Massachusetts High Court Uses Municipal Separation of Powers Theory In Review of Police Abuse Reforms
Written by Samuel Myers, J.D., Georgetown University Law Center, 2022
One of the most urgent, visible, and protested issues in the United States is unjustified police violence against Black individuals—and how it can be prevented. Whether in a given municipality the mayor or the city council ultimately has the authority to change the leadership of a local agency from a one- to five-person commissionership, on the other hand, is a subject unlikely to attract much attention. But a recent decision from the Supreme Judicial Court (SJC) in Massachusetts demonstrates that these kinds of separation of powers issues can be linked to the most important social justice challenges of our day. In fact, City Council of Springfield v. Mayor of Springfield, SJC-13154, slip op. (Mass. Feb. 22, 2022), proves that some of society’s most urgent and visible problems can only be tackled effectively if advocates for reform are cognizant of these drier and hidden aspects of state and local government law, echoing what happened in Minneapolis in the wake of George Floyd’s murder, when the progressive mayor and his even more progressive city council clashed over police reform.
In an effort to increase accountability in the Springfield Police Department (SPD), the city council of Springfield, Massachusetts, voted twice (in 2016 and 2018) to replace the single police commissioner with a five-member civilian board that would make decisions related to hiring, firing, and disciplining personnel. Both ordinances were passed over the vetoes of the mayor, who wanted to leave the police department to the “professionals.” The mayor maintained this position and refused to appoint members to the commission even after his vetoes had been overturned and the United States Department of Justice released a report in 2020 concluding that the SPD’s “Narcotics Bureau officers engage in a pattern or practice of excessive force in violation of the Fourth Amendment of the United States Constitution” and that the “pattern or practice of excessive force is directly attributable to systemic deficiencies in policies, accountability systems, and training.” City Council of Springfield, SJC-13154, slip op. at 15.
The mayor had a stronger legal basis for his intervention than was initially apparent. What seemed to be brazen, undemocratic resistance to the city council and community’s wishes to increase accountability in a police department with extreme excessive force issues turned out also to be an unsettled question of the distribution of power in strong-mayor systems that required resolution in the Supreme Judicial Court of Massachusetts. Specifically, it was unclear whether the mayor had to abide by the city council’s reorganization of the SPD because in Massachusetts, as in many states, city governments are organized in various configurations, each with a slightly different take on which branch of government ultimately calls the shots on issues like these.
There are technically at least six kinds of municipal governments that Massachusetts statutes allow—known as “Plans,” from A to F. Some municipalities are run mainly by the city council, others by the mayor (like Springfield and Boston), and still others by a city manager (like Cambridge, where the manager’s power has been described as “near-absolute”) or multi-member commission. Some towns in Massachusetts are still, to varying degrees, run by old-fashioned, New England-style town meetings. An example is Brookline, whose official form of government consists of a 248-member Representative Town Meeting (but whose legislative powers are mainly vested in its five-member Select Board and whose day-to-day administration falls to the Town Administrator appointed by the Board). The plans vest varying degrees of power in the executive and legislative branches—and in the case of city managers, civil servants—and are essentially experiments in democratic government and separation of powers.
Springfield has a “Plan A” or strong-mayor system, which means that, per the city charter, the elected executive of the city can take a range of actions without city council approval. Of particular relevance here, the Mayor of Springfield is allowed, by city charter, to “appoint ‘all heads of departments and members of municipal boards’ without approval from the city council.” City Council of Springfield, SJC-13154, slip op. at 2. This is the maximum grant of mayoral appointments power contemplated by Massachusetts law, in contrast to, for example, Plan B systems, in which “all heads of departments and members of municipal boards … shall be appointed by the mayor, subject to confirmation by the city council,” Mass. Gen. Laws ch. 43, § 60, or Plan D systems, where the city manager is “responsible for the administration of all departments, commissions, boards and offices of the city” and makes all relevant appointments, Mass. Gen. Laws ch. 43, § 89, and the mayor has essentially no power at all.
At first glance, then, it might seem plausible that the mayor had a legitimate gripe: if the respective powers of the two branches meant the mayor is unfettered in making appointments to city departments, wasn’t the council’s decision to completely alter the SPD a usurpation of the strong mayor’s prerogative? Not quite. While a strong mayor is entitled to appoint and remove department heads and commissioners without approval from the city council, it is the council that retains the power to “reorganize, consolidate or abolish departments, in whole or in part.” Mass. Gen. Laws Ann. ch. 43, § 5. City councils in Massachusetts possess this power regardless of which Plan a municipality adopts, at least until a city’s charter explicitly says otherwise. Springfield’s charter never did. See City Council of Springfield, SJC-13154, slip op. at 3. Put differently, the mayor is not supreme when it comes to questions of how the SPD will be “organized”—including if it will be run by a one-, five-, or even 248-person commission—or whether there will be a police department at all. That power is the city council’s.
Yet the city council can do no more to reform the police department than determine its organizational structure, since a strong mayor has plenary authority to appoint and remove commissioners. In municipalities with less-centralized and -layered power systems than Springfield’s, such barriers may not exist—for instance, Brookline’s five-person Select Board voted to ban the use of chokeholds by the town’s police department almost a year before such a law was passed state-wide in Massachusetts and no one resistant individual could stand in its way. In strong-mayor systems, on the other hand, the city council’s power to organize departments can be limited in many ways. Indeed, though the Supreme Judicial Court held that the Springfield city council was the proper authority to determine the SPD’s structure, the Court did rule for Springfield’s mayor in striking down the “the eligibility criteria for board members” the city council had included in its ordinance, because it “violated the mayor’s appointment authority under the charter.” City Council of Springfield, SJC-13154, slip op. at 6. In other words, while a strong mayor alone cannot stop the city council from instituting some reforms of the SPD, the power to appoint commissioners ensures that the mayor will have a substantial role in shaping the new five-member board. As the SJC put it, “[t]he division of powers here reflects the mutual responsibility and ultimate accountability of the executive and legislative branches of municipal government over policing in their city.” City Council of Springfield, SJC-13154, slip op. at 17. Whether decentralizing the power at the top of the SPD will itself lead to increased accountability remains to be seen.
Advocates for accountability may be discouraged that it took four years after the city council instituted the SPD board structure to vindicate a reform that an unsympathetic mayor could derail through the appointments power. Experienced organizers might say that’s how reform goes—slowly, and not quite surely. In either case, Springfield’s efforts to increase accountability in its police department will continue to depend on the structure of its local government and the distribution of power between the city council and the mayor.