Anger and finger-pointing after demise of New Bedford ballot question

“The government is us; we are the government, you and I.” – Theodore Roosevelt

New Bedford residents Catherine Adamowicz and Paul Hankins are mad, fighting mad. In an effort to put a City Council term limits petition on the November ballot, they believe they were given wrong information by the city Elections Office and that the misinformation thwarted their effort.

Manny DeBrito, the chair of the city’s Election Commission is mad, fighting mad. He believes his best efforts to run a good Elections Office have, for a long while now, been unfairly demeaned by two local talk radio hosts. He feels WBSM’s Chris McCarthy and Marcus Ferro have been so unfair to him that he doesn’t want to even engage with their station.

Adamowicz, who I have understood was formerly a fan of mine, is fighting mad. Fighting mad at me. In the wake of my criticizing the way that she and partner Paul Hankins went about conducting their petition drive, she’s said she’s had enough of my “blaming the victim” and that she’s considering stopping talking to me. She assesses that I’m looking for a fresh angle for my column and that my opinions are “shameful.”

It’s good guys and bad guys all around and no shades of gray. “You did the city wrong!” “No, you did me wrong!” “No, you did!” “No, you did!”

That’s the era of mistrust in the system and consolation in conspiracy theories that we all live in these days, both locally and at the national level. It’s all infotainment and the merchandising of information and politics.

Now you already know a lot of the term limits saga from Arthur Hirsch’s fine reporting in The New Bedford Light, but let me recap with some background that you might not be aware of.

Adamowicz says that back in April, DeBrito led her to believe that she could get an initiative petition on the ballot in November by collecting about 3,100 signatures, and by following the same process that successful petitioners who changed New Bedford’s mayoral term from two to four years did back in 2017.

DeBrito “very firmly and clearly and without question” informed her that she needed to gather the signatures of 5% of the voters and to then get those signatures certified 45 days before election day, Adamowicz said.

Some two months later, she said, DeBrito informed her that there “may be” a problem with the way she was going about her petition and he gave her a Secretary of State list of procedures by which a city charter could be changed, and told her she should contact the secretary’s office. By that time, Adamowicz was already a week or so into gathering what a month later would become about 2,700 signatures.

“He (DeBrito) gave us the exact number, 3,075,” Adamowicz said. DeBrito also told her, she recounts, that she should talk to two of the folks who organized the mayoral term petition because he was not in office at the time and they would know more than him.

DeBrito tells a different story.

He says he made it very clear to Adamowicz from the start that he is not a lawyer and that she would need to obtain legal opinions to have definitive advice about how the petition process works.

“I never gave her any numbers,” he said. “I told her from the beginning, everything that happens, I have to go through the solicitor’s office. They determine. There’s a lot of gray areas in the law.”

Unfortunately, DeBrito, a full department head at City Hall, had a difficult time getting the attention of the City Solicitor’s Office, which the mayor says has been cut by the City Council and chronically understaffed. This was especially as it came down to the end of the fiscal year on June 30 and there was a variety of work to be done on the budget, City Solicitor Eric Jaikes said. Jaikes’ position is part-time, and he also has a private law practice.

DeBrito also said that both the solicitor’s office and mayor’s office have told him to shy away from telling people how to do a charter change, so he would never have provided Adamowicz and Hankins with definitive instructions. “I was told ‘We don’t give legal advice to private citizens,’” he said.

According to DeBrito, people come into the Elections Office all the time asking about petitions, and that Adamowicz was the latest. She came in this spring asking about a petition for City Council term limits.

He said he told her he wasn’t in the office for most of the last referendum petition in New Bedford — the one on changing the two-year mayoral term to four years — but that he could give her the names of the two organizers of that drive who might be able to give her good advice on how to do it.

“That will give you good reference, it’s a good referral to how they started the process on their end,” he said. “It’s a good starting point for you as a citizen starting a petition.”

Adamowicz acknowledges she did see one of those organizers, Rick Kidder, the co-CEO of One Southcoast Chamber, and he spent about an hour with her telling about his experience. Kidder gave her a warning, she said. “He said very clearly, ‘Make sure you get it drawn up right,’” Adamowicz said.

It sounds like Adamowicz took Kidder to be referring to drawing up a specific form, but I would think that included making sure the form reflects the right process for the initiative petition. From almost half-a-century of reporting on elections, I know ballot initiatives can be a very complex process and the forms may be different.

Kidder has been unavailable for comment for this column, and perhaps he was only referring to the form, not the process.

Adamowicz did get a lawyer, although she had to go to Taunton because she said four different lawyers in the city told her they had conflicts of interest. That’s a story in itself. But the lawyer she hired, Adamowicz said, was only for drawing up the petition form, not for researching what was the proper procedure to change the law; she felt she already understood that part of the process from DeBrito. 

Odd. Nowhere have I heard from  Adamowicz or DeBrito that anyone showed her the section of the law outlining the initiative process, and the various types of petitions that might be available to her for the purpose of changing City Council term limits. 

Adamowicz seems to me to be an earnest, well-intentioned person, and she is the most encouraging citizen activist that I have seen come out of New Bedford in many years. But she does not appear to have any experience in the complexities of initiative processes for changing a city government. 

It struck me as odd that she had hired a lawyer just for the wording of the petition and not to help her understand the whole process of changing the city’s governing code. My antenna went up further when I asked her how much she and Hankins had paid her attorney, John Zajac of Taunton, and she very firmly declined to tell me. 

I later learned that there is a concept known as “limited assistance representation” in which you can simplify things, perhaps save on legal fees, by simply asking a lawyer to handle one specific part of a case while you agree to handle the other parts yourself. It can save you on costs, and sometimes the limited assistance lawyer will even work for free, “pro bono.”

I don’t know if that’s what happened here, but I’m suspicious, because of Adamowicz not providing me with any details about how this lawyer worked for her and how and what she paid him.

I’ve called her a second time for clarification on this but have not heard back.  

In any event, people with experience doing charter changes know that you better either have a good lawyer or yourself have a firm, first-hand command of the complexities of the law. You certainly cannot depend on a conversation at the Elections Office counter to undertake such a task. It’s not Adamowicz’s fault that she did not know that, but that’s the reality.

The mayor evidently has a similar view and told the WBSM hosts the same this week.

“You gotta hire an attorney who knows what they’re doing. They didn’t do that. They got terrible legal advice and the lawyer himself, speaking directly to Eric Jaikes, our city solicitor, said, “I didn’t do the research.’”

For his part, that lawyer, John Zajac, placed the blame back on the city.

“They were off track from the start because of lack of information and misinformation,” Zajac told Hirsch.

Hankins called into WBSM this week to emphasize that asking an elections commission chair for the legal process is not the same as asking for legal advice. I agree with him but in the process of his discussion, he contradicted Adamowicz, and in fact backed up DeBrito’s contention that he never gave Adamowicz any definitive instructions on how to do the petition.

“We did not ask Manny for anything more than a procedure,” Hankins said. “He didn’t know and he sent us to other people who said this is the way to go,” he said.

Hankins did back up Adamowicz on DeBrito giving them the 5% and 45 days numbers.

So it was Rick Kidder who gave them the bad advice because DeBrito said he knew the process? That doesn’t make sense. They needed to find someone showing them the actual law.

So I guess the question is this: If you are trying to conduct a legal process to change city government, whose fault is it if you do it the wrong way? Is it the fault of the city for not telling you how to do it right, or for telling you the wrong way to do it? Or is it your fault for not finding out the correct way to do it, by way of either the city, your own research or a lawyer that you hire?

I’ve said pretty much all this on my own weekly appearance on WBSM since Hirsch broke this story, and it has not endeared me to either Adamowicz or my friends on Southcoast Now, who have long been frustrated with what they consider poor performance in the city Elections Office, They have particularly complained about getting city election results in a timely manner and have questioned whether DeBrito is competent or suited to doing the job. 

For the record, I’m not happy with everything about DeBrito’s performance, but over time I’ve come to the conclusion he overall does a competent job — or at least as competent as I’ve seen in any other South Coast city or town official. And his election result announcements for a city the size of New Bedford are well within the practices of similar cities I’ve reported on.

Adamowicz and Hankins acknowledged they may have been “naive” about the process but said they simply did what they were told by DeBrito; it’s his fault, and the solicitor’s office, as well as the state Legislature’s fault, for writing a complex charter changing process, Adamowicz said.

“I don’t think Paul and I should accept responsibility for listening to what the elections officer said,” she explained.

She and Hankins have now begun “Call to Action,” a phone call drive to get the City Council to put their question on the ballot without the signatures, but most observers of city politics think that’s a dubious proposition, especially getting incumbent councilors to sign off on term limits, even ones that may not immediately affect themselves. 

For his part, Mayor Mitchell has said he supports term limits but he would have to see the details of whatever Adamowicz and Hankins are proposing in order to put a question on this November’s ballot. 

Adamowicz and Hankins have also said publicly that they have now spoken with three different lawyers, including the attorney general’s office, about a possible First Amendment/civil rights action against New Bedford for interfering with their ability to engage in the initiative process. Hankins said there is also a way for the City Council to place a question on the ballot in a future year with just 200 signatures.

Even though Adamowicz has said they don’t want sympathy, one has to feel for the couple — they  seem to me to be good and decent people merely trying to address what they see as dysfunction in city government. I’ve spoken favorably of their effort for many months. But they didn’t know what they didn’t know about the charter change process, and neither did DeBrito nor their own lawyer. Even the unavailable city solicitor’s office said it finally took Associate City Solicitor Nicholas DeMarco quite a while to compile a 3½-page summary of the various initiative procedures for council term limits that might apply. That’s a comedy of errors that has led to at least the temporary crashing and burning of Adamowicz and Hankins’ effort.

“We figured we could use the same taxi for a different fare,” as Kidder’s group did for the mayoral petition, said Hankins.

“We had no reason to think otherwise,” added Adamowicz.

Here is at least part of where things fell apart.

The state, in an effort to encourage four-year mayoral terms, has made the petition process for that particular charter change much easier than the one to enact term limits on elected officials. The City Council term-limit process is an entirely different initiative process than the mayoral change and more onerous.

And then there’s the “he said/she said” of whether DeBrito and the City Solicitor’s Office are responsible for their not knowing the process or Adamowicz and Hankins are.

I don’t know whether Adamowiciz’s or DeBrito’s version of events is the most accurate. I’m inclined to believe both have some accuracy and some shading of the facts.

I myself had talked to DeBrito sometime in the spring, and in casual conversation, he had told me that Adamowicz would need “3,100 signatures.” That seems to indicate he was, in fact, going by the mayoral-term petition template at that point. But that casual conversation is a far different matter than whether he definitively instructed Adamowicz to do the process a specific way.

About a month or so later, I asked DeBrito about the petition more formally, and I mentioned the 3,100 figure that he had noted prior. This time, DeBrito said no, no, no, that was not right. He did not give me much more information but he did say, as he often does when I’ve asked him about any matter of election law, “I’m not a lawyer.” That to me is a clear message that if I wanted definitive information about how the charter change was going to work, I needed to either get it from a lawyer, or go myself and research the actual law.

Given the way DeBrito has always framed things to me, I’m inclined to believe he would have given Adamowicz a similar message, that he was not a lawyer and his information could not be relied on. But in the end I don’t know. It’s a she said/he said.

I do know that DeBrito and Adamowicz agree that on June 20 he had hand-carried a petition form that her lawyer (Zajac) had drawn up to the City Solicitor’s Office. The purpose was to see if it was in the right form.

Both Solicitor Jaikes and Associate City Solicitor Nicholas DeMarco, however, have told me that they have never seen such a form.

They theorize it might have gotten lost in the shuffle because DeBrito brought it to the third floor of City Hall where administrative assistants are temporarily located during reconstruction of the City Solicitor’s Office complex, located on the second floor. 

A month or so went by. DeBrito says that he hadn’t heard back from the solicitor’s office (despite inquiring several times), so he decided to himself try to find out from the Secretary of State’s office how the initiative petition for City Council term limits should work. They sent him a list of procedures that were applicable, and he noted that there are many variations for many communities.

Here’s where it gets a little odd. DeBrito says Adamowicz sent the Secretary of State’s list to Zajac, who in turn just sent it back to the City Solicitor’s Office. But why would she even give the list of procedures to Zajac if he was just representing her on drawing up the form for the petition? By the way, City Solicitor Jaikes eventually ruled that the signature page that Adamowicz had turned in was done wrong. It’s not clear to me whether that was Zajac or Adamowicz’s work.

I’m still trying to reach Adamowicz on that.

At this point, Adamamowicz was already a little more than a week into her signature drive and needed to make the deadline toward the end of the summer. She was determined to keep collecting signatures and she points out that DeBrito kept accepting them.

By the third week of July, tired of waiting for a response from the City Solicitor’s Office, Adamowicz said she went to Mayor Mitchell’s office and demanded a meeting with City Solicitor Jaikes.

Jaikes, once he learned that Adamowicz had a lawyer, said she needed to bring the lawyer to any meeting because he could not ethically meet her without him. He says she made no promises but that Zajac did show up with her.

It was at that meeting, that Jaikes says Zajac acknowledged he had done no research on the case and has no municipal law experience. Jaikes also said Zajac informed him that Adamowicz had been provided wrong information by DeBrito.

Asked for a comment about the way Adamowicz separated the creation of the form from research on which procedure to follow, Jaikes said: “I think it would have been wiser for (Adamowicz) to seek counsel on all the legal procedures,’ Jaikes said. “It’s a complicated statute.”

He also said that he does not know whether DeBrito did or did not convey the correct petition process to Adamowicz because he was not there. But he said that even if she had received the correct procedures, it would have been tight for her to collect the necessary 9,000 signatures, or 15% of the last vote, and have them certified in time for a November election. He outlined the procedures in a general way but said Adamowicz did not want to go through a two-year process.

Jaikes acknowledges that DeBrito may have tried to contact him in May seeking guidance on what was the proper procedure for Adamowicz to follow, but he said his legal staff is currently understaffed and they were tied up with end of the year fiscal issues.

Legally, the city is not required to engage in the process until the petitioner presents the signatures for certification, he said.

True enough, but one would expect that they could have given Adamowicz some general guidance on what are the various valid charter change options in a much more timely manner. Of course, Adamowicz in the month she was waiting for the city solicitor could herself have gone to the Secretary of State’s Office, or sought out some state office for guidance for information that she was not getting from City Hall. 

As for hiring a lawyer to research the whole process, Adamowicz points out that the city not providing charter change information seems to discriminate against people who cannot afford a lawyer. She thinks the city should do it for the applicant, but the mayor points out that instructions could put the city in a legally vulnerable position in today’s litigious society. 

Mitchell, who has said he was not involved in the petition process, also said on McCarthy and Ferro’s show that he is satisfied with the explanations of DeBrito and Jaikes and does not think an inquiry is needed. He defended both the city solicitor and Elections Office saying changing a charter is very complicated, and anyone trying to do it needs a lawyer.

“His job is not to dispense legal advice,” Mitchell said of DeBrito. “He may have made some suggestions, but at the end of the day, he said, ‘I”m not a lawyer; you should talk to a lawyer.”’

He said even though the city may dispense some general information on charter options, DeBrito may have simply been trying to be helpful to someone asking questions.

“He also couched what he said with ‘I don’t know. I’m (not) an attorney, and I’m gonna punt this over to the city solicitor’s office,’ which is what he did.”

By the way, changing a charter should be a difficult process, in my opinion. That’s the strength of a nation of laws, whether local, state or national. Going to a new system should require some consensus, knowledge of the law and significant number of signatures.

Asked if DeBrito had put the city in a legally vulnerable position, Jaikes said no. “I don’t think he’s endangered the city. I don’t think he’s deprived her of her rights. He may have provided her with information — if in fact that that’s what he did — with incorrect information. Again, I have to emphasize she had her own attorney.”

So there you have it. It’s been a negative experience for all the principals. 

There’s the folks who think you can’t trust the government and the government did them wrong. There’s the folks who think the expectations of government workers are unreasonable and they can’t win. And there’s the folks who analyze everything and divide us up to the good guys and gals and the bad guys and gals.

It’s the way things work in America these days.

Email columnist Jack Spillane at jspillane@newbedfordlight.org.

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