Memo of Law Order 1-96 Parking Ticket

Memo of Law Order 1-96 Parking Ticket

In order to get a Judicial Review of an Administrative Hearing, such an appeal of a parking ticket, the Plaintiff has to  write a Memorandum of Law. This memo explains how the Defendants violated 

the State's statutes on administrative hearings.

Below is a generic Memorandum of Lae taken from a case I am working for a client.

The points of law for the Memorandum are:

 1.  Defendants did not comply with the requirements and procedures for Standing Order 1-96 and they are in default.

2. Plaintiff complied with City policy as it was explained in the MassLive article.

3. The Defendant Hearing Officer was abusive of her power, biased, arbitray, and lacked any substantive evidence in her decision.

These violations of the M.G.L. c 30A s 14 are specifically mentioned in the Statutr ot ptocedure. It is easier to make a case for the Plaintiff  using black letter or case law.

_____________________________________________________________________________

MEMO OF LAW

                       

Pursuant to Massachusetts Superior Court Standing Order 1-96 and M.G.L. chapter 30A, Sec. 14, the Plaintiff respectfully requests that this Court grant a Judgment in his favor. Davis asserts that all of the allegations against the Defendants below are violations of M.G.L. Chapter 30A as a matter of law.

                                                FACTUAL BACKGROUND

1.    On March 21, 2018 the Plaintiff’s vehicle was ticketed by the Defendant City of Worcester’s Department of Public Works employee for an alleged violation of a winter parking ban. (Certified Administrative Record)

2.    The Plaintiff appealed the ticket citing the Defendant City of Worcester published policy of not ticketing vehicles until it begins to snow and the plows come onto the streets. (Certified Administrative record)

3.    Defendant Elvira Guardiola, Parking Administrator, denied the Plaintiff’s Appeal first by letter dated April 13, 2018 and then by formal Hearing on April 26, 2018. (Certified Administrative Record)

4.    On May 10, 2018 the Plaintiff filed this instant Complaint with Worcester Superior Court requesting a Judicial Review of the Administrative Hearing.

The Plaintiff incorporates by reference his Statement of Undisputed Facts filed in conjunction herewith. The allegations against the Defendants should be adjudicated as a matter of law based on the undisputed material facts.

                                      ARGUMENTS

A.   The Defendants Failed to Comply with Standing Order 1-96. 

The Defendants failure to provide the Court and Plaintiff with a transcript (undisputed fact 5) is probative. It has prevented the Plaintiff from presenting a stronger case based on the actual comments of the Parking Administrator at the Formal Appeal Hearing on April 26, 2018.

This lack of compliance to Standing Order 1-96 by defaulting on the transcript could be sufficient for a default ruling in the Plaintiff favor.

B.    The Plaintiff Was Not in Violation of Defendant Snow Policy

The Defendant City of Worcester Assistant Commission of Public Works, Matt Labovites, was interviewed by the public publication “MassLive”.  (Plaintiff Undisputed Fact No. 6)

 In the article, published in February 2016, Mr. Labovites was reported as saying that the Defendant City of Worcester does not ticket vehicles during a winter snow ban until it starts to snow or when the plows come out onto the roads. (Plaintiff’s Undisputed Fact No. 7)

In the article Mr. Laborites also reportedly said that there is one essential rule for when residents should move their vehicles. That rule is “When the plows go out so do the town trucks” (Plaintiff Undisputed Fact No. 7)

In effect the article became a public legal notice regarding the Defendant City of Worcester policy about the winter parking ban. It advised residents of the essential rule of moving vehicles when the plows come out.[1]

Plaintiff parked his car in accordance with the legal notice of Defendant City of Worcester’s snow ban policy as found in the legal notice article in MassLive. It did not snow on March 21, 2018.  (Plaintiff Undisputed Fact No. 11).   

No plows came out onto the streets on that date.  (Plaintiff’s Undisputed Fact No. 9).

C.    There is No Substantive Evidence in the Letter Denying the Plaintiff’s Appeal or Presented by Defendant Guardiola during the Formal Hearing.

The letter written by Defendant Guardiola references a change in the policy of the Co Defendant City of Worcester. She said that the policy of when the ticketing and towing vehicles would not commence until it starts to snow or when the plows come out was changed by the Department of Public Works to an immediate commencement of a winter ban. (Plaintiff’s Undisputed Fact No. 12)

During the Formal Hearing the Defendant Guardiola could not provide a source for her assertion of a changed policy.[2]

The Defendant Guardiola did not provide a single shred of any kind of evidence to support her assertion. She then said that it was not the Department of Public Works that changed the policy but the Worcester Police Department. (Plaintiff’s Undisputed Fact No. 13)

D.   The Defendant Guardiola’s Decision to Deny the Plaintiff Appeal was Arbitrary

    The Defendant Guardiola in her letter dated April 13, 2018, denying the Plaintiff his Appeal stated she based her decision partially on the assertion that the Plaintiff had not made a “compelling rationale”. (Plaintiff’s UNDISPUTED FACT No. 15).

 When the asked at the Formal Hearing what were the elements of a compelling rationale, the Defendant Guardiola did not answer. [3] [4]

E.    The Decision by Defendant Guardiola is Capricious.

The erratic and capacious nature of the decision made by Defendant Guardiola is seen in the two qualitatively different basis given for her decision. The basis first given was that the Department of Public Works changed its policy and therefore the Plaintiff parking was a violation of the new policy. (Undisputed Fact No. 12)   The basis given later by the Defendant Guardiola for her decision was that the Plaintiff is responsible to automatically comply with the ordinance regardless of the City of Worcester policy. (Undisputed Fact No. 16).

On April 13, 2018 the Defendant Guardiola decided that the new City

policy was the basis of her decision. On April 26, 2018 after Mr. Labovites point out there was no new City policy, Defendant Guardiola changed the basis of her denial of the Plaintiff’ Appeal was the Ordinance and not the policy.

Adding to this erratic logic and inconsistency is the statement by the attorney for the Defendants that there is no written policy regarding ticketing and towing vehicles during a winter parking ban.  (Undisputed Fact No. 10)

F.    The Defendant Guardiola Was Unlawfully Biased Against the Plaintiff and His Representative.

The Defendant Guardiola wrote in several places in the Administrative Record including an email to Mr. Labovites that the Plaintiff’s representative is ‘argumentative” and “passive-aggressive.” (Undisputed Fact No. 14)

Guardiola treated the Plaintiff in a disparate manner when she gave him her decision to deny his appeal before the Hearing was over. Guardiola told the Plaintiff that she has a policy of making a determination regarding a ticket the day after the Hearing, however for him she informed him of her decision to deny his appeal before he had gotten out of his seat.[5]

G.   The Decision by Defendant Guardiola to Deny the Plaintiff Appeal is an Abuse of Discretion.

The Defendant Guardiola chose to base her decision to deny the Plaintiff Appeal on creating of new policy for the City of Worcester. This new policy is the automatic compliance to the Ordinance. (Undisputed Fact No. 16)

The Defendant Guardiola is not authorized to create new policy for the City of Worcester. (Undisputed Fact No. 17)

In summary there is overwhelming evidence that the Defendants City of Worcester MA and Elvira Guardiola violated M.G.L. C. 30A s 14.

                                      CONCLUSION

For the reasons set forth above this Court grant the Plaintiff his motions for Judgment in his favor for the violations of M.G.L. c. 30A s 14 by the Defendants City of Worcester and Elvira Guardiola.

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[1] A public legal notice has been defined by “Businessdictionary.com” as “Public posting or advertising in newspapers to announce a legal action or intent.

[2] There are no transcripts to verify this lack of source material by the Defendant Guardiola.

[3] There are not transcripts to verify this lack of response by the Defendant Guardiola.

[4] Arbitrary is defined by “YourDictionary.Com” as

 “Determined or founded on individual discretion, especially when based on one's opinion, judgment, or prejudice, rather than on fixed rules, procedures, or law.”

[5] Although Plaintiff’s advocate witnessed this disparate treatment, the lack of a transcript allows the behavior by the Defendant to be disputed.

FAILURE OF MANAGEMENT

City Manager Augustus             

Failure of Management

Introduction

On March 21, 2018 a resident of the City of Worcester was ticketed for violating the Winter parking ban. It never snowed on March 21, 2018 and the plows never came out.

In February 2016 the Assistant Commissioner of the Worcester Public Works stated in a local newspaper that the City of Worcester policy regarding the Winter Parking Ban was that no cars would be ticketed until it started to snow and the plows came onto the streets.

The  resident of Worcester appealed his ticket and brought the newspaper article to the Hearing before the Parking Administrator as his substantive evidence. The Parking Administrator told the Appellant resident that the City had changed its policy of not ticketing until it started to snow subsequent to the publication of the newspaper article.  The Parking Administrator dismissed the Appeal.

The resident then filed in Worcester Superior Court a request for judicial review of the Administrative Hearing of his ticket. This review is governed by Standing Order 1-96 which allows for discovery.

As a part of the discovery the City of Worcester and the Parking Administrator argued against providing any additional evidence. Their argument came in the form of an Opposition Memo to the Plaintiff’s Motion to present additional evidence to the Court.

City Has No Policy

Curiously the Defendants’ Opposition Memo stated that the City had NO written policy regarding the ticketing of vehicles during a Winter Parking Ban. See photo. The inference of not having a written policy is that the 2016 newspaper article has increased weight as substantive evidence. The Assistant Commissioner does not deny the newspaper article and the City has written that there is no document to contradict the newspaper article.

Since a Parking Administrator does not make policy, there was no City policy upon which to base her decision to dismiss the Appeal. The Parking Administrator, based on the newspaper article, could have allowed the Appeal. Instead it seems that she exceeded the authority of her Department by making new policy which is also not written anywhere for anyone to see.

Failure of Management

The confusion regarding Policy is clearly the blame City Manager Augustus as both the Parking Administrator and the Assistant Commission of Public Works report to him. The excesses of the Parking Administrator is due partially to failure of management by the City Manager.

 It is ironic that the city Manager good high marks and evaluation from the City Council recently.

PARKING TICKET KANGAROO COURT

 Parking Ticket Kangaroo Court

A Complaint to the Superior Court regarding a Judicial Appeal of a Administrative Hearing requires compliance with thw Court's Standing Order 1-96. This means Defendants  Worcester and its Parking Administrator Guardiola have to provide to the Plaintiff  the file of the administrative hearing. 

For the ticket at issue the file included an email thread between the Parking Administrator and the Assistant Commissioner for the Department of Public Works. The email thread is dispositive as it was written AFTER the hearing and shows the biased and unlawfulness of the Defenants' actions.

In the email above the Parking Administrator did NOT know the City's policy on ticketing vehicles and seeks clarification from Mr. Lobavites.

Mr. Lobavites was not able to give an unequivocal policy statement like he had in his 2016 newspaper article. A reasonable fact finding could conclude that the information in the 2016 article is still in effect. 

Please note in the email above the Parking Administrator calls one of the parties "argumentative" and "passive aggressive" This evidence of bias by the Parking Administrator.

In these emails above  Defendant Guardiola raises the issue of protocol as to when the Defendant Worcester begins it ticketing and towing of vehicles. Once against Mr. Lobavites does not give an unequivocal statement of policy or protocol. He seems to be trying to cover his butt.

In this last photo of the email thread the Defendant Guardiola bypasses the issue of the City policy as it described or in this case not described by the Department of Public Works.. The  Plaintiff presented the newspaper article as the City published policy on the ticketing and towing of vehicles. 

This newspaper article is the substantive evidence required by Statute to decide an administrative hearing. The City could not even provide a single document showing its policy on the date of the ticket.

In effect Defendant Guardiola made her decision by ignoring the published policyfThe thread shows that the Parking Administrator did not know the City's protocol regarding the commencement of ticketing and towing vehicles when a snow emergency is declares. 

WORCESTER CITY MANAGER'S JOKE ON US

City Manager's Racial Policy is a Joke

     In 2015 the Worcester City Manager, Edward Augustus, organized the so called race dialogues. He had the Department of Justice participate in the series of meetings. Many in the Worcester community thought that the race dialogues were “a lot of talk and very little action”. 

     This writer called the talks a “joke”. The changes to the so called Affirmative Action Officer position and the lack other developments have shown the race dialogues to be worse than a joke,

      The first sign of that the dialogues were not taken seriously by Manager Augustus was that all of the notes of the race dialogues were lost. There was no serious attempt by the City to recover them.

     Another sign was that the City Manager claimed the police received “bias training”, but no quantifiable evidence of the effectiveness of this or any other police policy has been made public.

 There have been requests that statistics on hate crimes be released to the public, as well as the status of body cam for officers. This information has also been withheld.

There are two organization created by the City that are worse than a joke. They are the Mayor’s Committee against Bias and Hate and the police clergy group. They seem only to meet in order to give cover to the City when there is a crisis. To my knowledge the bias/hate group has never asked the City for the hate crime statistics. Most of the people in these groups sincere, but history has shown them to have been manipulated.

Most recently the so called Affirmative Action Officer position was changed from that of an advocate/ compliance officer to that of a recruiter. This change was done without any formal input from residents.

Many people have expressed disappoint that the new Affirmative Action Officer was hired from within the City government and is beholding to the City Manager not to make any waves by advocating for racial justice.

There is a need for real dialogue among the people who are disparately treated, including White people, and the government.

It was not long ago that the Department of Health held a discussion about homelessness without inviting a single homeless person.  UMASS decided to shut down a clinic in a poor neighborhood before any input from the patients.

So it seems that the City Manager’s race programs and other programs are just a joke on us.

PARKING TICKET LAWSUIT

                                          The Parking Ticket Lawsuit

Elvira Guardiola, Worcester Parking Administrator

                                               

Recently I represented a client at his Formal Appeal Hearing for a parking ticket. It was alleged that he violated the winter ban on March 21, 2018.

It did snow at all on that date and the snowplows never came out onto the streets.

There is a City of Worcester protocol that ticketing of vehicles would not begin until it starts to snow and the plows are on the street. This policy was published in “Masslive “in 2016. The City has never explicitly and publicly retracted, rescinded or withdrawn the policy.  Please see photo below.

The published policy of not ticketing until the snowplows come out was presented to the Parking Administrator. Such evidence is “substantive” evidence. It was enough to show that the ticketing of my client’s vehicle was contrary to City DPW policy and to have the ticket dismissed.

Instead of dismissing the ticket the Parking Administrator developed a false theory of law which is not found in MGL c. 30A, s 14. The statute governs Administrative Hearings. The Parking Administrator called her false theory “compelling argument”.

The statute indicates that Administrative Hearing decisions are based on “substantive evidence” and not compelling argument. A hearing is not a forensic debate.

The Parking Administrator then told us that she had met with Assistant DPW Commissioner Lobovites about the City’s policy on ticketing. She then changed her mind and said she met with a manger, Mr. Kempton.  The Parking Administrator could not give the date of any such meeting.

I made a phone call to Mr. Kempton who said that as far as he knew Ms. Guardiola never met with him or Mr. Lobovites about the ticket at issue. Mr. Kempton did say that the Parking Administrator sent an email to Mr. Lobovites.

According to Mr. Kempton the answer sent by Mr. Lobovites did not support Ms. Guardiola claim that the policy of not ticketing cars until its snow was no longer in effect. Even if was not in effect, the reversal was never made public.

Given the serious misunderstanding of the law and the seemingly false statements made by the Parking Administrator. My client has decided to sue the City in order to bring the Office of Parking Administration into compliance with the State’s statutes. Please see photo below.

DAVIS VS. CHARLIE BAKER

DAVIS VS. CHARLIE BAKER

   My former employer, the Commonwealth of Massachusetts,

 has refused to provide to me a copy of my personnel record. 

A part of the personnel record is maintained by the 

Massachusetts Commission Against Discrimination (MCAD)

 and another part of my personnel record is maintained by

 Massachusetts Human Resources Division (MHRD)

.

     Massachusetts General Laws (MGL), chap. 149, sec. 52C 

requires employer to maintain personnel records and allow 

employees a copy of and access to their records at least twice a 

year.  The Commonwealth has refused me access to my records.

     In 2017 I litigated the issue. The Court dismissed my 

complaint. It ruled that I did not have a right of private action

 except in the case of correcting or expunging false items. The 

inference is that the request that I made for my personnel 

records were inappropriately worded. I have rewritten the

requests. See below.

     The Court did not order the Attorney General to enforce

 Chap. 149.  There might be a separation of power issue in that 

the judicial branch of government can not evaluate how the

executive branch evaluates and carries out its responsibilities

unless specifically written in the statute.

     Should the Commonwealth again refuse to provide to me a

 copy or access to my records, it makes sense to skip the 

Attorney General and bring a complaint against the CEO of 

the Commonwealth, Governor Charlie Baker.

Chief Human Resources Officer

Massachusetts Human Resources Division

1 Ashburton Place, Room 301

Boston MA  02108

Re: Request Personnel Records

Dear Sir or Madam:

Please accept this letter as the request for my Personnel Records per M.G. L. Chapter 149, Sec. 52C.

I was an employee of the Commonwealth of Massachusetts working for the Massachusetts Commission Against Discrimination from September 2006 to April 2010.

The issue of my records has been litigated. The Court has ruled that I can receive a copy of my personnel record in order to correct and/or expunge false items. Please see attached Court ruling.

Mass. AG Policy on Enforcement of Chapter 149 Needs Fixing

Why Massachusetts Attorney General’s Policy for Enforcement of Chapter 149 Needs Fixing

The Court dismissed my suit against the Massachusetts Human Resources Division (MHRS) and the Attorney General of Massachusetts (AG). The Court ruled that I could not get my employee personnel record from the MHRD because of a limited right of private action (the right of private action is the authorization of the plaintiff to sue).

The Court also dismissed my demand that the AG office produce their policy regarding Chapter 149, sec. 52C (Chap. 149,).   However the AG stated it policy regarding the Stature in in Pleadings. Based on the policy found in the Pleading, is possible to analyze with some certainty the AG’s methods for enforcement of the Stature

Curiously the Court concluded that I had asked it to compel the AG to enforce the statute. This was a misinterpretation of the complaint. The complaint demand only from the AG that it provide a written copy of its policy regarding the enforcement of Chapter 149.

The AG policy on Chap. 149 based on its pleadings and other court documents is the following.

1.     There is no right to private action and only the AG can enforce the statute.

The Court has ruled that a plaintiff has the right of private action when it comes to the expungement or correction of items in the employee’s personnel file. [1] See images below

2.     The AG policy is that the Commonwealth of Massachusetts and its political subdivisions are not required to provide employees’ their file per Chap. 149.

The Court did not rule on this issue.

3.     The AG enforcement of Chapter 149 is outside of the jurisdiction of the Courts.

The Court ruled it had no jurisdiction in the enforcement of Chap. 149 by the AG.

The impact of this ruling is that not one employee of the Commonwealth of its political sub divisions can obtain their employee file, except at the pleasure of the Commonwealth. The AG policy is Chap. 149 does apply to the Commonwealth of Massachusetts.

Another consequence of the AG policy is that no employee working for a private company can compel through the courts his company to produce his personnel file.

There are several ways to correct this arrogance of power by the AG. The first is to request the legislature to add the right of private action expressly in Chap. 149.

The other way to use the tiny opening given by the Court for a private action to “expunge” or correct a personnel file. There is a logical necessity to the correcting of a personnel file and that logical necessity is that the employee requires a copy of his personnel file in order to correct it.

It is likely that both paths will be pursued

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[1] Court Ruling November 15, 2017, page 2, footnote 4