Saturday, May 07, 2005

Kressel, Devine and McCrea file suit against City Council

On Friday, May 6, 2005 Plaintiffs Shirley Kressel, Kathleen Devine and I filed suit against the Boston City Council to enforce the Open Meeting Law. The complaint is as follows:

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS SUPERIOR COURT C.A. No.
)Kevin McCrea, Shirley Kressel, )Kathleen Devine ) Plaintiffs ) )v. ) )Michael F. Flaherty and the )Boston City Council ) ) Defendants ) )
COMPLAINT FOR ORDER REQUIRING THE BOSTON CITY COUNCIL TO COMPLY WITH THE OPEN MEETING LAW
1. This is an action for an order requiring the Boston City Council to carry out the provisions of the Open Meeting Law, M.G.L. c.39 sec. 23B. Despite the clear language of c.39 sec. 23B and a determination by the Suffolk County District Attorney’s office, the defendants, Boston City Council and Council President Flaherty continue to conduct meetings in violation of the Open Meeting Law. Based on these actions, Plaintiff’s McCrea, Devine, and Kressel ask the Court to issue an appropriate order requiring the Boston City Council to carry out all provisions of the Open Meeting Law for all future meetings. In addition it is requested the Court take remedial actions for past meetings.
JURISDICTION AND VENUE2. This action is brought under G.L. c. 39 sec. 23B §1.3. Venue is appropriate pursuant to G.L. c. 223, §1and 9.PARTIES4. Plaintiff Kevin McCrea is a registered voter residing in the City of Boston in the Commonwealth of Massachusetts.5. Plaintiff Shirley Kressel is a registered voter residing in the City of Boston in the Commonwealth of Massachusetts. 6. Plaintiff Kathleen Devine is registered voter residing in the City of Boston in the Commonwealth of Massachusetts. 7. Defendant Boston City Council is a governmental body within the City of Boston governed by M.G.L. c. 39 Section 23B.8. Defendant Michael F. Flaherty is a City Councilor and is the President of the Boston City Council. The President is responsible for convening and overseeing meetings of the Boston City Council. FACTS9. The Boston City Council (hereinafter referred to as “City Council”) regularly holds meetings for the purpose of deciding on or deliberating towards decisions.10. There are 13 members of the Boston City Council. A quorum of the City Council is 7 members. 11. On February 5, 2003 Councilor Felix Arroyo, in response to a BRA effort to extend Boston's Urban Renewal Plans without the required City Council review, filed for a public hearing on the issue. No hearing was scheduled by the City Council President. (see attachment 1)12. On June 3, 2003, an unnoticed meeting of City Council was held in Council President Michael Flaherty’s office to discuss a BRA request for Council approval of Urban Renewal Plan extensions. After this meeting, another meeting, to be followed by a series of meetings, on this topic, were planned. (see attachment 2)13. On June 19, 2003, the first of these unnoticed meetings was held in the City Council Curley Room. Plaintiff Kressel learned of the meeting, requested permission to attend and did attend. She observed that the purpose of the meeting was for the BRA to provide information to the Council that would allay Council objections and encourage Council acceptance of the Urban Renewal Plan extensions.14. On August 14, 2003, the BRA Director, Mark Maloney, hosted a meeting with the City Council to discuss “the future of Boston’s Urban Renewal Program.” (see attachment 3)15. On September 17, 2003, Councilor Flaherty sent an invitation to all Councilors for regular monthly meetings “relative to urban renewal” with the BRA in the BRA Director's conference room. (see attachment 4)16. Councilor Felix Arroyo wrote several letters to the City Council and the BRA expressing concern that these meetings violated the Open Meeting Law. (see attachments 5,6,7)
17. On August 31, 2004 the BRA notified all members of the City Council of the schedule of monthly meetings of city councilors and the BRA. All councilors were invited to attend each meeting. The first meeting was scheduled for September 23, 2004. (see attachment 8)18. On December 15, 2004 the City Council approved with 8 votes a BRA proposal for Urban Renewal Plan Extensions. 19. On January 20, 2005 the City Council held a “councilor’s only meeting” to discuss Boston University exposing three of its researchers to Tularemia. (see attachment 9) .20. As a result of this meeting referred to in paragraph 11, Plaintiff Devine complained to the Suffolk County District Attorney’s office. ( See attachment 10)21. After investigation and pursuant to M.G.L. c 39 Section 23A – 24, on or about March 21, 2005, The District Attorney’s office issued a notice to Michael F. Flaherty as President of the City Council explaining that the January 20, 2005 meeting was in violation of the Open Meeting Law. (see attachment 11). 22. The notice to President Flaherty made clear that “any meeting to which all City Councilors are invited should be posted pursuant to the Open Meeting Law.”23. On March 24, 2005 all City councilors were invited to attend a ”Monthly Council Conversations with BRA Director” meeting with the Boston Redevelopment Agency (BRA). (see attachment 8)24. This City Council meeting with the BRA was for the purpose of addressing BRA projects and zoning issues. .25. At least seven City Councilors attended this March 24, 2005 meeting with the BRA referenced in paragraphs 23 and 24. 26. The meeting and the public being barred was reported in the press. (see attachments 12 and 13)27. The topics discussed at the March 24, 2005 meeting referenced above do not meet any of the exceptions listed in c.39 Sec. 23B. 28. There was no notice of the meeting of March 24,2005 filed with the clerk of the City of Boston. 29. There was no public posting of a notice of the meeting of March 24, 2005. . 30. There were no records of the meeting of March 24, 2005 made available to the public. 31. As a result of this meeting, Plaintiff McCrea complained to the Suffolk County District Attorney's office by letter and fax. Two subsequent letters were sent to the District Attorney's office with no reply as of this date. (see attachment 14)32. On Wednesday, March 27, 2005 the scheduled “Monthly Council Conversations with BRA Director” for Thursday March 28, 2005 was cancelled.33. On March 27, 2005 Plaintiff McCrea contacted Ellen Harrower of the BRA, who sent the invitation of the meeting to all the Boston City Councilors, and asked whether the Thursday March 28, 2005 meeting was cancelled and why. She replied “Let me be perfectly clear. I am not answering your questions. My name is Ellen Harrower.” She then referred Plaintiff McCrea to Susan Ellesbury of the BRA, who did not return a phone call.34. On Friday April 29, 2005 Plaintiff McCrea talked on the phone with Ellen Harrower of the BRA who informed him that the meeting was cancelled because the BRA needed to prepare for a 2 p.m. board meeting, but that the May 26, 2005 “Monthly Council Conversations with BRA Director” was still scheduled. (see attachment 8)35. The BRA, the Mayor's office and the City Council have been in the process of rewriting the zoning code. This has been done without a proper public vetting process. (see attachment 15)36. As of this date, no action has been taken by the District Attorney's office to enforce the Open Meeting Law, in relationship to these meetings between the City Council and the BRA. COUNT I37. The plaintiffs incorporate by reference paragraphs 1 through 36of this Complaint.38. Despite being warned, the Boston City Council continues to flagrantly ignore the requirements of the Open Meeting Law. 39. Since all meetings of a governmental body shall be open to the public, the actions of the Boston City Council are in violation of M.G. L. c. 39 sec. 23B.40. Boston City Government is in the process of amending the zoning code. From a public policy viewpoint, not doing this in an open transparent way is inconsistent with the wording and intent of the Open Meeting Law.41. The Boston City Council voted to extend the Urban Renewal Plans after a series of meetings on that subject that violated the Open Meeting Law. From a public policy viewpoint, not conducting these meetings in an open transparent way is inconsistent with the wording and intent of the Open Meeting Law.
WHEREFORE, the plaintiffs respectfully request that the Court:
a. Adjudge and declare that the Boston City Council is in violation of the Open Meeting Law.
b. Issue an appropriate order requiring the Boston City Council to carry out the provisions of the Open Meeting Law at all future meetings.
c. Order that all records of any meetings held in violation of the Open Meeting Law be made public.
d. Order that the Boston City Council not be allowed to go into Executive Session without proper advance notice to the public.
e. Order the Boston City Council to cease and desist violating the Open Meeting Law.
f. Order civil damages against the Boston City Council for the costs incurred in bringing this action.
g. Invalidate any action taken at any meetings at which any provision of the open meeting law has been violated.

h. Invalidate the December 15, 2004 vote by the City Council approvoving the BRA proposal for Urban Renewal Plan extensions.
i. Award such other relief as the Court finds just and proper.

Respectfully SubmittedKevin McCrea218 West Springfield StreetBoston, MA 02118617-267-2453



Dated: May , 2005

1 comment:

the sak said...

Our council routinely denies or delays access to its public records of proceedings and transactions. For example council minutes are too spare, too brief as to make it easier for most ordinary folks to comprehend what transpired, what proceedings occurred, what were the transactions and the docket numbers are not indexed. Yet the council budget includes a public stenographer and a stenographic machine. The stenographic machine output is not available. The uneditied transcribed stenographic machine output is not available. The attitude of council staff puts off enquirers with unreasonable obstacles. Enquirers are required to persist for information. Then enquirers are sanctioned for persisting in a kind of http://en.wikipedia.org/wiki/Catch-22 catch 22.

Note the Massachusetts attorney general accepts appeals regarding sunshine open meeting violations including minutes of public meetings. Unapproved unaccepted public meeting minutes and other documents or drafts used or distributed to participants at public meetings are public records immediately.