July 16, 2007

Honorable Scott W. Lang
Mayor
City of New Bedford
133 William Street
New Bedford, MA  02740

RE: OPINION NO. 121-2007-10-4

Dear Mayor Lang:

You have asked me whether the City Council majority votes at its meetings on June 28, 2007 and July 12, 2007 to transfer funds appropriated for the use of one department to the use of another department result in votes to transfer said funds. The June 28th meeting and vote occurred during the last 2 months of fiscal year 2007 and the July 12th meeting occurred during the first 15 days of fiscal 2008.

M.G.L. Ch. 44 Sec. 33B (a), which took effect May 4, 2006, states:

The city council may, by majority vote, on recommendation of the mayor, transfer within the last 2 months of any fiscal year, or during the first 15 days of the new fiscal year to apply to the previous fiscal year, an amount appropriated for the use of any department other than a municipal light department or a school department to the appropriation for any other department, but the amount transferred from 1 department to another may not exceed, in the aggregate, 3 percent of the budget of the department from which the transfer is made. [emphasis added]

At its June 28, 2007 meeting, by a majority vote of the City Council (6 votes to 5), the Council voted to transfer $2,000.00 from Environmental Stewardship to Emergency Medical Services.  The City Clerk noted that the motion to adopt the order failed.  The FY2007 budget for Environmental Stewardship was $335,542.00. The transfer of $2,000.00 is equal to less than 1% of the Environmental Stewardship budget, from which the transfer is made. Therefore, this vote falls within the clear terms of said portion of section 33B and the motion to adopt the order to transfer should have passed.

At its June 28, 2007 meeting, by a majority vote of the City Council (6 votes to 5), the council voted to transfer $13,000.00 from Public Facilities to Emergency Medical Services.  The City Clerk noted that the motion to adopt the order failed.  The FY2007 budget for Public Facilities was $10,066,607.00. The transfer of $13,000.00 is equal to less than 1% of the Public Facilities department budget, from which the transfer is made.  Therefore, this vote also falls within the clear terms of said portion of section 33B and the motion to adopt the order to transfer should have passed.

By a majority vote (7 votes to 2), the Council at the June 28, 2007 meeting voted to adopt the order to transfer $135,000.00 from General Government Unclassified to Police Salaries and Wages. General Government Unclassified is treated as a Department for the purpose of appropriation through the City Council and therefore subject to Chapter 44.  Its FY2007 budget was $53,429,128.00 and the $135,000 transfer from General Unclassified equals less than 1% of this total budget.  Therefore, the vote at the June 28th meeting also falls within the clear terms of subsection (a) of Section 33B and the motion to transfer should have passed, rather than failed.

It would appear that the change to section 33B was not known at the time of the June 28th votes, so that on July 12, 2007 the City Council was convened in a Special Meeting called by Mayor Lang for the purpose of completing year end safety transfers in police and EMS, under the mistaken belief that all 3 orders to transfer had failed.  The Council once again had the opportunity to vote on the proposed transfers to both departments in the same amounts, from the same departments, just as the Council had done on June 28th.   On July 12th, the motion to again adopt the order to transfer the funds to the Police Department was determined by the Clerk to have failed, seven votes to two.  It was then voted to reconsider same by a vote of eight votes to one.  Upon reconsideration, at the motion to adopt the order to transfer, the vote was seven votes in favor of the transfer and two votes against.  The City Clerk marked the adoption motion as having failed.  Thereafter, two orders to transfer the funds to Emergency Medical Services (items 4A and 5A) were considered passed by a vote of ten to zero. It is my opinion that all of these votes on the 12th were unnecessary as the votes on the 28th were all sufficient to enable the transfers to have been ordered. 

As further support, I attach hereto a copy of the Department of Revenue’s I.G.R. No. 06-209, issued in May of 2006 which at page 3 succinctly states “An end of year transfer using this alternative procedure [MGL Ch. 44 Section 33B] requires only a majority vote of the council.”

As a result, the following corrective actions must be taken by July 16, 2007 to accurately reflect that all of these orders to transfer passed:
(1) The City Clerk must amend the records of all these votes, from June 28th and July 12th, which were recorded as having failed, to be recorded as having passed, and

(2) The City Auditor will reflect the effect of these votes to transfer as he does in the ordinary course, with the transfers effective after the June 28th votes.

Very truly yours,
Irene B. Schall
City Solicitor

IBS/bar
enclosure
cc: City Council President Pimental
 Attorney David Geratowski
 Rita Arruda, City Clerk
 Peter Schmidt, City Auditor's Office

Elizabeth Treadup (Mayor's Office)

View all articles by Elizabeth Treadup (Mayor's Office)