(The opinions and views expressed in the commentaries and letters to the Editor of The Somerville Times belong solely to the authors and do not reflect the views or opinions of The Somerville Times, its staff or publishers)

By Chris Dwan

Somerville’s ballot question number three passed last week with 55% of the votes. It instructs the Mayor and City Council to “end all current city business and prohibit future city investments and contracts with companies as long as such companies engage in business that sustains Israel’s apartheid, genocide, and illegal occupation of Palestine.”

While the measure is technically non-binding, I hope that Mayor Wilson and the new council will act swiftly and thoughtfully. We should take this opportunity to build a framework that allows us to spend in accordance with our ethics, and that takes care to avoid burdening the city with lawsuits and credible accusations of discrimination. Put another way, it’s time for our elected leaders to move past divisive campaign rhetoric and govern.

This post attempts to lay out the challenges that I see for any boycott or divestment at the municipal level. At the end, I propose an approach that I think could be effective. Somerville has decided that it’s time to do this, so here’s my starting point on how we might do it well.

The Challenges

Binding the city from doing business with bad-actor companies is more complex than similar choices made as an individual or a family. When I decide to go to Market Basket or Pemberton Farms rather than Whole Foods or Target, I don’t have to explain my reasoning to anybody, and any differences in cost or quality fall only on my family. The city, by contrast, uses formal purchasing processes that are subject to open meeting law and regulation at the state level. Staff authors hundreds of Requests For Proposals (RFPs) per year. These describe in meticulous detail the work to be done, the qualifications required to bid, and how the decision will be made.

In most cases, we are required by law to award the contract to the lowest qualifying bid. A boycott means, among other things, that we will be turning down otherwise qualified low bids based on the identity of the bidder. In other words, the city is going to choose to pay more to get the same work done. That’s not wrong — I pay more for notionally similar stuff all the time — but good governance (and good financial stewardship) requires that we be aware of that tradeoff rather than pretending that it doesn’t exist.

Documentation of the bid process becomes public once the contract is awarded, and vendors review the docs to see why they lost. If there is any wiggle room in our reasoning for denying an otherwise qualified low bid, the loser will file complaints with the state and/or sue the city. If our processes are casual, sloppy, or inappropriately biased, then we will (and should) lose.

Getting sued is nothing new. People are constantly suing the city over perceived slights and (occasionally) actual wrongs. These lawsuits and related complaints soak up a huge amount of time and civic energy that could be better spent on other things. The drain is not limited to the law department. The mayor’s office and the council sit through interminable “executive sessions” discussing pending litigation out of the public eye. These private updates push the public portion of council meetings later into the night, sapping time and attention away from other pressing issues.

The impact of legal losses will stretch far beyond Somerville: If we implement a boycott badly and then lose in court, it will establish a precedent that will discourage other cities from making similar moves. Of course, the reverse is also true — Somerville has an opportunity to take a leadership role, win against the inevitable challenges, and once again become a model for the rest of the state.

Investment is another case where my personal decisions are very different from those of the city’s finance department. If I choose to avoid whole sectors of the market (fossil fuels, weapons, tobacco, and anything owned by Elon Musk are my starting point), that decision only impacts me. A similar decision by the city’s pension fund manager has the potential to negatively impact the retirement accounts of thousands of current and former employees.

An investment manager‘s job is to find safe, legal places to keep their clients’ money so it can generate consistent returns. One of the ways they do this is through diversification. Reducing the available options makes that job harder. Acting on our morals will likely mean accepting lower returns on the city’s holdings. Somerville’s choice to divest will not, by itself, magically cause what remains of the available market to suddenly become the best financial choice. That said, if we do this well and others follow our lead, the resultant wave of divestment might do the job. Complicating things still further, we are likely to need to ask the state’s permission to tinker with our pensions via a Home Rule Petition.

We need to be smart and accept that there are practical limits to how much we can do before our ethical choices to boycott and divestment create an unacceptable risk to the city’s financial stability. The mayor, with the Council’s advice, needs to make this a calculated decision on costs and benefits.

A Proposal

Mayor Wilson should create a commission to develop and maintain a list of companies with whom the city prefers not to do business. This list needs to name specific companies, list their objectionable behaviors, and be particular about what they would need to do to get back in our good graces. These recommendations should, wherever possible, build on external guidance from national and international organizations like the United Nations, the ACLU, or the SPLC. Involving these groups at the beginning opens the possibility that they will get involved in the inevitable lawsuits. Having their help would spread out the work and reduce the cost. As I said above, winning (or losing) in court creates a precedent that might embolden (or discourage) other cities from following our lead, so when we do this, it’s important to do it right.

The commission should publish a clear decision framework showing what factors they consider, and ensure that they apply the same standards to everybody. It should also review the list at least annually, removing companies that have ceased their bad behavior. While we’re at it, the commission should also have the remit to specify products and technologies that the city should avoid — no matter who is selling them.

The mayor should task the law and finance departments to create a standard operating procedure (SOP) detailing exactly how we will implement these recommendations in our purchasing and investment processes. Important things come out in the process of really thinking through and writing down the details. “Don’t buy from HP” is different from “don’t buy any HP products,” which is also distinct from “don’t buy products that include components made by HP,” which is wildly different from “don’t do business with companies that do business with HP.” It would be unfair, inappropriate, and legally risky to push this sort of decision down to the staff level.

Our purchasing and investment SOP should also describe the conditions and timelines under which the city might choose to defer or even ignore the recommendations of the commission. We live in an age of unregulated corporate and technological monopolies. Moving away from certain massive companies (Microsoft, Amazon, and Google in particular) is challenging. Any such moves will need to be incremental unless we are willing to accept massive disruptions in city services.

The city council should review and endorse all of this. Our surveillance oversight ordinance provides a great framework for this sort of reporting and review. The council should also establish a formal process to allow the public to put companies and products before the commission without the massive effort and slow timelines of another ballot measure.

It’s worth calling out that I am absolutely not suggesting yet another consultant-led boondoggle. We have too many expensive reports that were out of date by the time they were published, and that were created with no thought to who might implement them or when. Rather, I am suggesting that we act swiftly to put in the work required to turn the admirable intent behind the ballot measure into practical and effective municipal government.

Coda

Real talk: I was planning to write this article no matter how the vote went.

I waited because I knew that no matter what I said, people were going to be angry. I could not see any way to write this during the campaign that would have done anything other than be dismissed out of hand, further inflame an already fraught conversation, or both.

If I thought for a moment that the Council or the Mayor could act directly to spare any of the victims of Israel’s murderous and genocidal campaign, I would enthusiastically support it. Unfortunately, nothing we do in law or policy here in Somerville will stop even one bullet or provide even one meal in Gaza. The impact will be mostly, maybe entirely, felt in Somerville itself.

Let’s be smart and get it right.