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."