New Bedford City Council Officially Files Legal Action Over Police Chief Confirmation

NEW BEDFORD (WBSM) — The battle between the New Bedford City Council and Mayor Jon Mitchell has escalated to the next step, as the council formally filed an action in Bristol County Superior Court seeking a declaratory judgment on the council’s role in the confirmation of the city’s police chief.

In June, Mitchell announced former Hartford Police Chief Jason Thody as New Bedford’s new chief, following the retirement of Paul Oliveira and a nationwide search to find his successor.

READ MORE: Jason Thody Is New Bedford's New Top Cop

“In announcing his decision, Mayor Mitchell reminded the council that the City Code does not require council confirmation, but he would ask Chief Thody to address the council to introduce himself and hear the council’s thoughts about the future of the department,” according to a City release. “This was consistent with the City’s long-standing practice. In August, the Mayor memorialized Thody’s appointment in a letter to the council.”

Mitchell Administration: Council Could Take a Vote But Hasn't

The City release also reiterated Mayor Mitchell’s stance that in the three months since Chief Thody was selected, the council has “refrained from scheduling a confirmation vote.”

City Council President: That's Not How It Works

In his weekly appearance on WBSM Monday morning, Council President Shane Burgo said that’s not how it works, that Mitchell has to formally send his nomination to the council for confirmation and the council can’t just take it up on its own.

“The mayor has to send it down,” he said. “This works all the way up from the state to federal level. The governor or the president, they send down their appointments and then they get confirmed by the body.”

“It would be chaotic and disruptive if that body themselves just decided to say, ‘This is the candidate we decided to confirm,’” Burgo said. “(Mitchell) would love for the public to think that’s the way the process works, if we decide to pick or confirm someone that we call upon that he doesn’t like, then it becomes chaotic, the news story is the council is chaotic, the council is in distress, and here comes the mayor to come save the day. That is what they look forward to.”

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City Code: Who Really Has the Authority?

Mitchell and City Solicitor Eric Jaikes say that the City Code essentially makes the mayor the department head of the police department, and therefore anyone he hires is not subject to council confirmation. Burgo and the council’s attorney David Gerwatowski contend that the police chief is the department head, and therefore is subject to council confirmation just as any other department head, such as the fire chief.

READ MORE: Mayor, Council President Clash Over Police Chief's Hiring

“Although certain councilors have publicly contended that the City Code requires the chief’s confirmation, in the three months since they were first informed about Chief Thody’s nomination, the council has refrained from scheduling a confirmation vote,” the City release stated. “The council points to no provision in the Code that prevents it from casting this vote. The Code does not prescribe any particular method for the mayor to notify the council of an appointment, which in Chief Thody’s case was done verbally and in writing.”

Thody Has Already Appeared Before the Council In His Capacity as Chief

The release also echoed Mitchell’s point that Chief Thody was invited to appear before the council’s Committee on Public Safety and Neighborhoods on August 19 to discuss concerns about the parking of campers on public streets, and that the council still did not take a vote on his appointment even while he was in the council chamber before them.

Mitchell: Council Is "Wasting Taxpayer Resources"

“When they should be more concerned about the police department’s public safety priorities, the council instead is wasting taxpayer resources to score what it believes are political points,” Mitchell said. “If the council truly believes that the appointment is subject to confirmation, one might ask, why has it not held a confirmation vote? Regardless of this lawsuit, my focus will continue to be on supporting the work of the police department to maintain public safety.”

Burgo: Minimal Cost to Taxpayers

Burgo said on WBSM Monday that the filing fee for the lawsuit was “a little over $200,” and that the legal action shouldn’t cost any more than that, unless the Mitchell Administration tries to “make a bigger deal out of it” and “prolong it with expert witnesses or hire outside counsel.”

“These are salaried lawyers that are going to be paid whether or not this case was filed or not,” Burgo said.

“It’s mystifying that for someone who purports to have a transparent process, everything straightforward, why jump through so many hoops to delay this, to just prevent the inevitable? That’s what I think is just odd,” Burgo said.

What This Means for Chief Jason Thody

Burgo has also stated multiple times on WBSM and in other media that this is about the process, not about Chief Thody himself, and that he would expect that if the council does take a vote on his nomination, he would be confirmed by the body.