May 21, 2015

Attorney General Healey

Office of the Attorney General

One Ashburton Place

Boston, MA 02108-1508

ago@ma.us.gov

VIA ELECTRONIC DELIVERY and USPS

Attorney General Healy:

I write this letter in response to the correspondence you received on or about April 30, 2015, from Holyoke City Council President and attorney, Kevin Jourdain, seeking your opinion as to whether the contract (Settlement and Release) entered into between myself and the City of Holyoke (by and through its Executive) upon my resignation as City Solicitor, was ethical, legal and proper. I feel compelled to issue a formal written reply, as the inquiry itself casts aspersions on my character, and my reputation as a lawyer.

I highlight the fact that the Mr. Jourdain is an attorney, only in that an individual with any sort of legal training, especially one who has been a sitting member of the City Council for two decades, should possess at least a cursory understanding of the separation of powers that exist between the Executive and Legislative branches of this City; yet, the letter Mr. Jourdain wrote to you would suggest otherwise. Certainly the author of the letter to which I am responding, if not the sponsor of the order causing the correspondence, should be aware of the Executives absolute right to contract on behalf of the body politic, without the permission of the City Council. This is a well-known edict.

Despite declarations to the contrary, it was not a lack of transparency, but rather the assertion of myriad legal privileges, contractual obligations, and constraints, which prevented (and continue to prevent) the dissemination of the underlying facts giving rise to the contract. Despite this knowledge, you have been specifically asked to investigate [the] reasons underlying the contract, in an attempt to ascertain information that is not within the Councils purview. While the City Council may dislike the fact that this information is not at their disposal, it was rightly withheld. This type of specious action is not uncommon. Historically, the council has tried to usurp an ever increasing number of executive functions; however, the fact remains that this is a legal executive function under this Citys Charter and our general structure of government. It is important to note that the contract in question was drafted by a preeminent employment/municipal law firm, reviewed by myself, my attorney, the citys private counsel, and the citys legal department; all of whom, I would humbly suggest, possess far greater knowledge as to what constitutes a legal contract under the Citys charter and the laws of this state than the City Council or its president.

The City of Holyoke is modeled after a typical democratic form of government, with Executive, Legislative and Legal branches. Separation of powers exist, much like that found at the state or federal level. For your ease of inquiry, I include the following text:

The Holyoke City Charter Part I Sec. 2 entitled: Administration of affairs and government, except schools, vested in mayor and city council; separation of powers, states:

The administration of all the fiscal, prudential and municipal affairs of said city, with the government thereof, shall, except the affairs of the public schools of said city, be vested in an executive department, which shall consist of one officer, to be called the mayor,(emphasis added) and in a legislative department, which shall consist of a single body, to be called the city council, the members whereof shall be called councilors. The executive department shall never exercise any legislative power, and the legislative department shall never exercise any executive power, except as herein otherwise provided.

Part 2 Sec. 14. - Transactions by council or members in behalf of city prohibited, except in case of veterans' aid. States:

Neither the city council nor any member or committee thereof shall directly or indirectly take part in the employment of labor, the making of contracts the purchasing of materials or supplies, the construction, alteration or repairs of any public works, buildings or other property, or the care, custody or management of the same; or in the conduct of any of the executive or administrative business of the city, or in the expenditure of public money, except as herein otherwise provided and except such as may be necessary for the contingent and incidental expenses of the city council; nor in the appointment or removal of any officers except as is herein otherwise provided. (emphasis added)

The plain text makes clear that the Executive has the sole right to contract and to expend public funds, and the City Council shall not interfere in the making thereof (neither directly or indirectly), nor shall it attempt to exercise any executive powers; yet, this is exactly what it has attempted to do. Further, by asking you to investigate a valid contract, not within their purview, they have gone so far as to create a defamatory inference by suggesting some sort of potential wrong doing has occurred, because they were not privy to the underlying facts to which they were not entitled.

The City Council has held long and arduous hearings relating to the very issue they ask you to investigate. The tone and tenor of Mr. Jourdains correspondence seems to suggest some surreptitious payment was made, or some clandestine contract was entered into. In fact, anyone having read Mr. Jourdains letter or Councilor Sotos order may even come to the erroneous conclusion that I, alone, drafted the contract and that the Mayor simply signed it. That, of course, is not what occurred.

In reality, a carefully drafted contract was entered into whereby I resigned as Solicitor, a standard separation agreement with incorporated settlement and release was entered into by the parties, and a severance payment issued in consideration for the same. The funds used as consideration existed in the appropriate account, which was then assigned to a line item that already existed- entitled bonuses/settlement. None of these actions required City Council approval. Further, countless individuals were party to the evolution of this contract, all of which was revealed in their detailed and extensive hearings. Despite this, they would have you and the public at large, believe that because the legislative branch was not involved in this wholly executive function, that it was somehow corrupt.

The letter you received suggests that because the parties rightly invoked their legal privilege not to disclose sensitive information, that the process is tainted or disreputable. Since the council failed to get the particulars they sought, despite the attainment all of the information that they were entitled to, they now endeavor to manipulate your office into breaching these privileges, granted to the parties by law and contract: The investigations should focus on the reason(s) the payment was made to guarantee that it was made in the best interests of the tax payers of City.

Councilor Sotos order, and Jourdains letter suggest that they now urgently require your assistance and your assurance that there was nothing unethical, illegal, or improper about the contract, when in fact, the letter you received was drafted a full year from the time of my departure from the City. If there was any genuine question as to its legality or ethical acceptability of the contract, one would think they would have been brought this matter to your attention long before now.

Interestingly, the requesting inquiry was drafted only when reporting on the topic had finally come to an end, and in temporal relation to when political candidates began organizing their campaign platforms for the next, upcoming election. I do not believe it is a coincidence that the order seeking your opinion on this matter was filed by the very City Councilor (Soto) who recently announced his bid to run for Mayor against the incumbent and signatory to the agreement and, was drafted by the City Council President and longtime vocal opponent of the Mayor; the self-proclaimed fiscal watchdog, also running for reelection.

I find this entire inquiry disingenuous and believe that if anything, what should be investigated is whether this inquiry was maliciously or politically motivated so as to result in personal political gain, and whether in doing so, the drafters of both the letter and the original order have abused their collective powers, ethical oaths, and duties in contravention of the Massachusetts State Ethics laws. If anything, it is the City Councils inquiry should be examined to ensure that the Councilors are not using their position in an unethical, illegal and improper manner.

It should not be overlooked that it was a fait accompli that the letter you received would be printed in the paper a form of free press, if you will. It is important to understand by way of background, that the topic of my separation from the city has been prolifically, and at times inaccurately reported on by local news, with spectacular and contemptible theories espoused as to the potential reason(s) for my departure, most of which having little or no basis in reality.

The very tone and tenor of the correspondence reads as if addressed to voters, rather than the Attorney General. In fact, two weeks prior, it had been reported that the letter had not yet gone out. Then, not surprisingly, an article including the letter requesting your inquiry was printed in the paper less than twenty-four hours from its transmission to you. In my experience, it is typically not the job of the attorney general to make value judgments as to whether executive spending is in the best interest of the taxpayers, or to help subvert legally asserted privileges outside of the councils purview - yet this is what you have been asked to do. I feel confident you will examine these matters fully.

Thank you for your time and attention to this matter,

Heather G. Egan, Esq.

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