The Boston City Council took an unusually aggressive step last week in voting to subpoena MBTA general manager Phil Eng and press him to answer more questions about a controversial $164 million plan to redesign Blue Hill Avenue.
Whether it will actually work remains unclear. Neither Eng nor the T have said whether he intends to comply and testify at a Nov. 6 hearing. And to enforce the subpoena — only the second it’s issued in more than a decade — the council could have to retain legal representation and go to court, where the body would likely face messy political and legal questions, several attorneys and former city councilors told the Globe.
That includes whether it’s even within the council’s jurisdiction to subpoena a state employee.
“It’s fraught with political and legal peril,” William F. Sinnott, a former federal prosecutor who previously led the city’s law department, said of the council wielding its subpoena power.
Sinnott said such a move should be treated as a “nuclear” option for those who don’t comply with requests for information. A subpoena could formally get someone to answer questions “at best, and perhaps [be] obstructive at worst.”
Both the city charter and Massachusetts state law grant the council the authority to summon individuals to testify before the body, or face the same penalties for noncompliance as witnesses subpoenaed to appear in civil court.
It’s a critical and powerful tool that ensures the council can get the information it needs, said attorney and former Boston city councilor Josh Zakim.
“The subpoena, summons power should be used judiciously,” said Zakim, who led the unanimous effort in 2014 to subpoena a landlord after he twice refused to answer the council’s questions over rampant complaints about unsafe and unsanitary conditions at his properties.
“If you’re in a situation where someone refuses to agree to it, I don’t think the council wants to be in a position where they’re regularly rushing to Superior Court to ask [judges] to give orders,” he added. “Where does it go from there?”
The Blue Hill Avenue project would overhaul the biggest commercial vein through Black Boston, bringing badly needed safety and aesthetic upgrades to the corridor. City and T officials say tens of millions of federal dollars that make up the bulk of the project’s funding are contingent on it including a center-running bus lane.
The bus lane has been one of the project’s most divisive aspects, drawing vocal opposition from some residents. City councilors Miniard Culpepper and Brian Worrell, whose districts include Dorchester, Mattapan, and Roxbury, have been among the project’s fiercest critics, and are pushing the MBTA — including in a June meeting with Eng — to consider expanding the Orange Line instead.
Eng, who is also the state’s interim transportation secretary, has said he would be open to studying an Orange Line extension there in the future, but that it would be years and millions of dollars away from becoming a reality. He was less clear whether he’d comply with the subpoena. He told the Globe on Thursday he hadn’t yet seen “any official requests” from the council; Culpepper said it was served at some point later that day.
“I’m going to continue to have engagement with the community, making sure that this project is addressing and hearing people’s concerns, and at the end of the day, working with the city to be able to deliver the best project for all the community today,” Eng said.
Culpepper told the Globe he’s “absolutely” prepared to take the issue to court if Eng doesn’t show. In pushing for the subpoena, he said that Eng did not appear at an Oct. 14 council hearing on the transit plan, nor did he feel Eng adequately addressed critics’ concerns at four public hearings in September.
Eight of the city’s 13 councilors voted last week to issue the subpoena, but others objected to the move, saying Eng has extensively communicated information and publicly answered questions about the project. A T spokesperson said officials also had “previously informed” city councilors that Eng was unavailable to go to the Oct. 14 meeting, which Culpepper disputes.
“I don’t use the subpoena in a willy-nilly way,” Culpepper said. But “this council wants to be respected when they ask and make a request for a witness to come before them. They don’t want witnesses, you know, thumbing their nose at them.”
The approach hasn’t been without hurdles before. In 2014, the council became embroiled in an unusually public clash with one of its most prominent universities when it unanimously voted to subpoena then-Boston University president Robert A. Brown after school officials skipped a council hearing examining BU’s record on diversity. The move prompted BU to retaliate by filing a lawsuit, and the two sides came to an agreement out of court after the city’s law department got involved. Brown ultimately agreed to appear at a hearing that December.
The city’s corporation counsel technically represents both the city as a municipal government entity and the council. In this situation, however, Mayor Michelle Wu’s office has already rapped the council publicly for subpoenaing Eng, saying it does “not believe that subpoenas are a constructive way to engage with close partners in government.” (Wu has worked with the T in other ways, including in extending a pilot to keep three bus routes fare-free in the city.)
According to the city code, the council can retain special counsel “in the event the interests of the Mayor and Council appear to the Council to be divergent or in conflict.”
That avenue, however, could come at a potentially steep cost to taxpayers. The MBTA could file a lawsuit to quash the subpoena and argue that the state’s authority preempts that of a municipality, meaning the subpoena is not enforceable, said Sammy Nabulsi, an attorney who spent three years as assistant corporation counsel for Boston.
Joshua Balcunas, Boston’s US Postal Service postmaster, defied a council subpoena in 2024, when a USPS lawyer argued that state authorities don’t have the power to force federal agencies or their employees to testify. The council did not challenge that argument or seek to enforce the subpoena.
“The minute you go to court, you’re going to start producing precedent on these issues,” Nabulsi said. “If that precedent isn’t going to be favorable to the city, it almost feels like we kind of wasted an opportunity later where things may be more important to issue a subpoena to an official.”
There is still time for the council and the MBTA to come to a compromise, Nabulsi said, and effectively say, “Hey, maybe this is an unnecessary uptick in the heat here.”
Niki Griswold can be reached at niki.griswold@globe.com. Follow her @nikigriswold. Diti Kohli can be reached at diti.kohli@globe.com. Follow her @ditikohli_.