“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
— From the Declaration of Rights in the Massachusetts Constitution. Article 30

Old John Adams, who wrote most of the Massachusetts Constitution, was of course, a wise old guy.

It’s questionable, however, whether he could have foreseen a day when the state would have an annual budget in the tens of billions of dollars, and that state agencies like the MBTA and MassDevelopment would be in positions to run a massive government mass transportation system or to lend millions of dollars and choose private developers to run vital state infrastructure like the New Bedford State Pier.

My feeling, however, is that even if Adams could have foreseen the future, he’d have wanted the separation of powers to remain. Executives should manage the government; legislators should set policy and approve spending; judiciaries should decide what the law around it all means. Balancing power, so that no branch of government can dominate, is the American way.

The separation of powers is on my mind lately in the wake of the pointed charges that some members of the South Coast legislative delegation have leveled against actions that Mayor Jon Mitchell has taken in relation to an MBTA land-taking, and the way that Mitchell and MassDevelopment have coordinated in relation to the public bidding process for a private entity to develop the State Pier.

State Reps. Bill Straus and Chris Markey in particular have been greatly concerned that the mayor and state development agency are pushing the state not only into bad transportation policy but also to a potentially fiscally irresponsible one on the pier.

They have a point.

The way Mitchell has threatened to sue the MBTA over what, unfortunately, is its indisputably undervalued eminent domain taking, could have repercussions across the state for the T’s ability to upgrade and expand its passenger train and rapid transit systems in a timely manner by tying up the agency in the courts.

The city has claimed the T never even had any right to take the land because New Bedford was not yet a member of the MBTA district.

On the other hand, New Bedford, like other Massachusetts Gateway cities, is in a growing fiscal crisis with a commercial tax base that can no longer support a school, police and public infrastructure departments, never mind employee health care and pensions. The MBTA’s offer to the city of just below $500,000 for an amount of land near to similar properties that have either recently listed for sale at $6 million or sold for $8 million is outrageous. Mitchell would not be doing his job if he did not fight for more money for the land the T wants for its new downtown passenger rail station.

After years of fruitless negotiations, the mayor took out a big stick. If he had a better relationship with the delegation, or if he and the delegation were better at communicating with each other or advocating at the state level, it might have been different. Maybe the legislators could have made a case to the T on behalf of the city, as Sen. Mark Montigny has suggested. But the delegation and the mayor’s office do not work especially well together so it wasn’t to be. 

Also with a potential for large repercussions across the state is the way that Mitchell and MassDevelopment have collaborated on an RFP for the State Pier’s future development. That process, conducted behind closed doors before a public records request from the delegation revealed what was going on, could result in the pier being a more dynamic economic engine, but it also could result in a prohibitively expensive burden on the state.

As legitimate as the local legislators’ concerns are, it’s still hard to buy into their argument that they should have had a role in the bidding process itself. That is, in effect, what they are asking for when they say they should have been apprised of MassDevelopment’s deliberations as they went along.

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Avoiding political pressure from elected officials is precisely what MassDevelopment was designed for. Certainly, now that a provisional award to develop the pier has been announced — to Taber’s Wharf Partners — it is perfectly appropriate for the local legislators to comment about their concerns in the midst of the ongoing 180-day public comment period. The lawmakers have a role, and they are exercising their due diligence in complaining about the potential cost, and whether some of the bidders’ requests would be legal. It’s even within bounds to complain about the way the award came about without asking for their consultation.

Taber’s Wharf has proposed the idea of either a 99-year lease for the property or state subsidies in order for them to be able to amortize their loans. Their emails to MassDevelopment, obtained by the public records request, reveal that the development group also pitched a plan for the whole wharf, including moving current tenants to a long-term lease.

Both those plans would violate the enabling statute for the New Bedford State Pier awards process, and the Legislature would have to change the law to accommodate them. For their part, Taber’s Wharf says the licenses could be between the tenants and MassDevelopment, thus preventing them from controlling the whole facility.

Delegation members have also expressed concern that MassDevelopment, in choosing the provisional developer, worked with the city government but not with them, and that it had picked out a preferred developer, despite stating the process was still ongoing. The agency responded that New Bedford has a financial interest, but so, of course, do state taxpayers. More convincing is the argument that the agency is entitled to work with whatever parties it believes will be most helpful in developing the pier. It’s their call. Of course, they may want to call in the delegation just because they are dealing with politicians and will eventually need to work with them.  

I don’t know whether it’s legal or illegal to pick out a preferred developer before a contract has been awarded and work out details of what they will or will not do. You can argue that the bidding process, in order to be fair, should be blind to having provisional discussions with one applicant as opposed to another. But you can also argue that a contract-awarding agency must have some way of discussing what an applicant is willing to do and not willing to do, what they are capable of doing and not doing.

Again, the process for awarding contracts is primarily an executive branch role. Yes, it is both good politics and good policy to consult with the delegation. But that may not be the case in every circumstance, especially if there are competing agendas or philosophies at play, which in this case there could conceivably be because of competition between the fishing and wind industries.

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There’s also the matter of the Baker/Polito administration in all this.

The legislators haven’t publicly complained about them by name, but they unsuccessfully sought to have former Gov. Charlie Baker and former Lt. Gov. Karyn Polito intervene in the State Pier process in a Feb. 23 letter to the executive secretary of Housing and Economic Development, which oversees MassDevelopment. One assumes they are now making the same pitch to Gov. Maura Healey and Lt. Gov. Kim Driscoll.

Baker and Polito, however, never responded to the delegation’s pleas. Dan Rivera, the former mayor of Lawrence, who is the executive director of MassDevelopment, wrote them a subsequent letter that they are indeed welcome to be part of the process. I’m assuming he meant during the 180-day public comment period, because clearly they were not in the lead-up to the provisional award to Taber’s Wharf Partners.

For its part, MassDevelopment isn’t saying much. They sent me a brief statement saying they are committed to working “for the greatest public benefit” with all the stakeholders, including the Healey/Driscoll administration. 

There may be other issues at play here.

Two of the three applicants — Taber’s Wharf and New Bedford State Consortium — have partners that are well known business and political players in the region: Taber’s Wharf includes former New Bedford Port Authority director Ed Washburn, local restaurant mogul Steve Silverstein and BASE seafood auction director of operations Cassie Canastra. The Consortium’s partners include Andrews Saunders of Foss Marine Terminal; Lou Cabral, formerly of Mass Port Authority and an aide to Congressman Peter Blute; and James A. Barker of Seastreak ferry service.

State Rep. Chris Markey says the disagreements are just the culmination of multiple delegation disappointments in dealing with the mayor. 

For himself, he lists a lack of appreciation of what it took to press the delegation to convince the Legislature and governor to build the passenger rail line, the squeezing out of the delegation in the State Pier bidding, and a personal frustration he felt over what he thought was a commitment from Mitchell to help him with funding for the intersection of Route 6 and Hathaway Road in Dartmouth. 

Markey wanted funding for the interchange to be a part of the RFP for the planned Advanced Manufacturing Plant at Whaling City Golf Course, and he described detailed discussions he had with Mitchell and his Chief of Staff Neil Mello over it.

Markey is talking about the kind of old loyalty measures that many see as the mother’s milk of politics. For myself, when I hear that kind of discussion, I always hear echoes of political favors over good policy.

Mitchell and Mello describe it as merely a misunderstanding of the way the RFP process works. They were willing to include the Dartmouth interchange in a traffic study to be done after the winning bid was announced.  

Mitchell also insists he gave the delegation a heads-up on the possible MBTA lawsuit at a recent meeting, but even state Rep. Tony Cabral, who backs the mayor on the MBTA complaint, said there was not much information flowing from the mayor’s office. 

There seems to be a feeling in the mayor’s office that sharing information with some delegation members is a recipe for them to immediately begin working against the mayoral administration. Rep. Straus and the mayor have had a strained relationship for a long time, particularly over the development of the pier, with Straus over the years expressing concern of mixed uses crowding out the traditional working waterfront. Over time, however, he has accepted the plans for retail and restaurant-type development on the west end of the pier.

A lot of this seems pretty small-minded on both sides, no?

So yes, we need separation of powers. But no one said separation of powers means folks shouldn’t be talking to each other.

Email Jack Spillane at jspillane@newbedfordlight.org.

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