Since the Newton Board of Aldermen’s Public Facilities Committee began floating their proposed snow shoveling ordinance recently, more questions than answers have arisen as to exactly what a snow shoveling ordinance would mean for Newton homeowners.  Not only with regard to actual snow removal, but with regard to liability.  Many have wondered aloud:  Will this ordinance mean that I’m now liable for the snow that accumulates on my sidewalk?  Has recent Massachusetts case law mandated that I shovel my sidewalk regardless of this ordinance?  What are my responsibilities as a property owner going forward?

Unfortunately, the snow shoveling ordinance has become a political issue, and it has become difficult to get clear answers to what seem to be straight-forward questions.  The following is an attempt to clear up several misconceptions that I have heard not only in the community, but also from members of the Board of Aldermen, and from the city solicitor’s office.

This confusion does no one any good.  If this ordinance passes – and I support it – it should pass without exaggerating the effects of recent case law surrounding snow and ice liability in Massachusetts.  There are many good reasons to pass such an ordinance.  Not hitting school children with your car as you drive to work after a snowstorm when the little buggers are walking in the street has to top the list, right?

You’d think so, but that rational doesn’t seem to be enough.  Many proponents of the ordinance point to recent Massachusetts case law, namely Papadopoulos v. Target Corp., which has altered long-standing theories of liability with regard to snow and ice liability. On more than one occasion in that past two months, I have heard members of the Warren administration, the League of Women Voters, and members of Newton Safe Sidewalks, assert that Papadopoulos stands for the proposition that property owners may now be liable for snow and ice accumulation on abutting sidewalks.  And if these unsuspecting property owners don’t shovel their sidewalks, they’ll soon find themselves staring across the courtroom at a scary guy like me – the dreaded plaintiff’s lawyer!

The confusion doesn’t stop there.  I have also heard an opposite theory about the resultant liability of passing this ordinance. Namely, that once Newton homeowners are forced to shovel their sidewalks, they will become liable for anyone that slips and falls if they don’t do a thorough enough job.

Neither theory has any basis in fact, or any case law to support it.  Unfortunately, the city solicitor’s office has, in my opinion, done a terrible job of clearing up these misconceptions, and may actually be adding to the confusion. 

Massachusetts case law is relatively straightforward on this issue.  The holding in Papadopoulos was that a property owner has a duty to keep his property reasonably safe for lawful visitors regardless of the source of the danger, whether that danger is snow, ice, or an errant banana peel.  It abolished a former distinction in Massachusetts case law between natural and unnatural accumulations of snow and ice for liability purposes.  This actually helped to clear things up, not add to the confusion.  Do you know what an “unnatural accumulation of snow or ice” is?  Me neither.  Papadopoulos is completely silent as to a property owner’s responsibility for abutting public property.

Massachusetts case law is also fairly clear on the liability of the property owner for snow and ice removal to third party pedestrians where the property owner lives in a municipality that has a snow removal ordinance.  Massachusetts courts have repeatedly found that a snow shoveling ordinance does not inure liability to the homeowner for slips on an abutting sidewalk by the unfortunate passerby.

Still confused?  I don’t blame you.  I think I can help explain.  First, let’s talk about snow and ice liability as of this past winter, and what has changed since Papadopoulos.  Then we’ll tackle the snow shoveling ordinance. 

The Old Rule

The author shoveling during the olden days.

When I was an insurance defense associate, you couldn’t possibly hear it enough: there is no liability in Massachusetts for the natural accumulation of snow and ice.  And, let’s face it, since 99% of all snow or ice slip and falls result from natural accumulations of snow or ice, the so-called Massachusetts rule was a blessing to insurance defense guys all over the state.

And it was convenient for property owners, too.  You had absolutely no duty whatsoever to clear snow off your property after a storm.  Hey, it’s New England!  It snows here!  Deal with it!  Never mind the fact that the mail man has to scale your treacherous Comm. Ave, Wall-of-Mordor stairs to deliver your Frederick’s of Hollywood catalogue while you down another Stella Artois after yet another New England ice storm.  Thems the breaks.

The “Massachusetts Rule” declaring that no liability extends to natural accumulations of snow or ice had its origins in 19^th century premises liability law.   Nearly 200 years ago, a landowner’s obligation to those who visited the property depended on the status of the visitor.  Were you a guest?  A trespasser?  An invitee?  A landlord had a duty to the tenant to only remove defects from property that he had “put there”, but not defects that occurred “naturally.” As years went by, the common law shifted to something a little more… humane.  With the exception of trespassers, all lawful visitors to a property are now treated similarly, and a landowner owes a duty to keep his property reasonably safe for lawful visitors regardless of the source of the danger.

Except for one thing.  The “natural” defect rule in Massachusetts case law remained with regard only to snow and ice, although seemingly for reasons that defy explanation (for an excellent, but probably pretty boring to a layperson, explanation of the history of the Massachusetts rule, read the Papadopoulos decision.)

Although the Massachusetts Rule was convenient for property owners, it was exceedingly difficult to apply in practice.  What, exactly, is an “unnatural” accumulation of ice or snow?  Repeatedly, I saw plaintiff’s lawyers try to argue that the act of shoveling snow had somehow turned “natural” snow into “unnatural” ice.  And of course this is all counter-productive since you want people to shovel to remove snow and ice so that people don’t slip and fall to begin with. 

Finally, in Papadopoulos, the Massachusetts Supreme Judicial Court had enough and did away with the “Massachusetts Rule” altogether, bringing Massachusetts in line with the rest of New England, and most of the rest of the country.

What Did Papadopoulos Do?

It’s all pretty simple, really.  Papadopoulos turned snow into the proverbial banana peel.   Today, the exact same rules that apply to any other defect on your property now apply to snow.  What’s so hard about that?  Imagine for a moment, you dump a pile of banana peels onto your walkway, and someone comes to visit you and slips and falls and hurts themselves on the peels.  You’re in some trouble. 

Imagine for a moment, however, if banana peels magically fall from the sky onto your sidewalk.  Do you have any liability for those peels?  No.  Why? You’re not in control of your sidewalk.  It’s not your property.  You didn’t put the peels there.

Easy, right?

You know what Papadopoulos didn’t do?  It didn’t make you responsible for the sidewalk in front of your property.  There are 6,189 words in the Papadopoulos decision.  The word “sidewalk” is mentioned zero times.

In Papadopoulos, the Plaintiff was injured when he slipped and fell on a patch of ice in the parking lot of the Liberty Tree Mall in Davnvers, Massachusetts.  He filed suit in the Superior Court against the Defendant, Target Corp., which controlled the area of the parking lot in which the Plaintiff fell.  The Plaintiff lost in the lower Courts, but was vindicated when the SJC took his appeal and abolished the long standing Massachusetts rule adhering to the distinction between liability for natural and unnatural accumulations of snow and ice. 

Papadopoulos stands for the proposition that a property owner has a duty to keep his property reasonably safe, regardless of whether the threat to that safety comes from “natural” snow or otherwise.  It stands for the proposition that the “Massachusetts rule” was unworkable, and a relic of days gone by.  It stands for the proposition that “if a property owner knows or should know of a danger on its property, whether arising from accumulation of snow or ice, rust on a railing, or a discarded banana peel, [that] the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against dangers.”  See Papadopoulos v. Target Corp., 457 Mass. 368, 383 (2010)(emphasis added).

But wait, you say.  This is New England.  It snows here all the time.  Or, at least it used to.  Is liability really practical in snow and ice cases?  Well, the SJC considered and rejected that argument, noting that abolishing the “Massachusetts rule” actually brings us in line with each and every other New England state.  The SJC even quoted the Supreme Court of Rhode Island in its decision.

“We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain. We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord because he has failed to take adequate precautions against the hazards that can arise from the presence of unshoveled snow or unsanded or salt-free ice found in the areas of his responsibility but yet hold him liable on a year round basis for other types of defects attributable to the workings of mother nature in the very same portions of his property.”

Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(Emphasis added).

Bottom line?  According to Papadopoulos, you have to go out and shovel your property in a reasonable manner.  The key words in that last sentence?  Your property.

Liability Under the Snow Shoveling Ordinance?

Now that we’ve established that Papadopoulos has not created liability on behalf of the homeowner for their sidewalk, we can address the next

I've fallen and I can't get up

question: Will a snow removal ordinance itself create that liability?

Simple answer?  No.

This question was actually addressed years ago in a case called Gamere v. 236 Commonwealth Avenue Condominium Association, 19 Mass.App.Ct.359 (1985).  In that case, Gamere, the plaintiff/pedestrian, was walking along Comm. Ave in Boston in front of a property owned by the Defendant.  It was cold, dark, icy, and the city of Boston happened to have a snow removal ordinance in effect.  Wouldn’t you know it, Gamere slipped, fell, broke his ankle, and sued the City and the abutting property owner for damages.  He claimed that the property owner had an obligation to clear the snow and ice under the ordinance, and as a result of their failure to do so, he suffered his injuries.

Not only did the court disagree, but it forbade Gamere from even introducing the ordinance into evidence. 

“Generally, a violation of a statute or ordinance is some evidence of negligence as to all the consequences it was intended to prevent, where its violation caused or contributed to the injury.” Gamere, 19 Mass. App. Ct. at 361.  “But it has been held that ordinances which require householders to remove snow and ice from sidewalks are for the benefit of the community at large, and not for persons who fall as a result of snow and ice. Any obligation imposed by the ordinance runs to the municipality and not to a member of the travelling public.  Id. at 362 (citations omitted).

In other words, if you don’t shovel your sidewalk and run afoul of the ordinance, the only one who has a beef with you is the City, not the guy who falls on his backside in front of your place.  In order to have negligence, you need a duty and a breach of that duty.  Your duty under the ordinance runs to the City, not to the passer by.

This issue was addressed again in a case called Goulart v. Canton Housing Authority, 57 Mass.App.Ct. 440 (2003).  In Goulart, the plaintiff was a visiting nurse who, in the course of treating a patient at a property owned by the defendant municipal housing authority, slipped and fell on icy stairs.  She brought suit complaining that the city’s application of salt had turned natural ice into unnatural ice, that the ice had been there so long that the city should have done something more about it, and that the city had violated its own snow removal ordinance.

Here, it’s best to let the Court speak for itself:

“The plaintiff argues that applying salt changed the condition of naturally accumulated snow and ice so as to create a hazardous unnatural accumulation. This is a relatively novel theory, especially since in jurisdictions where reasonable efforts must be taken to remove the hazards posed by snow and ice, the usual suggestion is that a defendant might be negligent not for applying salt, but for failing to apply it. See, e.g., Christianson v. Kramer, 255 Iowa 239, 246, 122 N.W.2d 283 (1963); Raff v. Acme Mkts., Inc., 247 Md. 591, 598, 233 A.2d 786 (1967); Maxwell v. Lewis, 186 Neb. 722, 186 N.W.2d 119 (1971); Filipiak v. Plombon, 15 Wis.2d 484, 488, 113 N.W.2d 365 (1962).

In Massachusetts, it is clear that not every human act or failure to act-not even those which that foreseeably increase the risk of mishap-transforms a natural accumulation of snow and ice into an unnatural one, so as to permit a finding of liability. For example, piling snow uphill of a walkway onto which it then melts and refreezes is not grounds for a finding of negligence in Massachusetts. See Cooper v. Braver, Healey & Co., 320 Mass. 138, 139-140, 67 N.E.2d 657 (1946). Neither is incomplete shoveling that removes snow but thereby exposes a thin layer of ice covering a ramp. See Sullivan v. Brookline, 416 Mass. at 828 & n. 2, 626 N.E.2d 870. Given that landowners who engage in these activities have been insulated from liability, we cannot rule that those who salt should be subjected to it.

Our conclusion finds general support in the few jurisdictions that have addressed whether applying salt can open landowners to liability for negligence: in Illinois and Michigan, defendants may not be held liable for salting, see Harkins v. System Parking, Inc., 186 Ill.App.3d 869, 872-873, 134 Ill.Dec. 575, 542 N.E.2d 921 (1989); Zielinski v. Szokola, 167 Mich.App. 611, 621, 423 N.W.2d 289 (1988), overruled on other grounds by Robinson v. Detroit, 231 Mich.App. 361, 586 N.W.2d 116 (1998), although in Delaware, a jury could find salting negligent if unreasonable in the circumstances, see Robelen Piano Co. v. DiFonzo, 53 Del. 346, 354-355, 169 A.2d 240 (1961). As explained by the Court of Appeals of Michigan, “[w]e do not view the application of salt to an icy surface as the introduction of a new hazard … Salting does not create a hazard, instead it only alleviates, albeit temporarily, a hazard that already existed. For this reason, liability should not attach merely because the powerful forces of nature reassert themselves and a salted surface refreezes.” Zielinski v. Szokola, supra. See generally Riccitelli v. Sternfeld, 349 Ill.App. 63, 67, 109 N.E.2d 921 (1952) (“In one sense, a dangerous situation is created, but much less dangerous than would be created if no one undertook to do anything…. The general assumption is that the industry displayed by citizens removing snow after a snowfall is desirable, if not necessary”). We are persuaded that the rationale of the Michigan and Illinois cases is most compatible with Massachusetts doctrine.

 The plaintiff’s other contention is that the defendant’s written snow removal policy provides an independent basis for liability. Assuming, without deciding, that the language of the policy required that the ice be cleared from the landing at issue, this argument still fails. Violation of an ordinance requiring that walks be cleared of snow and ice does not create a duty in a plaintiff where one does not exist independently.”

Goulart v. Canton Hous. Auth., 57 Mass. App. Ct. 440, 442-44, 783 N.E.2d 864, 867-68 (Mass. App. Ct. 2003)

The Goulart case is significant in three respects. First, it seems to entirely refute the proposition that a violation of an ordinance would inure any liability on the homeowner.  Second, it stands for the common sense proposition that the act of removing snow, even if you’re doing it badly, is not going to make you liable if someone slips and falls.  Finally, it shows that Massachusetts courts are again looking to precedent from other states to determine what ought to be considered reasonable in Massachusetts.  Massachusetts is not, as the solicitor’s office would have you believe, unpredictable.  Quite the opposite.  We are now in line with other jurisdictions repeatedly cited by the courts.

Some might suggest that the Goulart court was merely asserting that shoveling does not, in and of itself, turn natural accumulations into unnatural accumulations, and that the Court might find differently today.

Perhaps.  But I don’t find that logic persuasive.  The Goulart Court, as well as the Papadopoulos Court, went out of their way to reference standards from other jurisdictions that do not punish property owners for attempting to remove snow and ice dangers.  And remember, the Goulart court was considering the presence of liability in an instance where there was alleged to be an unnatural accumulation of snow or ice, which then carried with it the same liability as any presence of snow or ice does today.

Conclusion

You can never predict which way the law is going to go.  The common law is always shifting.  However, it appears very safe to say that Papadopoulos does not stand for the proposition that homeowners are now liable for the accumulation of snow or ice on their sidewalks.  It also appears exceedingly unlikely, based on Massachusetts precedent, that a snow shoveling ordinance will inure liability to homeowners for third party passersby.

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Author’s note:  Correction made to the last paragraph, third sentence, striking the work “properties” in favor of the word “sidewalks.”  Thank you to the astute reader who brought this to my attention.  2/11/11

It’s an interesting theory, and a fascinating political story, because it’s wrought with intrigue.  Mountain, who was a candidate for School Committee in Ward 8, was running against Margie Ross Decter, who is nearly universally liked and respected in Newton.  Anti-Establishment forces, led by Emily Norton and the Political Action Committee to Elect Great School Committee Members seeking to wrest control of the school committee from the dreaded Establishment, put together a slate of candidates, publicizing their slate days before the election.  The slate included the school committee “Challengers,” Margaret Albright (Ward 2), Dan Proskauer (Ward 4), Steve Seigel (Ward 5), Olivia Mathews (Ward 6), Matt Hills (Ward 7), and Decter in Ward 8.  Decter… over Mountain.

Mountain, upset that his oft-political allies in the PAC inexplicably chose Decter over him in their slate, allegedly sent out an e-mail to approximately 1,000 conservative supporters asking them to support Setti Warren, knowing that most in the PAC had come out for Ruth Balser.

24 hours later, Setti Warren beat Ruth Balser by 463 votes.  According to Mountain, his e-mail to the 1,000 conservatives-in-the-wood-work put Warren over the top.  Post hoc, ergo propter hoc.

But did Moutain’s e-mail really secure Warren’s victory?  The truth is, we’ll never know.  We don’t have exit polls in local elections, so we don’t have hard data to prove or deny that theory.  All we have, in the words of Mr. Spock, is a theory that happens to fit the facts.

Are there, as Mountain suggests, legions of social conservatives in Newton who will sway an election one way or the other at their whim?  I took a look at the federal and state election results of the past few years to get some answers.

Not surprisingly, in both the 2004 and 2008 Presidential elections, Newton voted Democrat by approximately a 3-1 margin.  In both elections, of Newton’s 32 precincts, not a single precinct was won by the Republican ticket.  In both 2004 and 2008, the largest margin of victory between Democrats and Republicans came in Ward 6-3 (1,157 votes in 2008, 1,064 votes in 2004).  By that measure, you might say Ward 6-3 is Newton’s most liberal precinct.

Where, then, by the same measure is Newton’s most conservative precinct?  That would be Ward 1, Precinct 4.  Better known in Newton as Nonantum, or to its friends, The Lake. 

In 2004, Ward 1-4 voted for Kerry/Edwards over Bush/Cheney, 691 to 375, by a margin of 316 votes, or 65% to 35%.  In 2008, Obama/Biden beat McCain/Palin, 668 to 411, by a margin of 257, or 62% to 38%.  Now, call me a divia mush, but that’s not exactly what I would call “conservative.”  What I would call that is “the rest of the country.”  It just seems conservative when you hold it up to the rest of Newton.

Just for kicks, let’s look at the 2006 Massachusetts gubernatorial statistics.  In ward 6, precinct 3, Patrick/Murray beat Healey/Hillman, 1000 to 85.  In ward 1, precinct 4, Patrick/Murray beat Healey/Hillman 380 to 279.  99 votes!  Again, not “conservative”… but not moon-bat liberal, either.

If Mountain’s theory holds true, and “conservatives” put Warren over the top, you would think you would see The Lake break heavy for Setti Warren.  Did it?

Not at all.

Warren and Balser nearly split the vote in Ward 1-4, with Warren taking it 226 to 200.  Ward 1, Precinct 1, with largely similar statistics to 1-4, held similarly, with Warren eeking by Balser 289 to 234.   Ward 6, precinct 3, our famously liberal precinct, also came in close, with Ruth beating Setti 480 to 398.

In fact, liberal and conservative ideology appears to have played little, if any, role in the municipal election, as far as we can tell from the election results.  After all, it’s a local election, and there is nothing inherently conservative or liberal about a pothole, as we’ve noted before.  As such, it seems that Tom Mountain’s theory is an interesting one, but remains just a theory.

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If Tom was off with regard to legions of conservatives putting Setti Warren into office, he might be onto something if we substituted our local political spectrum for his traditional conservative orthodoxy.  

After all, the Lake was the only neighborhood in the city that Tom Mountain actually won.  He beat Margie Ross Decter 186 to 143.  In fact, Ward 1-4 was the only precinct in the entire city where the all of the school committee challengers won.  Ladies and gentlemen, we have located the capital of Angry Newton, and it is The Lake.

Now, lest you accuse me of slighting The Lake by saying the people there are “angry” (I see you over there. Step away from the keyboard), I’m not.  For whatever reason, folks in The Lake feel marginalized – according to election results, anyway.  While they were the only precinct, of 32, to vote for every single challenger, this isn’t the first time they’ve shown Anti-Establishment tendencies in local elections.

In 2007, they voted heavily in favor of Alderman (then “challenger”) Greer Tan Swiston, who beat hardcore Traditionalist Leslie Burg for one of two Ward 3 Alderman-At-Large seats.  That same year, they also gave Tom Sheff, Geoff Epstein and Jeff Seideman their votes.  In 2005, Mike Striar saw his biggest precinct wins in Ward 1.  In 2007, the Newton North Site Plan referendum went over like a lead balloon in The Lake, earning defeat in Wards 1-1 and 1-4 by a combined total of 338 to 230.

And, of course, last year’s override proposal was whooped by a Belichick-era score of 445 to 86 in Ward 1-4.

What does all this mean?  Well, for starters I think it means that Mayor-Elect Setti Warren’s agenda is more tied to The Lake than anyone realizes.  If building a plan to move forward out of the financial mess that Newton finds itself in requires any type of community-wide consensus, that consensus is going to be hardest to reach between Ward 1 and the rest of the city. 

And I totally sympathize with that neighborhood.  It’s just different than the rest of the city.  They’re disenfranchised.  They’ve got one great alderman, one octogenarian, and another who can’t make meetings on time.  No offense.  They clearly weren’t on board with the Cohen administration, and any time you have a neighborhood that’s this much of an outlier, it can cause problems.  For the whole city. 

The recent election results from Ward 1 were good for Setti Warren in at least one way:  The Lake seems ambivalent toward him.  And judging from past mayoral election results over there, that’s probably a pretty good starting point.

WINNERS

Deb Shah – To be honest, I’m still confused as to what her title was with Setti Warren’s campaign.  Campaign strategist?  Consultant?  Whatever.  She was both the brains and the brawn behind Setti’s grassroots strategy.  Setti’s strategy was markedly different from Rep. Balser’s, which relied on press releases, institutional support from local Democratic heavy hitters, and a daunting campaign war-chest.  Deb took a guy with little money and a funny name and made him mayor. After shepherding both State Representative Sonia Chang Diaz and Setti Warren to victory, there may not be a hotter or more talented political strategist in the state.

Alderman Ted Hess-Mahan – What Deb Shah brought to the Warren camp in terms of campaign strategy, Ted matched with his intimate knowledge of Newton’s issues, performance management policy, and the local political scene.  Trent from Swingers would call him, “The guy behind the guy, behind the guy.”  I was present at more than one meeting where I thought, “Man, Ted could easily run for mayor and win.”  He was invaluable.  If Ruth Balser or Ken Parker ever scratch their heads and wonder how they lost to Setti Warren, really they should know that in some ways, they lost to Ted Hess-Mahan.

Claire Sokoloff – Aside from actually, you know, winning her race against perhaps the best of the “challengers” to the school committee incumbents in Olivia Mathews, Claire may well be the favorite to succeed as School Committee Chair.

Emily Norton – Yes, her “slate” of school committee candidates lost.  But she didn’t.  Like it or not, Emily Norton is now a player.  She, and her slate, will be back.  The question is:  what lessons will she take from this loss?  That she wasn’t “loud” enough, or that politics requires a little more finesse?  Time will tell.

Amy Sangiolo - She stayed out of a race she was sure to lose, remained neutral after the preliminary, and has positioned herself to be Ken Parker to Setti Warren’s David Cohen for what are sure to be four financially difficult years in Newton.  An ”Amy Sangiolo 2013″  mayoral campaign looks fairly certain at this point.

The TAB Blog – You have to hand it to them, Gail Spector and Greg Reibman ran quite a show over there for the past year.  I suspect that the Blog wasn’t quite the kingmaker that Greg hoped it would be, and the Newton’s Next Mayor blog flopped, but in terms of being the premier on-line community forum, the TAB Blog was it.

Traditional Reformists – The Trad Reformists had a great day on November 3.  Balser and Warren trumpeted the CAG report, as well as performance management in the service of Newton’s traditionalist liberal values centered on education, and community services.  They also saw nearly all of their candidates elected, with only Sue Flicop losing out to Matt Hills.  And Hills isn’t exactly Anti-Establishment either.  He simply brings a much needed private out-look to a school committee accustomed to doing things a certain way.

The Prizblog – Obviously.

LOSERS

Geoff Epstein- Geoff had a bad relationship with his fellow school committee members before the campaigning started.  It only got worse when he actively campaigned to have most of them replaced.  Now that his gambit failed, Geoff is on an island.  Before you get huffy and remind me about how democracy is supposed to work , remember this:  We elected Geoff to be an advocate for his cause in our schools.  How has this affected his ability to reach out, effect change, and be a credible advocate that his peers will want to listen to and work with? 

Jeff Seideman – Greater Newton has once again rejected Angry Newton’s ambassador.  That’s twice now.  Counting the override and the high school referendum, he’s 1-3.

Lisle Baker – Unlike Alderman Sangiolo, who had nothing to lose by staying neutral and cultivating her base of support, Traditionalist Lisle Baker is now faced with an in-coming administration that he didn’t exactly oppose, but chose not to support, along with five new aldermen, and a shrinking base of support for his presidency.

Newton 20/20 – The group that was going to redefine politics in the city is left to consult their David Osborne how-to manuals.  The Anti-Establishment Reformists were dealt somewhat of a surprising blow.  Particularly surprising to them, it seems.  That’s what happens when you read too much of the Newton TAB blog.  You start to forget that people really like it here.

Shawn Fitzgibbons – Ken Parker’s campaign manager.  The “Blueprint” strategy fizzled, and when Ken was out, he endorsed Ruth.  Then Ruth lost.  But that’s not what get’s him into this category.  It was the absolutely senseless, strangley xenophobic message coming from Shawn and the Parker campaign early on that monetary contributions to candidates coming from outside of the city were something to fear.  As though young black professionals around Boston, who were psyched about Setti’s candidacy, were somehow evil interlopers.  And this from a guy who is involved in the Newton Democratic City Committee – a Committee that actively encourages its volunteers to go out-of-state to campaign for Democratic Congressmen and Senators.  A committee that also actively encourages those volunteers to give money to out-of-state causes and candidates.  Dumb.  So, so dumb.

Bill Brandel - Poor Bill.  In retrospect, choosing to forgoe his incumbent Ward 5 Alderman position to run for the Ward 5 Alderman-At-Large spot against Deb Crossley, and incumbent Brian Yates, was a politcally terrible idea.  It would have been much easier to defend as an incumbent against John Rice in the Ward Alderman race.  Bill was well respected for his work as Ward 5′s alderman, and there was simply no political upside to being an Alderman-At-Large as opposed to just being a Ward Alderman.  Once elected, the job is precisely the same.  Now, you can argue that maybe it shouldn’t be.  But you could also argue that Bill Brandel would still be an alderman had he not decided to make a move with no upside, and a lot of downside.

Word on the street is that Bill simply didn’t campaign as hard as Crossley and Yates did.  In a citywide At-Large race, you need some type of base of support to have a shot.  Crossley had a lot of activists that liked her, and respected her work in affordable housing.  Yates was an incumbent, and has a fiercely devoted following of longtime residents.  Bill?  Stripped of his incumbency, he was kind of the odd-man out.  Had he run a better campaign, he might have made the case for himself as everyone’s second favorite candidate in that race.  In a three person race for two seats, that would have sealed a victory for him.

I’m not buying into the theory espoused by some that Bill abandoned his base to support Setti Warren.  Much of his base ended up in the same place, and many of Warren’s supporters, myself included, voted for Bill.    Personally, I hope he’s back for more in two years.  In this respect only, you might put “Newton” in the loser category as well.

Ward 8, Precinct 2:

Warren: 205

Balser: 345

Right then, I knew Warren had a real shot.  The bottom line was that Setti was going to capture the north side of the city.  That we knew.  The question was, would Ruth’s supporters come out in sufficient numbers in Wards 7and 8 to completely nullify Setti’s north-side advantage?  Ruth was expected to trounce Setti by a two-to-one margin in Ward 8.  Particularly precinct two.

It didn’t happen.  In the end, Setti’s grass-roots effort garnered the requisite amount of support necessary to secure a 463 vote margin of victory.  As I reflect on Setti’s remarkable victory, and the campaign’s journey over the course of the past year, I can honestly say it was an extraordinarily well run, disciplined campaign that set a grassroots course from day one, and simply never waivered.  All the credit in the world goes to the campaign brass, in particular Deb Shah, for that work.

The premise of the grass-roots campaign is deceptively simple:  you need to get more votes than the other guy, right?  In order to make sure that happens, you need to get more of your voters to the polls than the other guy.  Duh.  Thus ends the deceptively simple part, and begins the hard part: months and months and months of voter identification, followed by a relentless Get Out The Vote (GOTV) push.  And that’s really how Setti Warren went from a guy few knew to the Mayor Elect of Newton.  He identified voter after voter – supporter after supporter - and made sure they voted on election day.  Simple.  But hard.

Sure, the late endorsements helped.  Hell, everything helped.  We won by 463 votes.  But we never would have gotten that far if Setti wasn’t a compelling candidate with a positive message who was absolutely dedicated to winning this thing, coupled with a maniacly orgainzed and disciplined campaign dedicated to identifying voters and getting them to the polls.

The voter identification, the house parties and the the campaign’s positive message allowed Setti to pick up key supporters in July and August, sufficient for Setti to get past Ken Parker in the September 15 preliminary, and come in a close second to Ruth Balser.  She won the 9/15 preliminary by “only” 872 votes, when she was expected by pundits to crack a lead of 1,000.  She took 36.1 percent of the vote to Setti’s 30.6. 

In ward 8, however, she beat Setti two-to-one, 845 to 406.  In Ward 6, precinct 3, she won 302 to 177.  In Ward 7, precinct 1, she won 151 to 85. Roughly 34 percent of Newton’s registered voters showed up for the 9/15 preliminary.  Although we fully expected an additional 10,000 voters on November 3, if the percentages had stayed the same, Ruth would have won.

But the percentages didn’t hold.  Not only did Setti take each and every Ward and Precinct on the north side of the city, 1 through 5, he actually cut into Ruth’s southside stronghold.  In Ward 6, Precinct 3, where Ruth had beaten Setti 63% to 37% on 9/15, Setti cut the lead down to 54% to 46%.  In Ward 8 overall, where Ruth captured a commanding 67.5% of the vote on 9/15, Setti managed to trim her lead to 61.5% to his 38.5%.

In the end, it was enough.

Forum on Newton's Financial Future

The campaign’s voter outreach and identification had led, inexorably, to a city-wide base of support.  That support led to endorsements.  Those endorsements finally coalesced at the right moment to allow Setti to hold his October 18 forum on Newton’s Financial Future, attended by community leaders, characters and egos usually too big for one room, such as Geoff Epstein, Dan Fahey, Paul Colletti, Dori Zaleznik, Marcia Johnson, Ted Hess Mahan, Laura Thompson, and myself, to name a few.  Setti ran the forum with aplomb.  Gail Spector, editor at the Newton TAB, called it a turning point.  And it was.

But as I looked around the room that day, I realized that exactly three people in the room were on board with Setti in June – Marcia Johnson, Ted Hess Mahan and I.  About a week later, someone asked me why, if that forum was such a success, it hadn’t happened earlier.  The answer is simply that it couldn’t have.  Those people weren’t ready in June or July, but had come around by October.  The campaign had peaked at the right time.

There was absolutely zero room for error in this thing, and everything had to happen exactly the way it did.  It really is astounding to look back on.

We’re not done with this election on the Prizblog:  next time, we take a look at down ballot numbers, voter trends, and lessons learned.

MOMENTUM OF THE SETTI WARREN CAMPAIGN CONTINUES TO BUILD

Bill Brandel, Ward 5 Alderman, Endorses

 

Newton, September 2nd – The Setti Warren campaign announced that Ward 5 Alderman, Bill Brandel, has endorsed Setti for Mayor, joining a diverse group of community activists and elected leaders from every neighborhood in Newton.  Mr. Brandel is a recognized software industry analyst and award-winning journalist with almost 25 years of experience in the technology industry. Throughout his career, he has focused on innovation and operational transformation. He and his wife, Mary, moved to West Newton in 1992, and settled in Newton Highlands in 1999.

 

“Setti Warren has demonstrated that he has the resolve, intellect and temperament to make the necessary changes that will ensure that Newton remains a great place to live and raise a family,” Brandel noted.  “In short, he has the leadership traits that we need in our next mayor.”

 

“I am delighted with Bill Brandel’s endorsement,” said Mr. Warren. “We share the same pragmatic and honest approach to meeting the difficult challenges we face ahead

Good for Bill.  This obviously gives Setti a little more weight with the dataphiles than he might had before.

 I was 23.  More than that, I was that 23 year old guy who just knew everything.  Back then I knew that the Kennedys were Massachusetts royalty, but, I thought, with increasingly little justification.  Kennedy had become something of a lightning rod for neo-conservatives across the nation who vilified his liberalism.  Meanwhile, legions of good, young liberals across Massachusetts were disenchanted as the political ladder became clogged at the top, filled with role-playing Congressmen, and embarrassingly ineffectual liberal state reps and senators.  The state party couldn’t even seem to muster a convincing run to take the governor’s office from a series of incompetent Republican administrations, out of fear if they presented a good enough candidate, that guy might eventually eye Teddy’s seat.  That’s what I’d heard, anyway.

 I last heard Ted Kennedy speak at the Massachusetts Democratic Convention six years later, in 2005.  It was a real low point for the party.  John Kerry had just been defeated by George Bush.  The war in Iraq dragged into its third year, and the President had just promised to use his political capital to privatize social security.  Kennedy tried to rally the visibly depressed and angry crowd by talking about his years of public service, his brothers, their ideals and how those ideals lived on in the Massachusetts Democratic Party he saw seated before him. 

 Again, I wondered if we could please stop living in the past.

 A few months later, I was involved in an automobile accident with a Massachusetts politician who, I believed – and still believe – was intoxicated.  That guy was never charged with any crime despite my best efforts to see that he was.  It was an infuriating and disheartening experience.  And it made me question exactly how much support I could really give a guy like Kennedy. After all, hadn’t he done the same thing and gotten away with it? 

 These years later, I woke up this morning to find that Ted Kennedy had died.

 Let’s just say that since that car accident, since the 2005 convention, and certainly since the time I first met the Senator, I’ve discovered a lot about myself and the world around me.  I came to understand, in a very real and personal sense, the notion of tragedy when my father died of cancer two and a half years ago.  I’ve also come to understand the nature of loss, and its attendant personal demons.  I’ve come to understand that great men are capable of tremendous sin, and terrible men are capable of fulfilling sacred obligations.  I’ve come to understand that human beings are tremendously complicated and that a real tragedy of modern life is that soundbites will never do man justice.

 In short, I think I’ve come to understand Ted Kennedy.

 Having recently come to being able to appreciate Senator Kennedy’s years of service, I now of course feel a sense of regret that I didn’t come to this point sooner.  I think about my own life, my own mistakes, and I wonder how I would be judged if everyone knew everything about me all the time.  And how it would feel if the general public were actively encouraged to pass judgment on me by people who make a living off of that kind of cynicism.

 I think now about what it would be like to devote your entire career – no, your entire life– to helping other people, and to have those efforts dismissed just as quickly as you can say “Mary Jo Kopechne.”   I wonder if, deep down, Kennedy worked as hard as he did to save the lives of people with terminal illnesses like cancer because he thought he had a debt owed to God that could, perhaps, never be repaid.

 I had occasion this morning to be in Salem, Massachusetts, where I was born and spent the first fifteen years of my life.  Whenever I’m there, it’s 1984 again.  Ronald Reagan is our President, and Senator Edward M. Kennedy is our liberal man in DC, fighting the good fight.  My grandparents live down the street.  My father is still alive.

 My thoughts, of course, drifted toward loss.  How old I’m getting, and how very much we’ve all given up, and how much has been taken away.  The radio wondered who would succeed Senator Kennedy.  I wondered who would succeed my father.  I wondered, nearly aloud, whether the world was equal to the task of replacing all that has been taken away in my lifetime.

 But then I thought about Ted Kennedy again.  It’s 1968, and all of his brothers have been killed. The country, and his family, are in turmoil.  And everyone is looking to him to make it right.  It’s not hard to imagine that, at some point, he too must have just felt like he was absolutely not up to this.

 But then… he was. 

 And for that, I thank him.  I thank him for being the very human being that he was, with whatever consequences that come with that.  I think, at the end of all of our lives, we would be lucky to have others say the same about us.

As the theory goes, Ruth is the mayoral candidate of choice for what I have dubbed the Traditionalists – Newton’s ruling class, which at its core consists of David Cohen’s well-connected former supporters, the Democratic City committee, public employees, the head of the teacher’s union, and is rounded out by the vast swaths of Newton residents who are happy living here, have few complaints, recognize Ruth Balser’s name, and generally think she’s a pretty great lady.

Ruth, however, is not running a Traditionalist campaign.   She is not running on the Cohen administration’s record, and is not touting its accomplishments.  She is not actively trying to convince Newton residents that Newton is a beautiful, well-run city, whose schools high schools have just ranked fifth and sixth, respectively, by Boston Magazine (she’s leaving that to Paul Coletti).  She is not trying to be the public employees’ candidate, either, losing just as many endorsements as she’s gaining.

Rather, with her latest campaign mailer, and her most recent public statements, including her one-on-one interview with Gail Spector, editor at the Newton TAB, Ruth is touting her management experience.  She is doing her best to make sure each and every voter knows that she was a director of mental health services and a manager of a behavioral health clinic prior to being an elected official.  She is emphasizing “performance based” budgeting, and “technology-based performance  monitoring” .   Make no mistake about it, Ruth Balser is not trying to be David Cohen in a skirt.

She’s trying to be Setti Warren.

One of the most fascinating, if infrequently discussed, subplots in the whole race is: Who is Ruth Balser?  And what does she really believe?  Oh, we know she’s a good liberal.  She’s for mental health services for those in need.  She’s for equal marriage.  She’s for progressive social policy generally.  That’s great.  So, by and large, is the rest of Newton.  But what about the things that matter on a municipal level?  Does she really believe in the Traditionalist Reformist cause, despite her backers, who have all never been inclined to give “reform” any such lip service?  Is she really a disciple of the New Public Service?

I’ve been particularly astounded by the lengths to which Ruth’s supporters have gone to distinguish Ruth from Setti all while trying to swipe from him the banner of Traditionalist Reformist (even if they’ve never heard of the term.  And, I know, they haven’t).  This from one Ruth support identified only as “Claudette” on the Newton TAB blog last week:

Setti Warren is a personable, intelligent man. I went to one of his house parties. He would be great at the connecting with voters part of the job, but his ideas are not realistic…

His ideas aren’t realistic?  His ideas are Ruth’s ideas.  I submit to you the following, bearing in mind Setti’s platform was published months before Ruth’s:

Ruth’s platform:  “Our city as at a critical budgetary juncture.”

Setti’s platform: “Today, Newton is facing a financial crisis.”

Ruth’s:   “We need to reevaluate priorities and to reorganize our budget process.”

Setti’s:   “As mayor I will initiate a comprehensive financial and management review of every city department.”

Ruth’s:  “As mayor I will… create a strategic plan.”

Setti’s:  “As mayor I will create a strategic plan based on the principles set forth in the Newton Comprehensive Plan adopted by the Board of Aldermen in 2007.”

Ruth’s: “”As mayor I will adopt performance based budgeting.”

Setti’s:  “as mayor I will adopt zero-based budgeting.”

Ruth’s: “One way I will look to enhance communication with citizens is by creating a 311 citizen call center..”

Setti’s: “Implement both a phone and web-based 311 program to track incoming requests for service and a NewStat program to review responsiveness and customer satisfaction.

I could go on and on, but I won’t because I don’t have all night.  And let’s be perfectly honest here – Ken Parker was all over this stuff too, putting his platform out even before Setti did.

But the question isn’t who was first.  The question is: who can actually implement any of this stuff? Is it the guy who has actually managed public sector employees before?  Or the woman who has run a private mental health clinic?

What I find remarkable about Ruth’s strategy right now is that she’s even begging us to ask that question.  Because when it comes right down to it, you have to answer that question with another question:  Does Ruth really believe in performance management and driving hard bargains with public unions? 

Is she a Traditionalist Reformist, or just a Traditionalist trying to get elected?  Where, after all is said and done, does she fall on the spectrum?

It’s mid-August and it’s an election year.  You know what that means?  It’s hardcore campaign season, with Newton’s Preliminary Election slated for September 15!  And what better way to kick it off the big push to the finish line than with a wide-angle lens view of Newton’s political spectrum?   In an effort to help you better understand Newton politics, I give you Everything You Need to Know About Newton Politics (But Were Afraid To Ask), 2009:

The first thing you have to understand about our local political spectrum is that conventional “left” and “right” labels don’t necessarily apply to local politics.  As they say, “There’s nothing liberal or conservative about a pot hole.”  True.  But the response to the pot-hole varies wildly along Newton’s own left-to-right political spectrum.

The left-to-right Newton political spectrum is bookended on the extreme ends, left-to-right respectively, by what I call “Blissfully Unaware Newton,” and “Angry Newton.”  You know Blissfully Unaware Newtonites.  They don’t read the TAB editorial page, don’t blog, won’t read this article, and certainly wouldn’t have any idea what I was talking about if they did.  They live in Newton, the happiest, prettiest, most crime-free community around, and wouldn’t have it any other way.

You also know Angry Newton.  Everything here sucks to Angry Newton.  Our schools, perpetually highly ranked, have done their children a tremendous disservice.  It is because of former Newton Public Schools Superintendent, Jeffrey Young, that their kids will be forced to attend lowered-tiered colleges like Northeastern and BU.  Not only do they read the TAB editorial page, they’re skipping this column right now to search for the letter they submitted this week. These guys practically breed on the TAB Blog, but mostly anonymously.

Betwixt the two is political reality, and Newton’s four, previously-unlabeled political parties (from left to right): the Traditionalists, the Traditional Reformists, the Anti-Establishment Reformists, and the Anti-Establishment Party. 

The Traditionalists are the party of choice for Blissfully Unaware Newton.  They have been ably represented by a cadre of well-intentioned progressives over the years, most recently by David Cohen.  That is, until he went and built the $200 million dollar high school they wanted.  Alas.  It looks like it’s time for a new horse, and their candidate of choice appears to be Ruth Balser.  Class-act Lisle Baker is the Traditionalist President of the Board of Alderman.  The Newton Democratic City Committee, a machine in the days gone by, provides the Traditionalists with foot-soldiers.  No self-respecting Traditionalist would be caught dead on the Newton TAB Blog.

On the right, Angry Newton is firmly Anti-Establishment.  If you want Anti-Establishment street-cred, get thee to the Newton Parents listserv, and take part in ripping the aforementioned Jeffrey Young, curriculum coordinators, and the School Committee, except for Geoff Epstein (more on him later), to shreds.  For the Anti-Establishment Party, there is but one mission:  clean house of the public servants that have led Newton to its current fiscal predicament.  The Anti-Establishment Party is represented in the present mayoral election by Bill Heck, and in the Aldermanic race by Newton’s ubiquitous neoliberal, anti-housing advocate, and former President of the Newton Taxpayers Association, Jeff Seideman.  They dominate the TAB Blog.

Things start to get more serious as you move toward the center of the spectrum.  A quiet, but growing, revolution is underway on the center-right of the spectrum through a group of people committed to reforming Newton government with ideas largely borrowed from New Public Management political theorist David Osborne.  These “Anti-Establishment Reformists” seem to have coalesced under the banner of [Dan Fahey's] political action group “Newton 20/20.” 

Like New Public Management theorists, these activists draw on the free-market principles, and seek to replace Newton’s traditional bureaucratic model with cheaper, leaner methods of providing services.  They emphasize measurable outcomes over qualitative conclusions.  Ward 5 School Committee candidate, Steve Siegel, is an ardent Osborne fan.  Mayoral candidate in Ken Parker, whose platform emphasizes de-centralization of certain services, and a revamping of the mayor’s administrative hierarchy, seems to fit the Anti-Establishment Reformist mold.  Alderman Bill Brandel ably represents the Anti-Establishment Reformists on the Board of Aldermen.  Geoff Epstein is an Anti-Establishment Reformist School Committee rock-star, and seems to be the only one of his kind on the school committee, although his sometimes quirky personality seems to keep him from achieving any kind of consensus on his otherwise sensible platform.  Margaret Albright and Matt Hills, both vying for school committee spots, would seem to bolster Anti-Establishment Reformist forces on the committee in addition to Seigel, if elected.

They sometimes blog, but less often lately.  It seems a desire to get elected and actually make some progress toward policy implementation has led to a new-found sense of restraint.

Not to be outdone, refugees from the Traditional camp are also seeking to reform municipal government in Newton, with the recognition that, while efficiency can and should be achieved, the focus should remain on the mission of government and how best to determine the public interest.  These “Traditional Reformists” seem to borrow from “New Public Service” theory, which recognizes that in public service there are considerations that sometimes come before cost efficiency.  While committed to new, quality-management approaches like CitiStat, they are likely to admit that a program like METCO may very well lose some money – but that it’s worthwhile anyway.  It’s too early yet to say whether the new political action group, Citizens for the Future of Newton, will play the New Public Service foil to Newton 20/20’s New Public Management.  But I have my suspicions.  Alderman Ted Hess-Mahan is an example of what I consider a Traditional Reformist.  They seem to have found their mayoral candidate in Setti Warren.  When these guys blog, they get trashed by Angry Newton. When they defend themselves, it gets ugly.  But entertaining!  When they actually win an argument, they’re accused of being negative.

So, there you have it.  The battle lines have been drawn.  Buckle up, it’s going to be a wild ride.

But I also misused the platform, and got myself into some hot water at work, and even in the media.  Convinced that the platform had taken me as far as it could, I ended the blogging experiment.  The whole thing just became more trouble than it was worth.

Since I stopped writing the Prizblog in March of 2007, I started writing a column in the Newton TAB called “Speakin’ Out.” It started in the fall of 2007 and ran through this past spring.  In the meantime, I became involved with Setti Warren’s campaign for Mayor of Newton.  As a direct result of that involvement, I was informed by the TAB’s editors that I could write about anything but the mayoral election.  That decision was based on their concept of fairness – they didn’t want me filling their Op-Ed page with Setti puff-pieces every week for 6 months.  I get that.  But that was also never my intention.  I also had no intention of writing a watered-down “Speakin’ Out” that ostensibly ignored the most important mayoral election in the city in over a decade.  So, I put the column on indefinite hiatus.

That decision, however, left me in an even worse spot – no platform for my writing.  Hence, the Return of the Prizblog.  Thirty months since the first Prizblog met its end, my life is a little more in focus, as will be the contents of this blog.  The prizblog will dwell mostly on the political and legal topics of the day. Gone will be the video game and movie review my close friends enjoyed.  Sorry, fellas.  We’ll always have facebook.

I intend this space to contain everything I probably would have submitted to the TAB editors.  The added benefit of doing it this way is obviously complete editorial control of my work, and no pesky 800 word limits.  The downside, obviously, is that I lack the circulation of the Newton TAB.  But then again, judging by how many of those things reside in the puddles dotting Newton sidewalks every week, I’ll probably end up reaching the same people doing it this way.

So, enjoy.  Thanks for reading, and check in again when I finally post the Speakin’ Out  column the TAB refused to print.

 - Ed