New Bedford Attack Exposed
Former Solicitor George Leontire Describes Assault on SSA and Islands in His Deposition for Suit Against Boatline
By NIS KILDEGAARD
Over the past two years, the campaign of the city of New Bedford to have its way with the Steamship Authority has seemed, at times, to be filled with strategic contradictions.
Sue the boat line; negotiate with the boat line. Argue in court that the boat line's enabling act is unconstitutional; argue in the legislature that the enabling act should be amended, fatal flaws and all.
George Leontire, architect of the New Bedford campaign against the Steamship Authority as the city's lawyer until last week, was deposed last week in connection with his federal lawsuit against the boat line. What he told Steamship Authority attorney John Montgomery in his sworn testimony is that the city's lawsuit, from the beginning, was one part of what he called a "three-pronged attack" on behalf of New Bedford - negotiating with the Steamship Authority, lobbying for state legislation and suing the authority in federal court.
The preliminary draft of the deposition transcript, released by boat line counsel Steven M. Sayers to the board of governors this week, includes this exchange:
"Q: Has it been a part of the city's strategy to use the litigation as leverage to secure legislative action?"
"Mr. Leontire: No question about it."
"Q: And has it been part of the city's strategy to use the litigation and the claim that the federal court should intervene as leverage to secure action by the Steamship Authority?"
"Mr. Leontire: Yes."
In his testimony about the controversial battle over the past three years to force New Bedford service on the public, unsubsidized boat line, Mr. Leontire said it is important to understand how statements he made at different times may appear contradictory because they were made in different contexts - to advance one aspect or another of his three-pronged attack plan.
For example, Mr. Leontire conceded that in 1999 he told the Steamship Authority repeatedly that New Bedford would not, under any circumstances, permit a private carrier to run seasonal freight service out of the port there. At that time, his position was that the city wanted nothing less than year-round freight service to the Vineyard, not by a private carrier and not on any seasonal basis. But under questioning, Mr. Leontire said that was never the city's real position:
"Q. Just to make it clear: As of June of 1999, you had no particular desire that the Steamship Authority itself provide service out of the port of New Bedford."
"Mr. Leontire: All I wanted was appropriate service so that we could be involved in trade."
"Q: And you didn't care whether it was the Steamship Authority or a private carrier."
"Mr. Leontire: No."
Pressed to explain such inconsistencies, Mr. Leontire said:
"There was a lot going on with respect to the Steamship Authority. There was a negotiation process that was taking place with the Steamship Authority. There was a legislative process with regard to the Steamship Authority. And there was the litigation issue. . . .
"So when you ask me a question like did I support and did I comment, I have to advise you that I've made a lot of statements about lots of events, and my statements and comments and writings served different purposes. Some were to serve negotiation purposes. Some were to serve legislative purposes. Some were to serve litigation purposes. Some were to move the process in one direction, even though I felt it may end up in another direction.
"So that my comments have to be taken in the context that this was an ongoing dynamic situation of litigation, negotiation and legislation. And so when you ask me did I support or did I make comments of support, you have to view my response in light of what was taking place, in the context of how I had to operate."
"Q: You mean you think I should do that."
"Mr. Leontire: No, I'm telling you, you have to do that."
Mr. Leontire admitted publicly for the first time in his deposition that he was, in fact, the author of the amendments to the proposed Kass Commission legislation - amendments which would, among other things, give a voting seat on the Steamship Authority board to New Bedford and undo the appointment of Kathryn Roessel as SSA representative by the Dukes County commissioners.
"Q: Who initiated the communications with Judge Kass regarding proposed changes to the original Kass Commission proposal?"
"Mr. Leontire: I did."
Mr. Leontire said that to the best of his recollection, he spoke with Judge Kass twice about the amendments by telephone, and that he exchanged correspondence with the judge on the issue three or four times.
Mr. Leontire was asked to identify a document entered as Exhibit 5 by the Steamship Authority attorneys in this exchange:
"Q: Have you seen Exhibit 5 before, Mr. Leontire?"
"Mr. Leontire: Yes."
"Q: What is it?"
"Mr. Leontire: It's the revised legislation - with the handwritten corrections typed."
"Q: So this Exhibit 5 contains the original proposed amendments to the statute submitted by the governor as well as some further proposed changes that you've testified that you discussed with Judge Kass late in 2001."
"Mr. Leontire: Correct."
In one of the most remarkable exchanges in his lengthy deposition, Mr. Leontire told the SSA counsel that he believes both the Steamship Authority's enabling act, and his proposed amendments to that act, are unconstitutional. He said he never told any of the legislators whom he lobbied for passage of the amendment that he holds this view, "nor do I think they would care."
Mr. Leontire said that in his opinion, the Steamship Authority's enabling act will still violate the United States Constitution even if his amendments are adopted, because it continues to give licensing power over private carriers to the boat line. But he argued that in the context of the New Bedford strategy, it made sense to press ahead on the legislative front despite holding this opinion. In fact, he said, he wrote the text of a letter which was sent over the signature of Major Frederick M. Kalisz Jr. to the chairmen of the state's joint transportation committee, supporting his proposed amendments to the SSA charter.
"Q: Did you have a discussion with the mayor about the Kass legislation?"
"Mr. Leontire: Yes."
"Q: Did you tell the mayor that the legislation, even if amended, would be in your view unconstitutional?"
"Mr. Leontire: Yes."
"Q: Did you advise the mayor to send Exhibit 6 [the letter to the transportation committee] to the legislature?"
"Mr. Leontire: What I advised the mayor was that, since I couldn't guarantee to him that Judge Woodlock or the First Circuit of the United States Supreme Court would in fact find the statute unconstitutional, that in the meantime, while we're pursuing the litigation, we ought to do the best that we can on the legislative front, and therefore I recommended that we support the legislation."
Mr. Leontire concluded his questioning on this count by explaining: "I think the legislature knows fully well that we believe that the Steamship Authority legislation is unconstitutional. Having said that, not knowing what the courts are going to do, I'm still going to do my best to try to get legislation that is as favorable as it can be to the city of New Bedford."
During his deposition, the Steamship Authority counsel pressed Mr. Leontire hard on a point that will be central to defense of the SSA legislation if it ever goes to a judge for a final ruling: the notion that the authority was given licensing power over private ferry services to protect the public line against profit-skimmers in the summer season. The existing system, in short, protects the public and enables the boat line to provide winter service without a public subsidy.
Getting Mr. Leontire to agree to any of this was like pulling teeth.
"Q: Do you believe that it would be reasonable for the legislature to conclude today that a public agency was necessary to assure stable, economical year-round service to the Islands?"
"Mr. Leontire: Yes."
"Q: Would it be reasonable, in the city's view, for the legislature to structure that public agency in a way that assured that the cost of that agency would not require annual appropriations from the legislature?"
"Mr. Leontire: Sure, they could structure one if they so chose."
"Q: And assuming the legislature were to create a public agency which was designed not to require annual taxpayer support, would it be reasonable for the legislature to take steps to assure that private operators did not compete in a fashion that would undermine the economic viability of the public transportation agency?"
"Mr. Leontire: No, it's not reasonable."
"Q: And why is that, Mr. Leontire?"
"Mr. Leontire: Well, you're asking me for a question of law."
"Q: I'm really not."
"Mr. Leontire: Yeah, you are. You're asking me to get into this whole market-participant kind of issue, which I'm not really qualified to get into, and that's why we have big counsels like you guys. So my answer is, no, I don't believe so."
"Q: But you don't have a reason?"
"Mr. Leontire: Oh, I have a reason. I believe that it is a violation of the commerce clause, unduly interferes with the free flow of goods and commerce, infringes on those goods, and as a result of its impact on commerce; yes, I believe it's unreasonable."
Using his rationale of the three-pronged attack, Mr. Leontire had plenty of defenses for the inconsistencies in positions taken by himself and by the city of New Bedford over the past three years. Quite in contrast, he told the SSA counsel that he believes the Steamship Authority management and its appointed members were not acting reasonably or in good faith through this entire four-year period.
Mr. Leontire said the Steamship Authority was acting in bad faith when it entered into a 1997 agreement with Barnstable, again in 1998 when it hired the firm of Cambridge Systematics to study the economic impact of off-Cape ports and again in 2000 when it undertook a pilot program of summer freight service from New Bedford to the Vineyard.
"In my opinions," he said, "the actions of [SSA Nantucket governor] Grace Grossman and [former SSA Vineyard governor] Ron Rappaport were a charade and an attempt to buy time, as they continued to do even after that period, and therefore I don't believe they acted in good faith. . . . [I]t was clear to me that the Steamship Authority had absolutely no intention of acting in good faith and that their actions were form over substance, and therefore we needed to aggressively look at this three-pronged attack."
Mr. Leontire described the two-year pilot freight program with private contractor Hvide Marine as "a desperate act" undertaken by the Steamship Authority to avoid state legislation.
"Q: Did you consider this endeavor a conspiracy?"
"Mr. Leontire: Absolutely, not in a criminal sense, but in a civil sense, the sense that Joe Sullivan [co-chairman of the joint transportation committee of the state legislature] and Ron Rappaport discussed just providing service for a year and then they would be able to walk away from this service; that, in my opinion, that behavior indicated to me a lack of good faith and a conspiracy in the civil sense of people operating together to deny real freight service."
"Q: And so you considered Representative Sullivan to be one of the co-conspirators?"
"Mr. Leontire: Absolutely."
"Q: Were there any other legislative co-conspirators?"
"Mr. Leontire: At this point, I'm not ready to make that kind of comment."
Mr. Leontire said that even though he has now stepped down as city solicitor for New Bedford, he will continue to work as a special municipal employee for the purpose of representing the city and its harbor development commission in their pending litigation against the SSA, and in their ongoing negotiations with the boat line. Mr. Leontire said that in this capacity as a special municipal employee, he will not be paid.
Looking to the future, Mr. Leontire said that the city of New Bedford may no longer want to work with the Steamship Authority at all.
"Let me give you an example: This summer, we've got a cruise ship coming in 11 times with 1,000 passengers and 40 crew. That's coming into the State Pier. It may be a determination by us that, since we cannot find a way to be engaged in water carriage of passengers and freight to the islands, that we have to abandon that activity and that we need to look to develop a port in a different way, which is maybe we develop the cruise industry in a different way, in a more aggressive way."