Wrongful conduct by a public official — how difficult can that be to define?
Then along came the Boston Calling case, sending Boston city councilors and a host of activists into a tizzy, insisting the conviction of two City Hall officials on extortion charges would put garden-variety “advocacy” at risk.
That a majority of the Boston City Council can’t tell the difference between extortion — which involved in this case putting a business in fear — and advocating for constituents is appalling and perhaps tells us more than we may want to know about how they conduct business.
Is there a difference between holding up a concert promoter to hire unneeded union workers and, say, requiring a developer to pay linkage money or throw in a nice public park as a cost of doing business? The fact that the former was clearly being done behind the scenes rather than in numerous public filings required of developers seemed not to matter to the councilors.
But a jury of eight women and four men clearly saw through the legal haze when they convicted Boston director of tourism Kenneth Brissette of extortion and conspiracy and Timothy Sullivan, chief of intergovernmental affairs, of conspiracy to commit extortion earlier this month in federal court. The jury did so after a relatively brief six hours of deliberation.
Only one of those jurors is a Boston resident, according to the list released last week by the court. And there are, no doubt, some who will make much of the “suburban sensibilities” of folks from Newton or Marblehead or Acton — as if the definition of extortion varies from town to town.
They knew it when they saw it as it played out in courtroom testimony over the course of two weeks.
This week lawyers for Brissette and Sullivan filed briefs in support of their motion to acquit the two.
They argued, “By intentionally blurring the lines between legitimate conduct and Hobbs Act extortion in this case, the government has left all interactions between public officials and their constituents open to second guessing by the federal government on pain of criminal sanction.”
The press conference by City Council members was no doubt timed to coincide with the filing of that brief. And, by the way, good for Councilor Matt O’Malley for not succumbing to the mob mindset that overtook his colleagues. He told the Globe, “It’s our responsibility to be an effective advocate for social inclusion and economic dignity, but we cannot stop living up to the letter and spirit of the law.”
And US Attorney Andrew Lelling got it right when he said, “If the Boston City Council thinks it is appropriate — or legal — to threaten private citizens with economic catastrophe if they don’t do something they’re not legally required to do, well, that strikes me as something the people of Boston might want to know.”
The position taken by city councilors was similar to arguments advanced in an amicus brief filed with the US Court of Appeals for the First Circuit at an earlier juncture when the US attorney’s office fought to keep the case alive. That brief, filed on behalf of the Boston area congressional delegation — US Representatives Katherine Clark, Joe Kennedy, Stephen Lynch, and now former member Mike Capuano — argued the prosecution was “an unacceptable interference with the functioning of representative government.”
The appeals court reinstated the case, adding, however, “we express no view as to whether . . . the defendants’ conduct was ‘wrongful,’ as it must be under the statute.”
Ah, but how to define “wrongful” and how will that legal definition square with common sense and the public’s right to expect ethical conduct from their public officials.
As US District Court Judge Leo Sorokin astonishingly put it in his charge to the jury, “Threatening economic harm or using the fear of economic harm in order to induce another person to part with property is not necessarily ‘wrongful.’ . . . Such fear also may be a necessary consequence of many legitimate exercises of authority by public officials.”
What a horrifying notion. Happily the jury saw it differently.
So does Lelling, who said at the time of the conviction, “Private companies that want to do business in Boston have the right to hire anyone they want — union or not — without fear of being threatened with economic disaster by government officials. That is the law.”
And, yes, Sorokin and Lelling do live on the same planet — sort of.
This isn’t some abstract legal argument — although it may ultimately be decided by an appeals court. It really is about the kind of government we want and what we expect of our public officials. Strong-arming shouldn’t have a place at City Hall or anywhere else in the public realm. If we want to be a modern city, businesses — and ordinary residents, for that matter — have a right to expect permits and other government decisions to be fair and transparent, not governed by winks, nods, favors, and unspoken rules.
And if the law isn’t clear enough on that, then it’s the law that must change, not the public’s notion of right and wrong.