Boston could soon have an acting mayor. What will that mean?

Lawyers differ on how to interpret archaic text in city charter

Council president Kim Janey (left) shook Mayor Martin J. Walsh's hand in 2019.Jessica Rinaldi/Globe Staff/The Boston Globe

It is one paragraph featuring three complete sentences of just under 190 words.

But the interpretation of those few phrases could determine the limits of City Council president Kim Janey’s power when Mayor Martin J. Walsh of Boston departs to become the nation’s next labor secretary and Janey steps into the role of acting mayor.

Welcome to the wonky world of city charter legalese. In clunky terms, the charter says an acting mayor “shall possess the powers of mayor only in matters not admitting of delay, but shall have no power to make permanent appointments.”

But there are already differing takes as to what that archaic language could mean for Janey, who would become Boston’s first Black and first female chief executive once Walsh steps down.

Ellen Callahan Doucette, a municipal attorney who works as Woburn city solicitor, said in an e-mail that she believes the charter limitations would mean an acting mayor such as Janey can’t make permanent appointments. She said the charter limitations allow an acting mayor to make decisions only if those actions cannot be delayed until after election. But what precisely falls under that definition depends on the situation.

“The acting mayor is likely authorized to act when time is of the essence, and there is a necessity for immediate action,” Callahan Doucette said.

But others argue the clause wouldn’t apply to Janey at all.

Janice Griffith, a Suffolk University law professor who recently offered a legal interpretation to Janey’s office, argued the charter limits would not apply to someone in Janey’s position. She asserted that the sentence limiting the powers of an acting mayor would apply only to cases where the City Council designated someone to perform the duties in the absence of a City Council president. Messages left with Janey’s office were not returned last week.

And Councilor Ricardo Arroyo recently said his interpretation of the city charter is that “the acting mayor is the mayor, they have all powers of the mayor.” For instance, he thought Janey would be able to make operating budget decisions once Walsh departs.

“She has the power essentially to run the city through the charter. I don’t see why anyone would take offense to it,” Arroyo said.

James and Daniel Lampke, a father-and-son pair of Boston-based attorneys who practice municipal law, contend the limitations in the charter would apply to any acting mayor, including someone in Janey’s situation.

But even if the clause does apply to Janey, the elder Lampke said there’s also “some wiggle room” to decide what’s an urgent matter that Janey can act on — or in the archaic language of the charter, “matters not admitting of delay.”

“Someone has to make a determination: ‘What is not admitting of delay?’ ” Lampke said. He said other city charters feature that turn of phrase, and opined that it could apply to decisions relating to the ongoing pandemic, any bills the city must pay, a grant application that has an approaching deadline, or other pressing items.

City Councilor Kenzie Bok thought it was important for the council to receive “legal clarity here that’s more definitive than rival interpretations reported in the press.”

Bok noted that some types of legal challenges were more likely to occur amid the pandemic, with the city making significant decisions involving business closures, labor issues, and public health requirements. And she said the city needed to make sure the acting mayor could “act in the interest of Bostonians without exposing the city to costly lawsuits.”

“What matters here isn’t what a lawyer could theoretically argue about the charter, but what the courts will likely do, based on precedent, in the event of a challenge,” she said.

The city’s law department is now in the process of producing an internal memo for City Hall officials with its own interpretation of the charter clause, said a spokesman for City Councilor Lydia Edwards.

The powers of an acting Boston mayor have become a political football in the past.

In 1993, then-Mayor Raymond L. Flynn left City Hall to become ambassador to the Vatican, elevating council president Thomas M. Menino to acting mayor. Menino’s rivals charged that, in order to be faithful to the charter, Menino had to act only as a caretaker executive, according to Globe coverage from the time.

Because of the charter limits, Menino had to fill an opening on the Boston School Committee and a press secretary vacancy temporarily, since he did not have the power to make permanent appointments while serving as acting mayor in 1993, noted a senior member of the Walsh administration.

When exactly Walsh will leave is among the open questions facing City Hall. Walsh needs US Senate confirmation to become labor secretary and the timing of that is uncertain. Walsh’s mayoral departure date could also determine whether the city has a special mayoral election this year, in addition to the regularly scheduled municipal election this fall. The City Council is also debating whether to override the charter rules requiring a special election.

Meanwhile, City Council members Michelle Wu and Andrea Campbell are already campaigning to become mayor — without the “acting” title — in the next election. And Janey and several others are said to be contemplating their own runs for mayor.