Jul 22, 2013 link to article
When Leominster Mayor Dean J. Mazzarella recently found out that his city had been failing to collect potentially thousands of dollars in fee income that private constables are required to pay local governments, he opted for a simple, swift response. Two weeks ago, the mayor dispatched letters to the dozen or so constables operating in Leominster informing them that from now on they must pay 25 percent of the fees they collect for serving court papers, as stipulated by Chapter 41, Sections 95A and 95B of the Massachusetts General Laws. “We never took any money in, but now they’ll have to comply, or we won’t reappoint them,” Mr. Mazzarella said. As it turns out, the situation in Leominster is not unique. In that city, only one constable had been paying the fees and filing the annual revenue report he is required to under the law enacted by the Legislature in 2003. In Worcester, for example, even the city’s own contracted vendor for constable services, Francis J. Trapasso and Associates, isn’t paying, yet the city has continued to regularly renew the company’s contracts and reappoint Mr. Trapasso and other constables who don’t pay. None of the other major private constable services working out of Worcester’s busy courthouse are paying either, depriving the city of revenues and flouting a law that former Gov. Mitt Romney and state lawmakers put on the books to help raise money for local municipalities. A doubling of civil process fees accompanied the legislation. Meanwhile, the civil process division of the Worcester County Sheriff’s office, which is under a similar mandate to return 25 percent of its fee revenues to the state, has turned over nearly $1 million since 2010.
Across Central Massachusetts, most city and town treasurers are routinely neglecting to collect the fees and reports, and constables are similarly failing to comply with the law, a Telegram & Gazette survey of about a dozen communities found. A few communities, including Oxford, recently started sending out demand letters. Both sides cite a litany of excuses. City officials and treasurers complain that the law lacks an enforcement provision, that they are too busy, that constables — many of whom are former police officers — can be intimidating, and that the amounts they would collect would be negligible compared to other revenues sources. In a prepared statement, Worcester City Manager Michael V. O’Brien defended the city’s practice of not enforcing the law. He refused to say whether he would tie reappointment of constables to their compliance with the law. “This provision was passed by the state without input from any city or town. We look forward to a day that legislative changes make this practice structural and doable, versus cumbersome, impractical, political, and far too time consuming for the pennies collected,” Mr. O’Brien said. “Pursuing these minimal returns would be a drain on the great work of the treasurer’s office.” And several well-known constables who acknowledged to the T&G that they have not been paying justified their non-compliance by arguing that the requirement is financially onerous and unfair and that communities don’t enforce the provision. A few constables who have been turning over the required fee revenue say that while they don’t like the law, they obey it because they feel they can’t choose which laws to follow. “Do you understand how many things I, and all treasurers, have on my plate?” said Shrewsbury’s town treasurer, Carolyn Marcotte. “I haven’t had any constable turn over any report. There’s no enforcement provision. It’s incumbent on them.”
“I am aware of the law, but I have not seen any amount of money I can speak to,” said Sharon A. Lowder, treasurer-collector in Holden, adding that she has never sent out a demand letter for the fees. “If they don’t report something ... we have no way to know,” said Joanne Savignac, Westboro treasurer-collector. “If I were to go after this, you’re talking about police officers to go after. And when you’re talking about constables, it’s such a small piece of the pie.” When informed of the law last week, David R. Laplante, the Leominster treasurer, looked into it and found out that only one constable had paid the city. Mr. Laplante brought the issue to the mayor, who decided to use the appointment provision as a form of enforcement. In reality, not reappointing constables confers only so much enforcement power. First, constables are elected in many communities, though the law still applies to them. Also, constables can work in communities outside the one they are appointed in by obtaining a court order known as a 4C that is routinely handed out by court officials. Sheriff’s deputies do not need a 4C. As for the constables, Mr. Trapasso, whose company did more than $60,000 in business last year under its city contract, in addition to its other business, argued that most of his city jobs do not fall under the requirement to pay a percentage of the fees. That is because they are not court documents but rather documents from city departments, such as inspection notices, he said. However, Mr. Trapasso acknowledged that his company, which has six employees, has not been paying the fees associated with court documents, as the law specifies. “It’s kind of an unwritten rule — no one’s doing it,” he said. “It’s totally unfair. How would you like to take half your salary and pay it to the city? “They slipped it in,” he said of the 2003 law. Another constable who does a high volume of court business in Worcester, Denise Lecuyer, appeared not to be familiar with the law and its requirements.
“I don’t know what you’re talking about,” she told a reporter who asked why she had not been paying the fees to the city. The issue recently came to light when David H. Tuttle, chief deputy sheriff for Worcester County Sheriff Lewis G. Evangelidis, sent a public records request to the Worcester city treasurer-collector, Mariann Castelli Hier, asking for records of all fees and reports from 10 constables in the city, including Ms. Lecuyer and Mr. Trapasso. “Please be advised that no fees have been received and that the Treasury Department does not have the reports requested,” Ms. Hier responded on June 6. The civil process division, which Mr. Tuttle heads, essentially is in competition with private constable companies. Like the constables, the sheriff’s deputies who work for the civil process division deliver court documents and make civil arrests under the so-called “capias” process. The sheriff’s deputies and the constables generally charge the same fees, which are set by law. During the tough economy of recent years, though, Mr. Tuttle argued that the private constables have started to take business away from the sheriff’s division because they have an unfair advantage since most don’t pay the 25 percent of their fees. Mr. Tuttle also maintained that sheriff’s deputies are better trained and educated and more professional than constables on the whole; he noted that the deputies always wear their uniforms. While many constables wear street clothes, they counter that they are just as qualified to serve papers. Just like its constable counterparts, the civil process division, which is a nonprofit company, is also required by law to pay 25 percent of its civil process revenue — about $1.2 million a year in total — to the state. Mr. Tuttle provided a spreadsheet from the Massachusetts Sheriffs Association showing that the Worcester County sheriff’s department paid the state $269,944 in fiscal 2012; $337,521 in fiscal 2011; and $346,481 in fiscal 2010.
“We’re competing against people who are supposed to be enforcing the law, yet have a total disregard for the law,” Mr. Tuttle said. “It’s the city that’s losing, and the taxpayers. “No one is questioning their right to operate,” Mr. Tuttle continued. “We’re all constables, but we’re all sworn to uphold the law, yet they’re not following the law and they’re cheating the taxpayers.” One constable who has been paying his fees and filing annual reports, Arthur C. Tatro, said he has done so unhappily. Mr. Tatro said he paid the town of Spencer about $500 last year. “Would anyone else like to give up 25 percent of their income?” asked Mr. Tatro, a former Spencer police officer. “I’m kind of a black and white guy. I don’t believe in it, but it’s the law. I’m doing what I’m supposed to do.” Another constable who pays up, Alan R. Jeskey, a former police dispatcher from Southbridge, makes small annual payments in Southbridge, Oxford, Webster and West Brookfield. Mr. Jeskey, who operates largely on a part-time basis, said his business is small and he doesn’t really compete with bigger outfits. He said paying the fees grates on him sometimes, but “in a way, I’m proud to give back to my towns.” Not so for constable Edward Moynihan of Worcester, who runs Edward George & Associates as a sole proprietorship. Mr. Moynihan, one of the busiest constables in the city, said it would be financially untenable for him to lose 25 percent of his income. After it became law a decade ago, Mr. Moynihan said he “made a business decision” not to pay the fees to the city. Like other constables, he argued that the law is unfair and he noted that constables cannot pass on the increased cost of doing business to customers because fees are set by law. “It would have put me at a competitive disadvantage,” he said. “I would have gone out of business.”