Providence

Comments | Recommended

City solicitor defends Law Department

01:00 AM EDT on Thursday, May 22, 2008

By Gregory Smith

Journal Staff Writer

PROVIDENCE — First a Municipal Court judge threw out 13 cases when an assistant city prosecutor failed to show up in the courtroom.

Then the city lost a personal-injury lawsuit in Superior Court because the city failed to keep track of the case and did not put up a fight.

It has not been a good month for the city Law Department.

City Councilman John J. Lombardi, a critic of City Solicitor Joseph M. Fernandez, brought to light the missteps in the Municipal and Superior courts. They are part of a pattern of bad decisions and bungles by the Law Department during Fernandez’ tenure as department chief, Lombardi said.

Fernandez ought to quit, said Lombardi. In addition to the recent problems in the Municipal and Superior courts, Lombardi cited a list of nine cases and incidents that he made public when he voted against the solicitor’s reappointment last year.

Fernandez replied, “It’s not news that John Lombardi would criticize me or the administration” of Mayor David N. Cicilline.

Lombardi’s nine-item list includes, for example, the removal of the Ten Commandments monument from Roger Williams Park in 2004 and an assistant solicitor missing a court deadline to appeal a downtown zoning matter in 2004. The Law Department facilitated the removal of the monument without consideration by the Board of Park Commissioners and City Council that critics contended was required by law.

The most recent troubles began last month, when Judge Anthony A. Giannini Jr. dismissed 13 cases: One ordinance violation, three motor vehicle moving violations and nine arrest warrants.

Senior Assistant City Solicitor Sara Rapport was supposed to have been in the courtroom that day, April 16, to prosecute. But she came down with the flu, overslept and failed to arrange for a replacement, according to an apologetic telephone message that she later left with the judge.

Rapport herself had been filling in at the court, preparatory to Fernandez and Deputy City Solicitor Adrienne Southgate turning over the job of prosecutor to Bernice Stone, a lawyer who is not a member of the department staff. Stone was present in court on the day of the dismissals but apparently not yet authorized to represent the city.

Fernandez and Southgate said Stone called them to report the problem but that she was not able to reach either of them. And it was not clear if anyone from the court telephoned anyone else in the Law Department to say that a substitute prosecutor needed to be sent right away.

Municipal Court Clerk Lou Pavao said someone on his staff or a police officer assigned to the court would have called, but Southgate denied that anyone did.

“He’s, of course, right, since all the i’s weren’t dotted and the t’s weren’t crossed,” Fernandez said of Giannini’s decision to dismiss. “It’s an extremely unusual thing. It’s a mistake.”

Referring to the Municipal and Superior Court cases, Fernandez said, “These are isolated incidents … that do not reflect the generally superb work of my office.”

But he added, “We are reviewing our procedures to assure that these sorts of things do not happen again.”

Giannini said he dismissed the cases because the defendants, some with their lawyers, were present but that a prosecutor was not.

“These people take the day out of work, they bring their lawyer in” to defend themselves, he said. When the shoe is on the other foot and a defendant is not present, then a judgment usually is entered against the absent defendant, he pointed out.

The judge minimized the dismissals and said that he would have continued to another date any matter that would have been of serious importance for the city. If he reschedules a case, not only must the defendant return, but a police officer who is a prosecution witness and is usually in court on overtime pay must return, too, at additional cost to the city. And the offense at issue, he noted, might carry only a $25 fine.

As for the absence of a prosecutor, Giannini said, it has occurred perhaps three or four times in his 17 years on the bench.

Regarding the lawsuit, Fernandez acknowledged that the city lost, by default judgment, a lawsuit titled Phyllis Boccanfuso vs. Stephen Napolitano. Napolitano, as city treasurer, usually is named as a defendant in lawsuits that seek money from the city.

A judge awarded $96,471 to Boccanfuso, 67, who fell because of loose and missing cobblestones in the plaza outside the Cathedral of SS. Peter & Paul downtown and fractured her shoulder.

The city has 600 pending civil cases, of which 300 are active, according to Fernandez, and the vast bulk are resolved before a trial.

“This is a mistake, to be sure,” Fernandez said of his department having lost track of the case. “But it is our best judgment that liability and damages are appropriate.

“It is the opinions of my lawyers that the evidence strongly suggested liability [for the city] and significant medical bills, lost wages and permanent injury.”

Lombardi also criticized the department’s decision to hire an outside lawyer to prosecute cases in Municipal Court, at an extra cost to the city, rather than assigning a staff lawyer.

Southgate said the department is authorized to have 16 lawyers and two paralegals but that because of vacancies and one or more maternity leaves, only the two paralegals and 11 lawyers are available to work.

She has hired Stone on a contract basis, she said, rather than make a permanent staff hire that she might have to lay off later because of the city’s fiscal struggle. Southgate described Stone as an experienced litigator.

Among the departed is Rapport, who last week left her $78,814-a-year post, reducing the department’s complement of lawyers to 11.

“Her leaving had nothing to do with the Municipal Court situation,” Southgate said Tuesday.

gsmith@projo.com

Advertisement

Reader Reaction