that benefited from more than $40 million from the state.”
  • $24 million in state funds to offset the debt the city incurred in operating the old Hale Hospital
  • A new $61-million middle school complex. (State share: $40 million.)
  • The expansion of Haverhill High School. (State share: $35 million.)
  • The renovation of Haverhill’s downtown commuter rail station. (State share: $6 million.)
  • The construction of a municipal parking garage. (State share: $2 million.)
  • Improvements to two parks and the Bradford Rail Trail. (State share: $2.6 million.)
  • Renovations to Trinity Stadium. (State share: $6 million-plus.)
  • Grants to the  Haverhill Police Department for staffing and equipment.  (More than $1.5 million over three years.)

Discussing the many grants Dempsey helped to secure for programs in the Haverhill public schools, such as the $218,000 recently allocated for equipment to train high school students in health care skills, School Superintendent James Scully told the Eagle Tribune, “Every single year, he helped us get our technology up to date.  If it wasn’t for Brian Dempsey, we’d be light years behind where we are, technology-wise.  Him leaving the House, it’s as if the Coast Guard were to stop patrolling our shores.”

Said Haverhill Mayor James Fiorentini, “…we’re deeply concerned about him leaving.  He’s going to be sorely missed, there’s no doubt about it.”

If someone has ever run for the Massachusetts House promising to do all he could to ingratiate himself with leadership, build relationships with every mover and shaker in sight, strategically work his way up the ladder over a period of years, and put himself, ideally, in position one day to be appointed chair of the Ways & Means Committee so that he could get maximum state dollars for his district, I’m not aware of it.    

First-time candidates for the legislature, I guess, are usually too idealistic and clueless to do that.  Or maybe they’re afraid they’d come across as cynical or crass.  Such concerns are overblown and unhelpful, in my opinion.

As the good people of Haverhill have demonstrated in their mourning over Dempsey’s decision to quit the legislature and head up a big Boston lobbying firm, (where he’ll be able to make some serious money for the first time in his life), the folks in the district always care more about getting goodies from the state than anything else.  Everybody loves a freebie, an extra, a special deal. That goes for me, too.

We the people are in on the game. We know those discretionary state funds are going to be spent somewhere in Massachusetts, so we figure, Why shouldn’t they be spent on something that will make my town better?

To his credit, Dempsey frankly acknowledges the grab-it-when-you-can imperative of legislative service.  “…as chairman (of W&M),” Dempsey told the Eagle Tribune, “you’re in a tremendous position to deliver, and I certainly wasn’t shy about it.  I felt it was Haverhill’s turn and tried to do as much as I could.”

The wonder of our system is that it works as well as it does, most of the time, and that most legislators who reach positions of top leadership do not become ridiculous and obscene in the utilization of the power granted to them via a biennial vote of their peers.  (The majority party votes for a house speaker and a senate president at the beginning of every two-year session; the speaker and president then appoint all of the committee chairs.)   

During his time as chair of Ways & Means, Brian Dempsey was good to his district but he was also as good as he possibly could have been to his colleagues who did not have the power he had come, through fate and luck, to possess.  One way to put it is that he never forgot where he came from….he remained the friendly, warm, open, humble and understanding person he was at 23 when entering the legislature for the first time.  You just had to listen to the three-minute standing ovation Dempsey received when he was introduced by Speaker Bob DeLeo for his farewell speech in the House chamber on Wednesday, July 19 -- an ovation punctuated by whoops and shouts -- to know that was the case.  There was genuine, deep-seated affection for the man across the breadth of that historic room.  I doubt you could find more than a few persons who served with Dempsey who begrudge him having taken care of Haverhill so well when its turn came around.

 

 

   

 

 

 

 

 

 

A Blogster's Miscellany: From Flatterers to Casino Boozing to Angus vs. Scottie

Friday, July 21, 2017

Kissing Not Welcome in this Room.  Here’s another reason to like Tackey Chan, the Quincy rep just appointed House chair of the Joint Committee on Consumer Protection and Professional Licensure: he does not like to be flattered.  As Chan was co-presiding at a meeting of the committee for the first time this past Tuesday, together with Senator Barbara L’Italien of Andover, witness after witness opened his testimony by congratulating Chan on being appointed the House chair, wishing him well in this important new endeavor, etc., and/or predicting confidently Chan’s success at the helm of the committee. Not once did Chan nod, smile, acknowledge or reply to the praise.  I was there for the entire hearing and marveled at how the witnesses kept effusing when it was obvious that Chan did not wish to have his backside kissed.  Could it be that Chan, a graduate of Boston College High School, Brandeis and the New England School of Law, has taken to heart one of my favorite proverbs, coined centuries ago in the Roman Empire: There is no remedy for the bite of sycophant.

Dempsey’s Class Filled with Heavyweights. House Ways & Means chair Brian Dempsey, who just resigned from the legislature to take a position at a lobbying firm, gave his farewell speech on the House floor this past Wednesday.  I was not surprised to learn that Dempsey was a popular kid growing up.  He talked of visiting the House chamber for the first time as an 18-year-old student council president at Haverhill High School participating in Student Government Day exercises.  (Getting elected to the legislature has always been a lot like getting elected senior class president -- a popularity contest, pure and simple.) I was surprised at the number of reps now holding leadership positions that were first elected to the House with Dempsey in the elections of 1990, taking office in January, 1991.  As recounted by Dempsey on Wednesday, the class of 1991 contained 46 new state representatives, meaning that almost a quarter of the 200-member House turned over at that time, and that among those freshman reps were: House Speaker Bob DeLeo of Winthrop, House Majority Leader Ron Mariano of Quincy,  Joe Wagner of Chicopee, co-chair of the Joint Committee on Economic Development and Emerging Technologies; Tony Cabral, chair of the House Committee on Bonding, Capital Expenditures and State Assets; Lou Kafka of Stoughton, the House’s Fourth Division Chair; and William Galvin of Canton, chair of the House Committee on Rules.
He ‘Had No Business Being There.’ (Who Does?) Having caught the political bug at a young age, Dempsey ran for the Haverhill School Committee at age 18 and lost by only 36 votes.  That brush with victory inspired him to run two years later for the Haverhill City Council.  He won that race and, when he sought a second term on the Council, did even better. “I topped the ticket,” he recalled during his farewell speech.  “In those days, the top vote-getter automatically became Council president.  So, there I was at 23, president of the Haverhill City Council.  I probably had no business being council president.”  He soon jumped into a race for an open House seat and was still only 23 when he went to Beacon Hill. There he remained for twenty-six and a half years. Said Dempsey, “I have loved this job so much and I cannot think of a day I did not enjoy coming in to the State House.”

Senate Prez Defers to Conferees on Casino Bar Hours. Our Senate president could teach the folks in Washington a thing or two about compromise.  Asked yesterday by Boston Herald Radio about the provision in the newly crafted FY 2018 state budget that will allow casinos to serve liquor until 4:00 a.m., Stan Rosenberg said, “I told the proponents I wouldn’t support it.  I urged the (House/Senate budget) conference committee not to approve it, and I did what I could, but the conference committee eventually decided to do it.  I wasn’t going to vote against the (final) budget because of that.”
Casino Machinations Predicted Early On.  A State House News Service article yesterday recapitulated the Boston Herald Radio interview with Rosenberg. The SHNS wrote, “Rosenberg said casino companies usually lobby to change the rules after obtaining a license, and he predicted future efforts to allow smoking in casinos, and for lower casino taxes if the Mashpee Wampanoag Tribe is allowed to build a Taunton casino under federal law.  A tribal casino would pay a lower tax rate than commercial casinos under the 2011 gaming law and a compact negotiated between the Mashpee Wampanoag and the Patrick Administration.”  Rosenberg then said, “These guys applied for a license knowing what the rules were.  They got the license knowing what the rules were.  I warned people in the legislature at the time that this is what happens in every state (where casino gambling has been legalized), and we should protect ourselves against it.”

There’s a Casino Rescue Bill in Our Future.  I wish I had the standing to warn legislators about anything. (Blogging is balm for those denied a pulpit.)  I’d tell them now to expect requests from all Massachusetts casinos, five to ten years hence, to reduce the percentage of gambling profits they’re required by law to give the Commonwealth.  They’ll say they’re not making enough money.  They’ll say increased competition from Connecticut and Rhode Island is hurting their bottom lines.  They’ll say that, if the legislature won’t act swiftly to reduce the state “take,” they’ll have no choice but to start laying people off.  An emergency “casino rescue bill” will be filed at the urging of a coalition of casino industry professionals and labor unions.  By then, given my paltry retirement savings, I’ll probably be working as a greeter at the Wynn Boston Harbor casino in Everett.  I’ll probably be ripe for exploitation in a casino ad campaign.  They’ll give me $500, I’ll say on TV anything they want.  “Hi, I’m John from Melrose.  If the casino rescue bill fails, I’ll be out of a job and eating cat food in a month.  Call your legislators today.  Tell them we need to save our job-producing casinos.  Thank you…and God bless America!”
MA: Driverless Technology’s Worst Nightmare. Back in February, Governor Charlie Baker got the audience laughing during a forum on self-driving vehicles at the winter meetings of the National Governors Association in Washington, D.C.  Noting that several companies devoted to autonomous vehicle technology had set up shop in Massachusetts, he said, “I thought they were doing it because we have a whole lot of smart people who know a lot about technology.  It actually turns out they’re locating in Massachusetts because our winters are horrible and our roads suck.  They basically said, If we can figure out how to move autonomous vehicles safely around the Commonwealth of Massachusetts and the City of Boston, we can do it anywhere in the country.”

Guv Concerned About the Poor Truck Drivers.  On a more serious note at that self-driving vehicles confab, Baker urged U.S. Transportation Secretary Elaine Chao to consider the “workforce issues” that could result from self-driving trucks and other technologies displacing workers.  “I really think it’s important for us as a country to be thinking far enough ahead on that one that we don’t end up creating just a tremendous amount of economic hardship along the way,” Baker said.  Putting truck drivers permanently out of work is not good social policy but holding back the march of technology is not wise or feasible in the long run; therefore, we’re going to help the displaced truck drivers and their families as they transition to new lines of work, and that support will have to be extensive and long-running.  If Democrats had been thinking like that over the last 10 years, maybe Trump would still be hosting Celebrity Apprentice.
Coming Soon to a Busy Roadway Near You. Driver-less trucks could become a reality much sooner than you think. Jason Seidl, managing director of Cowen and Company, was quoted recently by Railway Age as saying that semi-autonomous Level 3 trucks “will be ubiquitous on America’s highways within 5-10 years,” and that driverless Level 5 vehicles will be common “some time after that.” (Semi-autonomous means a vehicle whose driver may cede control of it on certain technologically-equipped roadways and under certain conditions.  The levels assigned to trucks have to do with the federal Department of Transportation inspections they must undergo.)  Seidel added, “A truck without a driver would no longer be subject to the current 11-hour daily drive time limit, which is in place to protect the public from overtired drivers.  Therefore, a Level 5 truck could cover more mileage, haul more freight and ultimately generate more revenue per day than a truck driven by a human.”  More trucks on the road for longer hours on Massachusetts highways?  I am hoping that some engineer will explain to us how it will not be awful when the Mass Turnpike gets equipped with driverless technology.

What if McQuilken Had Won in ’04?  I appreciate the State House News Service for all the little-but-important things it point outs.  This past Tuesday, for example, it ran an item on how the law firm of McDermott Will & Emery has hired Angus McQuilken, who had been chief of staff to former state senator Cheryl Jacques back in the early 2000s. Jacques resigned in 2004 before her term was up.  Scott Brown, then a little known Republican state rep from Wrentham, ran for the Jacques seat, as did McQuilken, a Democrat. “In 2004, in elections that could have altered the course of political history, McQuilken narrowly lost two state Senate races to Scott Brown,” the SHNS reminded us.  “In a special election, Brown outpolled McQuilken 18,876 to 18,518 before beating him 41,889 to 39,253 in the November general election.”  Only 349 votes separated Brown from McQuilken in their first showdown.  If McQuilken had managed to flip just 175 votes, Brown would not have entered the Massachusetts Senate and would not have been in a position to take on and defeat Martha Coakley in the shocking upset election of 2010 election that produced a successor to Ted Kennedy.   Elizabeth Warren subsequently displaced Brown but Brown’s first close win over McQuilken proved to be a gift that keeps on giving.  Brown was a big Trump supporter last year.  His name recognition and prominence as a former widely hailed Republican U.S. Senator boosted Trump, especially in New Hampshire, where Brown relocated after losing to Warren.  For his campaign services, President Trump appointed Brown U.S. ambassador to New Zealand, unquestionably one of the best jobs on the planet.

Sanchez Possesses the All-Important Trait of a Ways & Means Chair

Monday, July 17, 2017

This past Thursday, July 13, Haverhill’s Brian Dempsey surprised most everybody in the Massachusetts legislature -- and everyone who follows the workings of the legislature -- when word got out that he will soon be resigning from the House and relinquishing the chairmanship of Ways & Means Committee to direct a large Boston lobbying team.  

The House chair of Ways & Means is one of the five most powerful persons on Beacon Hill, the others being the governor, the president of the Senate, the Senate chair of Ways & Means, and the speaker of the house.

For years Dempsey has been seen as the speaker-in-waiting, the man destined to succeed Bob DeLeo when DeLeo decides to step down, whenever that may be. 
The sound of long-held expectations shattering is always loud.  It echoes impressively, like the blast from a large bomb dropped in a mountain range. 

Immediately, speculation began on DeLeo’s choice of a new Ways & Means chair.
Although his name wasn’t mentioned in the initial press accounts, I thought the safe choice was Steve Kulik, the Democrat vice chair of House Ways & Means, who grew up in Newton and has represented a collection of 19 small western towns for 27 years.  Kulik, age 66, has been a faithful No. 2 on Ways & Means for a long time. Promoting him would have enforced the notion that diligence and loyalty are rewarded in the lower branch.

Another potential advantage for the speaker in choosing Kulik, I thought, was that he does not have the political heft of some of the bigfoot House committee chairs who, if gifted now with the chairmanship of Way & Means, would automatically be seen as DeLeo’s hand-picked successor.
Kulik’s elevation to Ways & Means chair, I thought, would also give DeLeo time to evaluate carefully the pros and cons of every other putative speaker on his leadership team and to make at his leisure the painstaking choices required for the development of an optimal plan of succession.        

If, after the 2018 legislative elections, the time came when DeLeo wanted to appoint someone other than Kulik chair of Ways & Means, I thought, DeLeo could assert that Kulik’s leadership of the committee, by mutual understanding, had been provisional from the start and that he’d always had other things, of equal or greater importance, in mind for his esteemed colleague from the Berkshires.
Before leaving the office this past Friday, I went to the web site of our legislative tracking service, MassTrac, and printed out the biography of each of the House committee chairs I considered a strong candidate to succeed Dempsey.  In alphabetical order, they were:

  • Thomas A. Golden of Lowell, Committee on Telecommunication, Utilities and Energy
  • Harold P. Naughton, Jr., of Clinton, Committee on Public Safety and Homeland Security
  • Jeffrey Sanchez of Boston, Committee on Health Care Financing
  • William M. Straus of Mattapoisett, Committee on Transportation
  • Joseph F. Wagner of Chicopee, Committee on Economic Development and Emerging Technologies

Over the weekend, Speaker DeLeo made his choice of a new chair of Ways & Means and it was…Sanchez! 

The Sanchez news broke Sunday afternoon.  Several accounts last night and this morning described him as a surprise choice, while justly trumpeting that DeLeo has set in motion a chain of events that could culminate in the election of the first Latino to head a branch of the Massachusetts legislature.  Sanchez was born in Puerto Rico and came to the mainland U.S. as a young boy.   
The commentary on Sanchez also centered on his progressive views as a contrast to the usual centrist or conservative inclinations of legislators normally put in charge of the budget process.

I remember the period in 2005 when former House Speaker Sal DiMasi surprised a lot of people by naming Bob DeLeo, then a quiet, deliberately-low-profile chair of the Committee on Bills in Third Reading, chair of Ways & Means.
I remember talking about DeLeo’s promotion one day soon after with a friend and fellow lobbyist, a gentleman who had served with DeLeo in the House and is a member of DeLeo’s “class,” i.e., they both entered the legislature in 1991.

“You’ve known DeLeo a long time,” I said.  “Why do you think he was chosen?”
“Like most things,” my friend said, “it’s kind of simple:  Bobby DeLeo was the only one of Sal’s close friends who can say no to people.”

Saying no is a big part of running Ways & Means.  It’s not easy, it's no fun, being Mr. Bad News, especially when you have to reject pet proposals from persons you've served with for years, men and women you may be very fond of, personally.
Say all you want about Jeff Sanchez being a progressive, which is kind of a complimentary term for liberal.  Sanchez is a progressive.  What's truly salient are two attributes he's exhibited during his chairmanship of Health Care Financing:  he's willing to do the hard and tedious work of mastering the numbers, and he can say no to any colleague seeking his support for a new and ostensibly promising health care initiative if he's not convinced it's worthwhile, financially or operationally.  Sanchez is a hard sell.

Sanchez is also a good man, a serious legislator, and, wonder of wonders, a non-jaded idealist at age 48. 

The Speaker made a good call. 

 

  

 

 

 

 

This Month in Corruption: Power Plant Tech Punished for Equipment Tampering

Friday, June 30, 2017

A recent Massachusetts case involving violations of the federal Clean Air Act serves as a reminder of how dependent we all are upon the honesty and diligence of those responsible for monitoring the purity of the water we drink, the quality of the air we breathe, and the wholesomeness of the  foods we eat and beverages we drink. 

We worry a lot about terrorists. Yet we barely ever give a thought to the guys testing samples at our municipal water plant or operating the pollution controls at the power plant a few towns away -- unknown persons, laboring in obscurity, who can seriously hurt us through negligence and malfeasance. 
The real daily risks we face are more familiar, more ordinary, and closer than we think.

On June 9, U.S. District Court Judge Mark G. Mastroianni sentenced Scott Paterson, age 46, of Manchester, CT, to one year of probation for tampering with environmental monitors while working as an instrument and control technician at the Berkshire Power Plant in Agawam, not far from Springfield.

The Office of Acting U.S. Attorney William D. Weinreb of Massachusetts reported that:
  • From 2008 to March, 20111, Paterson, at the direction of senior managers at the plant, tampered with the plant’s Continuous Emissions Monitoring System (CEMS), which measures and records concentrations of regulated pollutants emitted at Berkshire.
  • The purpose of the tampering was to delay repairs and avoid reporting to federal and state regulators that the plant was, at times, releasing certain pollutants, specifically nitrogen oxides, in excess of the plant’s Clean Air Act permit limits.
  • Initially, the tampering involved lowering monitors by a constant rate – approximately .5 parts per million (ppm) – below the known value.  These constant adjustments did not trigger any alarms or warnings and were thus usually maintained in the system through approximately Mid-March of 2011.
  • In the summer of 2009 and 2010, the plant underwent an independent annual audit.  Prior to the audit, Paterson’s supervisor directed him to take out the adjustments in the CEMS monitors and then to reinstate them after the audit.
  • By 2010, this .5 ppm adjustment was not sufficient to allow the plant to run at full power and to comply with the facility’s Clean Air Act permit.  Rather than making necessary repairs, Paterson, again at the direction of his supervisors, lowered the CEMS readings even more to avoid (a) reporting emissions in excess of the hourly limits or (b) hitting warning levels.
In 2015, the Berkshire Power Plant was charged jointly by the U.S. Attorney’s Office and the Massachusetts Attorney General’s Office with tampering with its monitoring equipment and falsely reporting data to environmental and energy regulators.

In March, 2017, Berkshire Power Company and Power Plant Management Services, the owners and operators, respectively, of the plant, were ordered to pay $7.25 million in fines, penalties and other payments for their roles in tampering.

Legislature Poised to Open Up Medical Marijuana Licensing to For-Profits

Monday, June 26, 2017

Last week, the Massachusetts House voted 126-28 to make major revisions to Chapter 334 of the Acts of 2016.  That’s the law allowing recreational use of marijuana, which was enacted via an initiative petition on the November, 2016, statewide ballot.

The measure containing those revisions is House Bill 3773, An Act to Ensure the Public Health and Safety of Patient and Consumer Access to Medical and Adult Use of Marijuana in the Commonwealth.

On a parallel track, the Massachusetts Senate voted 30-5 to add a bunch of its own amendments to H.B. 3773. 

A six-member House-Senate conference committee is now at work on a compromise, final version of the recreational marijuana law.  Its goal is to have a reworked bill before Governor Charlie Baker by the end of this week and signed into law as soon as possible after that.

If that timetable is met, Massachusetts will begin the process of regulating the sale of marijuana for adult consumption next week, with recreational marijuana stores set to open in July, 2018.
The media covered last week’s action on recreational marijuana in the House and Senate extensively – not surprising when you consider it is truly a groundbreaking piece of legislation that will have wide ramifications in our society, economy and culture.

We heard and read a lot, for example, about the percentage of the tax to be imposed on recreational marijuana.  The House wants it to be 28%, while the Senate favors something much less onerous, 12%, the same percentage as in last November’s initiative petition.
There was, however, at least one significant aspect of this exercise in lawmaking that generally escaped notice beyond the confines of the State House: How the House and Senate have agreed on the need to reshape the five-year-old law allowing state-licensed dispensaries to sell marijuana products for medicinal use, Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana.

A significant change to Chapter 369, on which both the House and Senate agree, is to allow medical marijuana dispensaries to be for-profit businesses.  Chapter 369 called for dispensaries to be not-for-profit companies.  This made it difficult to raise funds to open dispensaries and accompanying cultivation facilities, as profit-driven investors could not hold a stake in those companies.
If the governor goes along with this change, we could see dispensaries opening everywhere they’re needed throughout the state.

During the Senate debate last week, Senator Patricia Jehlen emphasized that House Bill 3773 “will preserve and protect the medical marijuana program.”
The bill, she noted, will “protect the ability of the medical program and reduce bureaucracy” by transferring state oversight of medical marijuana to the C.C.C. (Cannabis Control Commission) "carefully over 18 months." 

The bill “institutes privacy protections for patients and helps current medical facilities to compete by allowing them to convert to a for-profit entity to allow them access to capital,” she said.
A trustworthy person I know, who has kept tab for years on all-things-marijuana, says the limitation of medical marijuana dispensary licenses to non-profits was “a major flaw” in the 2012 law, and “a defect that had become increasingly apparent.”

It is “extremely difficult,” he asserts, for the entities with dispensary licenses or applying for those licenses “to raise funds or borrow money from investors when the operations they’re investing in have to operate as non-profits.”
The Commonwealth, as my friend rightly puts it, imposes “a regulatory scheme” on marijuana use solely to protect “the health, welfare and safety of Massachusetts residents.”

He asks, “What does being a non-profit or a for-profit have to do with this extremely important governmental obligation and objective?” 
Answering, he says: “Nothing!  It is more in the interest of the Commonwealth to ensure that we have well-capitalized operations dispensing marijuana for either medicinal or recreational use. Dependable, long-term financing is directly connected to managerial expertise, sound management practices, operational efficiency, and customer satisfaction.”

My friend adds, “I’m glad the legislature now agrees with me on this.”

NOTE: Members of the conference committee on House Bill 3773 are, from the House: Majority Leader Ron Mariano of Quincy, Mark Cusack of Braintree and Hannah Kane of Shrewsbury; and, from the  Senate: Jehlen of Somerville, William Brownsberger of Belmont and Richard Ross of Wrentham. Rep. Kane and Senator Ross are Republicans; all other conferees are Democrats.  Rep. Cusack and Senator Jehlen also serve as co-chairs of the special legislative committee on marijuana policy.

 

Bikers Who Love that 'Wind-in-My-Hair Feeling' Still Hoping for Legislative Relief

Wednesday, June 21, 2017

When I was 18 and a freshman at Northeastern, my sister-in-law, Sue, was a recent graduate of the Mt. Auburn Hospital school of nursing (Cambridge) and working as an operating room nurse at that hospital. 

One day she asked me to promise I would never ride a motorcycle.  I asked why.
“Because,” she said, “I’ve already seen too many people in the O.R. who were permanently damaged in motorcycle crashes or did not survive those crashes.  Some of them weren’t much older than you.”

She added, “Do you know what some people call motorcycles?”  I did not know.
“Donorcycles,” she said.  “They make organ donors.”

A recent article in STAT, an online product of Boston Globe Media, brought me back to that conversation with Sue. Headlined, “Pro-helmet activists are notching wins against motorcyclists shouting ‘freedom,’ ” it said:

“Pro-helmet activists have launched aggressive efforts in state legislatures across the nation to fend off motorcyclists demanding the right to ride bareheaded.
“For two decades, the riders – and their rallying cry of freedom – have often had the upper hand in these battles.  Now, though, the public health advocates are gaining traction as more and more evidence emerges that mandating helmet use saves lives.”

Around 4,500 motorcyclists are killed every year in the U.S., STAT reported.
STAT cited an academic research paper recently submitted for peer review that posited a 20 percent increase in the supply of donated organs in jurisdictions where motorcycle helmet laws had been repealed.  The paper is titled, “Allocating Scarce Organs: How a Change in Supply Affects Transplant Waiting Lists.”  Here’s an excerpt:

“…we hypothesize that the repeal of a universal helmet law, which requires all motorcyclists to wear helmets, increases the number of helmetless motorcycle riders. [Blogger’s note: Duh?]  This in turn increases the probability of brain death – the principal criteria for becoming a deceased organ donor in most cases.”
In each of the two previous legislative sessions, 2013-14 and 2015-16, at least one bill that would have weakened the Massachusetts statute requiring universal helmet use by motorcyclists has been introduced in the legislature.

This session, there’s House Bill 1862, An Act Relative to Motorcycle Helmet Choice, and Senate Bill 1932, An Act Relative to Standards for Protective Headgear for Operators or Passengers on Motorcycles.
H.1862 would change the existing law to mandate that only persons under 18 who are driving or riding on a motorcycle wear a helmet, while S.1932 would eliminate the section of a state law (Chapter 90, Section 7) requiring everyone on a motorcycle to wear a helmet.

In previous sessions, all anti-helmet bills died in committee.  There’s no reason to believe H.1862 and S.1932 will do any better this session.
On Thursday, May 18, a convoy of motorcyclists arrived on Beacon Hill to demonstrate support for S.1932.   According to the State House News Service, Rick Gleason, legislative director of the Massachusetts Motorcycle Association, said that day that one reason bikers want to be able to ride helmet-free is to experience the feel of the wind in their hair.

I wrote a post, back in April of 2014, on an earlier version of a helmet-free bill, one of those that later died in committee.  What I wrote then I write now:  I would endorse the enactment of a helmet-free law for motorcyclists if it included a section stipulating that anyone on a motorcycle not wearing a helmet who suffers a head and/or spinal injury leading to permanent disability agrees to forego permanently any public assistance, as through Medicaid or Medicare. 
If you don’t want the government meddling in your open-road experience and ordering you to protect your own brain in the most effective way possible, you can’t expect the government, i.e., taxpayers, to pay for the long-term care you may need after you’ve been badly hurt in a motorcycle crash.

 

 

Complainants Mostly Strike Out at Commission on Judicial Conduct

Friday, June 16, 2017

Except for one judge who made a racially insensitive comment to a colleague and was forced to resign (see previous post), Massachusetts judges, in the judgment of their watchdogs, pretty much behaved themselves in 2016.

That’s an obvious take-away from the recently issued 2016 annual report of the state’s Commission on Judicial Conduct, which has been keeping tabs on judges for nearly 40 years.  The unpaid, nine-member commission has a threefold mission: to enforce the standards set forth in detail in a written code of conduct; to promote public confidence in the judicial branch of government; and, to preserve the integrity of the judicial process
In 2016, the commission received a total of 252 complaints; of that number, 62 were “docketed for investigation or preliminary inquiry.”

Overall in 2016, the commission officially looked into 75 complaints and disposed of 61 of them.  And 59 of the 61 disposed cases were dismissed with a finding of no misconduct.  Judges had a success rating of nearly 97%!

In four of the 59 no-misconduct dismissals, however, the commission “expressed concern to the judge regarding future conduct.” If I understand, this meant that each of the four had messed up, but not so badly that they crossed the line to misconduct land.  The commission basically warned them and said we’ll be watching you.

The remaining two among the 61 disposed cases were ones the commission had subjected to “Informal Adjustment or Agreed Disposition,” had been monitoring, and had decided to close. 

Here’s the excerpt from the report explaining what that means:

“An Agreed Disposition may take the form of an Informal Adjustment in which the Commission informs or admonishes the judge that certain conduct is or may be cause for discipline.  This form of disposition requires agreement by the judge to the terms of Informal Adjustment.  In most cases, this type of disposition has a valuable, favorable effect on a judge’s conduct.  [Blogger comment: As do near-death experiences.]

“The terms for such a disposition usually include a period of monitoring by the Commission and conditions imposed on the judge that are designed to prevent a repetition of the misconduct.  The conditions may include counseling, education, assignment of a mentor judge, monitoring by the Commission for a specified period of time, voluntary retirement, or other appropriate conditions.”

Of the 252 total complaints against judges in 2016, the most frequent complaint was that a judge had denied someone a full opportunity to be heard.  That was alleged in 42 instances.  The most frequent complaints after that were inappropriate demeanor (39), bias or prejudice (35), and disagreement with decisions and rulings (24).

The most complaints, 30, were filed against judges in the Probate and Family Court, not surprising when you consider that’s where people fight relentlessly over divorces, properties and wills.  The second highest number of complaints, 17, was inspired by district court judges – not really high, considering there are more district court judges, 158, than any other kind. 

The second largest contingent of judges is found in our superior courts, where there are 82.  And, all told, we have 411 judges serving in nine separate court divisions, headed by the seven justices of the supreme judicial court.

In his introduction to the 2016 report, Howard V. Neff, III, Executive Director of the Commission on Judicial Conduct, said, “Many complaints are filed with the Commission by parties who are disappointed with how their cases came out and believe the judge was not ‘fair’ or that his or decision was wrong.”

Neff continued, “Hardly a judge in Massachusetts escapes such claims over the course of his or her career on the bench, and the Commission’s examination of complaints regarding a judge’s decision is limited to allegations that a judge clearly violated the Code, or made a legal decision in ‘bad faith’ or based on a corrupt motive.  If a party alleges that a judge has misinterpreted the law or evidence, the proper forum for a remedy includes the appellate court but does not include the Commission.”

 
FOOTNOTE:  You may find the annual reports of the Commission on Judicial Conduct at www.mass.gov/cjc, and the Code of Judicial Conduct at http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/sjc309.html

 

 

 

 

 

 

 

Official Report Leaves One Eager to Know More about 'Racially Insensitive' Judge

Thursday, June 15, 2017

There’s one intriguing item, and one only, in the latest annual report of the Massachusetts Commission on Judicial Conduct, which fills some 90 pages of text.  (I read these things so you don’t have to.)

It concerns a judge who made “insensitive racial comments” to another judge.  The second judge filed a complaint with the commission, after which the first judge retired, citing “family health reasons.”
Here’s the item, excerpted in its entirety from the report:

“A judge was alleged to have made insensitive racial comments to another judge while in the judges’ lobby of the court in which he served, in violation of Rules 1.2, 2.2, 2.3(A), 2.3(B), and 2.8(B) of the Code of Judicial Conduct.  Because of this complaint and for family health reasons, the judge retired as a judge and agreed not to seek appointment as a recall justice.” 
Editor’s Note: Above-cited rules may be found at bottom of this post.

The names of both the offending and offended judge are omitted from the report.  Also missing is the name, category and location of the court where the conversation occurred and the races and genders of the two judges.
One’s imagination naturally rushes in to fill the vacuum. 

Your guess is as good as mine as to how far over the line the offending judge went.  To use a word that lawyers love, how “egregious” was the judge’s racially insensitive behavior?  Off the top of my head, I’d say quite.  “Family health reasons,” in the public realm, is akin to patriotism: the last refuge of scoundrels.
It would seem from reading its annual reports, which may be found at www.mass.gov/cjc, that the Commission on Judicial Conduct has pondered the concept of public information the way Medieval scholars did original sin and has come to the firm conclusion that extreme caution and reluctance are almost always called for.

Under the heading of Confidentiality in its latest report, the commission states, “The statute and the rules that govern the Commission on Judicial Conduct require that the complaint and all Commission proceedings remain confidential, unless and until the Commission files Formal Charges with the Supreme Judicial Court. (There are certain limited exceptions to this requirement.)  This strict confidentiality includes all communications made to and by the Commission or its staff; it protects complainants, witnesses and judges.” 
Editor’s Notes: 1. Commission actually capitalizes the “F” and “C” in Formal Charges, apparently to distinguish Formal Charges, i.e., serious shit, from formal charges, i.e., less serious but still problematical. 2. Question: Do you think anyone complaining about a judge perceives the commission's confidentiality policy as something that exists primarily to protect them?

The Supreme Judicial Court is the forum where Formal Charges against judges are adjudicated.  If one of these cases gets to the SJC, the proceedings "are nearly always public," the commission says.  That means a judicial misconduct case has to have substance before the public may learn anything about the judge and how he has come to grief.

Contrast that situation to what would happen to you if you became ensnared in a mistaken identity case where the police arrested you and charged you with, say, rape, armed robbery, or assault and battery on an elderly person.  Do you think there's any chance your name, age and address would not quickly appear in your local newspaper?

Or consider what would happen if you were named in a civil lawsuit by a mentally imbalanced neighbor or ex-friend who was desperate for money.  That person could state in court-filed documents all kinds of outrageously false things about you that would immediately become a matter of public record, a record upon which your local newspaper could feast at will.

Howard V. Neff, III, the commission’s executive director, in the introduction to the 2016 annual report (published April 28) relates that “One understandable frustration sometimes expressed about the Commission is that the bulk of the Commission’s work and decision-making is behind closed doors and is never made known to the public.”  Imagine.

“Some would have everything ‘out in the open,’ ” Neff continued, “but for very good reasons, the law does not go that far.”
Although the commission has “limited authority” to make information public, Neff explained, “the experienced membership of the Commission must carefully weigh whether, given the facts and circumstances of a particular complaint, public disclosure would serve or undermine the Commission’s mission to preserve the integrity of the judicial process and promote public confidence in the judiciary.”

We simply have to trust the judgment of Mr. Neff…and the commissioners to whom he reported during the period covered by the 2016 annual report:
Julie J. Bernard, John J. Carroll, Jr., John D. Casey, Quinton B. Dale, Susan M. Finegan, Kathleen M. O’Donnell, Jacqueline A. O’Neill, Edward P. Ryan, Robert N. Tochka and Felicia P. Wiltz.

FOOTNOTES, re: Pertinent Rules, MA Code of Judicial Conduct
Rule 1.2  A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 2.2  A judge shall uphold the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.3(A)  A judge shall perform the duties of judicial  office, including administrative duties, without bias, prejudice, or harassment.

Rule 2.3(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person’s status or condition.  A judge also shall not permit court personnel or others subject to the judge’s direction and control to engage in such prohibited behavior.

Rule 2.8(B)  A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court personnel, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court personnel, and others subject to the judge’s direction and control.