Quaverly Rothenberg, the one-term Northampton city councilor who in November lost her bid for reelection by 20 points, appears to be going out with a bang. She has sued City Councilors Alex Jarrett, Marissa Elkins and Stanley Moulton and the city in federal court seeking money damages.
The three councilors’ alleged transgression? On March 12, 2025, they sponsored “A Resolution Censuring Councilor Rothenberg for Conduct During Public Safety Dispatch Call of February 18, 2025.” The Resolution passed 7-1.
The call’s content is not in dispute. The recording is posted. Please, do listen. So is the resolution and the video of the meeting where it was adopted.
During that call to Public Safety, made during a terrible winter storm, Councilor Rothenberg insisted that the dispatcher connect her with the DPW emergency person in charge. The dispatchers responded that they were not allowed to give out cell phone or emergency numbers.
But they did ask her several times for the location or locations of the ice problems, information that would allow them to notify the DPW where salt and sand were needed. In the end Rothenberg provided only one address — hers. She also said that she wanted to speak to the person in charge to represent her constituents.
Councilor Rothenberg, when making her demands, informed the dispatchers that she was the councilor from Ward 3, that “the City Council outranks the mayor” and that “everyone in the city works for the City Council.” Really, she said that.
In response to dispatch offering her the public DPW number, she responded, “I’m not the public. I’m a city councilor.” She later said, “Do you understand what a city councilor is and how the government is structured?”
When a dispatcher suggested that she contact the DPW Director Donna LaScaleia, Rothenberg said, “It is my understanding that Donna resigned today.” Ms. LaScaleia had not resigned, and she still heads the DPW.
The first of the resolution’s eleven “Whereas” clauses quotes the city charter’s prohibition against a councilor giving directions to any city employee appointed by the mayor. The second sets forth the provision that, “(t)he executive powers of the city shall be vested solely in the mayor …”
The next “Whereas” references the state ethics law prohibiting public officials from using their position to secure “unwarranted privileges not properly available to similarly situated individuals.”
Following that, the resolution says that the Councilor Rothenberg “violated the City charter,” and “potentially violated Massachusetts rules and laws governing the ethical conduct of public officials, harassed city employees and generally behaved in a manner unbecoming a city councilor.”
Rothenberg’s lawsuit alleges that the censure resolution violates her First Amendment rights to free speech and to petition the government for a redress of grievances and for similar reasons, violates the state Civil Rights Act. There’s a claim against the city for negligently failing to supervise and train the three councilors. Who could legally supervise elected officials goes unexplained. There is also a claim for defamation.
Defamation is a civil wrong, the tort of harming someone’s reputation by communicating false statements about them. Truth is an absolute defense, so identifying the untrue statement (can you find one?) is a critical element.
And the bar is higher than that. In a defamation claim against public officials the federal constitution requires a plaintiff to prove that the defendant(s) made the defamatory statements with malice. Malice in this context means that the elected officials intentionally published falsehoods, knowing they were untrue or with reckless disregard for their falsity.
Another constitutional issue is lurking here. Substituting a court’s judgment for an exclusively legislative prerogative raises the specter of a separation of powers violation.
But before getting to any of that, there’s an initial constitutional obstacle that Rothenberg must overcome — legislative immunity. If legislative immunity applies, the case must be dismissed.
An understanding of legislative immunity begins with the federal Constitution’s Speech or Debate Clause. That Clause provides that U.S. House and Senate members and their staff cannot be sued for words they say or write while engaged in a legislative function. “Senators and Representatives … shall be privileged for any Speech or Debate … (and) shall not be questioned (about it) in any other Place.”
The doctrine applies equally to state legislatures and legislators. And the Massachusetts Constitution contains a very similar protection.
In1989, in Bogan v. Scott-Harris, a case from Fall River, Massachusetts, the Supreme Court made clear that local legislators are cloaked with the same absolute immunity as their state and federal counterparts. That absolute immunity covers all actions taken “in the sphere of legitimate legislative activity.”
The court’s rationale? Legislative discretion, federal, state and local, “should not be inhibited by judicial interference or distorted by fear of personal liability.” Drafting a law or ordinance involves a quintessentially legislative function. So does a legislature considering a member’s alleged disregard of its rules and norms.
Predicting the results of a litigation at the start generally stands on uncertain ground. But here the doctrine of legislative immunity portends that Rothenberg’s litigation is apt to end, in T.S. Eliot’s words, “not with a bang but a whimper.”
Bill Newman is an attorney and a radio host on WHMP’s “Talk the Talk.”