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Waltham legal opinion chills political debate

Voters deserve to know where candidates stand on local controversies. But a city lawyer called it “potentially problematic” for elected officials to participate in some discussions at political forums.

Voters cast ballots in Waltham last year.Suzanne Kreiter/Globe Staff

During a heated municipal election season in Waltham, good luck learning where the candidates stand on contentious local issues.

The Waltham city solicitor has issued a legal opinion calling it “potentially problematic” for elected city officials to participate in discussions at political forums that relate to issues currently before the City Council or its committees.

The election is Tuesday. Don’t voters deserve to know what candidates think? Isn’t comparing where they stand on controversies ... kind of the point?

The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.


“It certainly had a chilling effect,” said City Councilor Jonathan Paz, who is challenging incumbent Mayor Jeannette McCarthy. “We as candidates are supposed to be candid, we’re supposed to be transparent about our values and our positions on certain matters.”

Although certainly unusual, the guidance is not unique. A similar opinion was issued in Newton in 2019, chilling debate in that city’s elections. The issue seems ripe for guidance from the state ethics commission or attorney general’s office to avoid future instances when voters are deprived of legitimate debate.

Waltham voters on Tuesday will cast ballots in an election where several longtime incumbent city politicians are facing challenges from younger political activists seeking change. There are two mayoral candidates, 12 candidates for six at-large City Council seats, and five competitive races for ward-based City Council seats.

On Sept. 28, solicitor John Cervone sent a memo to the city clerk to be distributed to councilors. The memo responded to unspecified inquiries about elected officials running for office participating in group-sponsored forums where issues are raised that are pending before the City Council. Two examples mentioned in the memo were a proposed tenants’ rights ordinance, related to notifying tenants of their rights before eviction proceedings, and issues related to conservation and recreation restrictions — like a hot-button issue involving the future of the city’s relationship with Waltham Fields Community Farm.


The opinion was issued before two forums — one sponsored by the Waltham Land Trust, which is involved in the farm debate, and another sponsored by the League of Women Voters and Watch CDC, which is involved in the tenant issue.

Cervone’s opinion stated that it is “potentially problematic for currently elected city officials to participate in discussions about any of the above topics outside of deliberations of the normal City Council process.” Cervone described concerns about violating the open meeting law if councilors deliberated outside a formal meeting. He said this would apply even if less than a quorum of members is present. In an interview, Cervone said his concerns were about violating the open meeting law and the state’s conflict of interest law, by creating the appearance of a conflict if a councilor speaks about an issue that is officially before them.

“If something has been submitted to a governmental body, it’s only supposed to be discussed within the confines of that body’s processes,” Cervone told the Globe.

Neither the State Ethics Commission nor the attorney general’s office would comment on this specific letter or scenario, and the attorney general’s office has not issued any rulings related to members of a public body participating in candidate forums about pending issues. But the conflict of interest law generally addresses a different scenario — where a person with a relationship to a public official unduly influences them — and state ethics guidelines allow broad latitude for political activities as long as city resources aren’t used.


Justin Silverman, executive director of the New England First Amendment Coalition, said Cervone’s opinion appears to be based on a misunderstanding of the open meeting law by applying it to situations without a quorum. “If there isn’t a quorum present at public events, then it’s not a violation under the open meeting law,” Silverman said.

The decision was requested by incumbent City Councilor at large Randy LeBlanc, who said he was asked about the issue by constituents and he wanted clarification because the law department raised concerns previously when the City Council was invited to attend a public meeting about a pending issue. LeBlanc said he reads the opinion as restricting him only from discussing pending issues when a quorum is present.

Paz said he felt the memo was politically motivated and sought to intimidate candidates from speaking out at public forums.

City Councilor Colleen Bradley-MacArthur said after she got the letter, “it felt as though I had to be very careful about what I said during the forums.”


McCarthy, the mayor, made clear that while the city solicitor works for the executive branch of government, “I didn’t request the opinion nor would I, because I do believe elected officials should be responding to questions and going to forums.”

Voters need to know how their councilors feel on the important issues that they will be voting on, and it benefits voters to be able to compare candidates at multiperson forums. Today, when civic dialogue is rare, any legal opinion making it harder deserves to be reconsidered.

Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.