COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS SUPERIOR COURT C.A. No. 05-1798
)Kevin McCrea, Shirley Kressel, )Kathleen Devine ) Plaintiffs )v. )Michael F. Flaherty and the )Boston City Council ) Defendants ) )
June 6, 2005
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS
The Open Meeting Law (see attachment 1) is emphatic in requiring that all meetings of a governmental body to be open to the public. It is clear that the law creates a presumption that any meeting of the Boston City Council is intended to be open unless such a meeting qualifies under one of the specific exemptions under the statute. Since the requirements of the Open Meeting Law are so important for the open and democratic operation of our government the statute also provides for a unique mechanism for enforcement. The Law specifically provides that as a result of a complaint by three or more registered voters there is to be a hearing: “and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; Furthermore, in the hearing, “the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with” the law. Therefore, it is wrong for the Boston City Council to attempt to avoid its legal obligations to comply with the Open Meeting Law and also to prove its compliance as the statute requires. The Court should therefore deny the Motion to Dismiss this action and immediately order a hearing to address the critical concerns raised by the complainants in this case.
In its Motion, Defendants claim that the Boston City Council can convene any meetings it chooses on any topic of public concern and that so long as there is not actual legislation pending before the City Council on the specific topic there is no obligation for the meetings to be open. There is no authority for such a claim and such a claim is clearly not in accordance with the requirements of the Statute. The Statute specifically states that “all meetings” are to be public. Ch. 39 Section 23A defines a “Meeting” as applying to “any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power” and applies if anything in these categories is “discussed or considered.” Defendants have chosen to minimize the responsibilities and authority of the Boston City Council in order to try to avoid the obligations of the Open Meeting Law. It is insulting to the citizens of the City of Boston that the City Council chooses to see itself as so unnecessary. If that were the case why would there be a need for any of the meetings that are the subject of this complaint?
The Statute, by excluding chance or social meetings from the Open Meeting obligation, confirms that planned and scheduled meetings of a governmental body where all members are invited clearly fall under the Law, as the District Attorney concluded in relation to the January 20, 2005 meeting (amended complaint, Attachment 11). The Statute precludes evasion of even the spirit of the law: “No chance meeting or social meeting shall be used in circumvention of the spirit or requirements of this section to discuss or act upon a matter over which the governmental body has supervision, control, jurisdiction or advisory power. And a ruling in a past Boston City Council case (Shannon, cited below) precluded evasion of the quorum constraints through “revolving door” meetings, i.e., where members meet in turns at a meeting, sending out attendees when new ones arrive, to keep attendance below the quorum.
The Boston City Council is a governmental body as defined by G.L. c.39 Section 23 (the “Open Meeting Law”).
The “Open Meeting Law” applies to every meeting of a governmental body if any public business over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered.
A “quorum” of the Boston City Council is 7 of its 13 members.
A governmental body engages in “deliberation” under the Law, and must comply with the Law’s requirements, whenever a quorum engages in a “verbal exchange”. See Gerstein v. Superintendent Search Screening Committee, 405 Mass 465, 470-471 (1989).
In Shannon v. Boston City Council, No. 87-5397 (Suffolk Superior Court, February 28, 1989) , it was held that “revolving door” meetings, in which a quorum of members participates in a serial fashion, are meetings under the Open Meeting Law and must comply with all the Law’s requirements.
For each city and town, a notice of every meeting of any governmental body is to be filed with the clerk of the city or town, and the notice or a copy of the notice must be publicly posted in the office of the clerk or on the principal official bulletin board of the city or town at least forty-eight hours (including Saturdays, but not Sundays or legal holidays) before the meeting.
The “Open Meeting Law”, as well as Public Records Law, G.L. c. 66, requires every governmental body to maintain accurate minutes of all its meetings. At a minimum, minutes must set forth the date, time, and place of the meeting, the identity of the members present or absent and all “action taken.”
The Attorney General of the Commonwealth of Massachusetts has interpreted the term “action taken” to include not only votes and other formal decisions made at a meeting, but also discussion or consideration of issues for which no vote or final determination is made. (Emphasis added). See New England Box co. v. C&R Construction Co. 313 Mass.696, 713 (1943).
The “Open Meeting Law” is clear that all meetings of a governmental body are to be open to the public and any person shall be permitted to attend any such meeting unless the governmental body (1) validly decides to hold an executive session for one of the nine purposes outlined in the Law and (2) follows the prescribed procedures for holding such an executive session.
The District Attorney is vested with the responsibility of enforcing the Law at the local level.
Three or more registered voters may seek judicial remedies for proven allegations of violation of the Open Meeting Law in the form of injunctive, declaratory or other appropriate relief.
Such relief may include and order invalidating or rescinding past actions by a governmental body, orders requiring public records to be maintained and released to the public and a civil fine of not more than one thousand dollars for each meeting held in violation of the Law. Other remedies may be available as well; the Law states that its remedial provisions are not exclusive. See G.L. c. 39, ss 23B; c 66 SS17C. See Bartell v. Wellesley Housing Authority, 28 Mass App Ct. 306, 309-312 (1990).
ARGUMENT IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS
1. Plaintiffs Have Adequately Stated A Claim For Which Relief Can Be Granted Under G.L. C.39
A. Plaintiffs’ Claim Regarding Meeting on Boston University Laborator
The Defendants assert that only meetings regarding pending legislative measures that are within the City Council's jurisdiction are subject to the Open Meeting Law since those are the only matters upon which the City Council may deliberate or make decisions. To the contrary, it is clear from the plain language of the statute, that:
“Section 23B. All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section.” “Meeting” is defined as any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered.
In order to make a claim that the Boston City Council has violated the Commonwealth of Massachusetts Open Meeting Law, the Plaintiffs need allege only that the Boston City Council is a governmental body; that a quorum of that body is 7 of the 13 members; that the Boston City Council met on January 20, 2005 at a meeting which was not posted with the Office of the City Clerk; that the public was barred from attendance at the January 20, 2005 meeting and that no minutes of that meeting have been published as required by the Law; that even if a quorum were not present at all times, that “revolving door “ meetings in which a quorum participates in a serial fashion are subject to the Open Meeting Law; and that even if no vote(s) were taken any discussion or consideration of issues would require the production of minutes. (Because the provisions of the Open Meeting Law were violated, the public does not know whether there was a quorum, who attended, what evidence or information was presented, what discussion and deliberation took place, and what actions, if any, were taken on this matter of city-wide concern.)
The Plaintiffs have adequately pleaded all of these elements.
Furthermore, despite the defendant's claim, the Boston City Council has jurisdiction over the Boston Public Health Commission and the so-called “Tularemia Briefing” is a meeting for purposes of the Open Meeting Law. .
The Boston City Council, through its Health & Human Services Committee, its Ways and Means Committee (budgetary control) and through the Council itself, has oversight of the Boston Public Health Commission.
In support of this, the Plaintiffs submit excerpts from the text of the recent prospectus for The City of Boston General Obligation Bonds, 2005 Series A, in the amount of $127,775,000, which states in part: “…The City Council enacts ordinances and adopts orders. The City Council may reject or reduce a budget submitted to it by the Mayor. “
This obligation of oversight of the Boston Public Health Commission is further confirmed in the opinion of Palmer&Dodge, LLP, Bond Counsel in the same prospectus: “The Boston Public Health Commission must submit a revenue and expenditure budget for public health services to the Mayor by the second Wednesday in March…. If the Mayor accepts the budget, the amount required to fund the revenue deficiency (the “net cost of public health services”) is included in the annual budget submitted to the City Council in April of each year. (Emphasis added). On Page A-36 of the General Obligation Bonds 2005 Series A, it is further stated: “The (Boston Public Health) Commission is also obligated to reimburse the City for debt service paid on all outstanding General Obligation bonds of the City issued for public health purposes, Such bonds were outstanding on June 30, 2004, in the aggregate principal amount of $12.1M. The Commission has required, and can be expected to continue to require, substantial financial support from the City to maintain its public health mission and programs, including the satisfaction of its obligations described above.” (Emphasis added). (see attachment 2)
Thus, since the approval of the Boston Public Health Commission budget falls within the domain of the Boston City Council, and the Boston Public Health Commission is currently dependent upon the City Council for approval of “substantial financial support”, and the dependency is likely to continue into the foreseeable future, therefore the Boston Public Health Commission falls under the jurisdiction and supervision of the Boston City Council.
The Boston City Council also takes the position that it has oversight over the Boston Public Health Commission. The Health & Human Services Committee of the Boston City Council, in its Committee Description posted on the City of Boston website, states in part, “The committee shall have oversight of the Boston Public Health Commission…” (see attachment 3)
KPMG, LLP, the firm which prepares the annual Independent Auditors’ Report, Basic Financial Statements and Required Supplementary Information for the City of Boston, in their June, 2004 audit notes states the following:Note 1c. p.28: “Boston Public Health Commission (PHC) is governed by a seven member board, six of whom are appointed by the Mayor and confirmed by the City Council…” (Emphasis Supplied)Note 4, p.34: “Budgetary Data: “The budgets for all departments included in the general fund of the City, except for the School Department, are prepared under the direction of the Mayor and City Council.”Note 15, p.52: “Public Health System: The PHC receives the majority of its funding from federal and state grants, lease agreements with BMC (Boston Medical Ctr.) and a City appropriation. During fiscal 2004, the City appropriated $58.8M to the PHC…. The City has budgeted $58.9M for PHC for fiscal 2005.” (see attachment 4)
Regarding legislative control, on numerous occasions between May 2003 and March 2005, orders, ordinances and motions were filed by various members of the Boston City Council, asserting legislative control and jurisdiction over the proposed Boston University Biolab, to wit:
On May 20, 2003, Councilors Chuck Turner, Felix D. Arroyo and Maura Hennigan filed Docket # 0792, An Ordinance Regarding The Prohibition Of Research Designated As Biosafety Level 4 (BSL4) (see attachment 5)
May 21, 2003 Docket #0792 was filed by Councilors Turner, Arroyo, Hennigan and Yancey offering the following: An ordinance regarding The Prohibition of Research Designated as BioSafety Level 4 (BSL4). Referred to the Committee on Government Operations. (see attachment 6)
On March 10, 2004 Docket #0402 was filed by Councilors Turner, Arroyo and Hennigan offered the following: An ordinance regarding The Prohibition of Research Designated as BioSafety Level 4 (BSL4).Referred to the Committee on Government Operations. (see attachment 7)
On March 10, 2004, Councilor Kelly offered the following as Docket # 0430 on the City Council Meeting Agenda: “Order that Rule 34 of City Council rules be suspended on March 31, 2004, so that the committee on Planning and Economic Development may hold a hearing on Biolab. Councilor Kelly moved that the words “Planning and Economic Development” be replaced with “Economic and Historic Preservation.” The motion was carried. On motion of Councilor Kelly, the order, as amended, was passed.“ (see attachment 8)
January 26, 2005, Docket #0212 Councilors Hennigan, Arroyo, Yancey, Turner and McDermott filed an Order for a hearing regarding the Boston University Biolaboratory reporting policy re: exposure to potentially lethal bacterium.On motion of Councilor Feeney, the following order was amended. Docket #0212, as amended, was referred to the Committee on Environment and Historic Preservation. (see attachment 9)
February 2, 2005, Docket #0244,” An Ordinance Regarding The Registration And Inspection Of Laboratories In The City Of Boston” was filed by Councilor Stephen J. Murphy (see attachment 10)
Clearly, from these motions; orders and ordinances, the City Council believed and continues to believe, that it has jurisdiction and advisory power over the proposed Boston University Biolab, and held such belief prior to the January 20, 2005 meeting.
Further, at the time of the January 20, 2005 meeting, although there was no Lab-related legislation pending, the Council was fully anticipating a third re-filling of the legislation for an ordinance prohibiting Level 4 Laboratories in Boston, which had had a hearing but not a vote in 2004. Such a refiling was certain once the tularemia outbreak was revealed at BUMC.
Based on the Boston City Councilors orders, motions and ordinances; the statements of Bond Counsel in the prospectus for the City of Boston General Obligation Bonds, 2005 Series A, and the statements of the City’s independent auditors, Plaintiffs assert that the activities of the Boston Public Health Commission are within the Boston City Council’s jurisdiction, oversight and control.
In the Defendants Motion to Dismiss, they state that the Plaintiffs “…make much of Assistant District Attorney Donna J. Patalano’s letter to Council President Flaherty.” It is telling that the Defendants fail to state that Council President Flaherty wrote to Suffolk County District Attorney Daniel Conley on March 25, 2005, requesting “…an immediate review of said findings…” and that, as of May 23, 2005, the District Attorney has not responded to Councilor Flaherty’s request. (see attachment 11)
As of June 6, 2005, the only letter from the Office of the Suffolk District Attorney regarding the January 20, 2005 meeting is the March 21, 2005 letter to Council President Flaherty, which states:“Based on our review…we conclude that the Councillor’s Only meeting did not fall into any of the enumerated exemptions provided pursuant to the Open Meeting Law.”“…This Office recommends that any meeting to which all City Councilors are invited should be posted pursuant to the Open Meeting Law.” (see amended complaint attachment 11)
B. Plaintiffs’ Claim Regarding Meetings on Urban Renewal Plans
The Defendants’ list of “facts as alleged in the plaintiffs’ complaint” misrepresent the statements in the complaint pertaining to the Urban Renewal Plan extension meetings. The Plaintiffs dispute this listing of “FACTS” claiming to be those stated in our complaint, as follows.
In the amended complaint, P10, the Plaintiffs stated simply that a City Council quorum is seven members; additional words about “conducting public business” are those of the Defendants.
The amended complaint, P12, alleged that City Council members participated in a series of “unnoticed meetings” to “discuss a BRA request for Council approval of Urban Renewal Plan extensions,” not in what the Defendants re-label “ informational sessions with the BRA regarding Urban Renewal Plan Extensions.”
The meeting on June 19, which was attended by Plaintiff Kressel, was characterized in the amended complaint, P13, not simply as “a meeting during which the BRA provided information on Urban Renewal Plan extension,” as the Defendants state. Nor is it true (Motion, page 11) that “the Plaintiffs’ complaint admits that the purpose of the June 19, 2003 was for the BRA to provide information to the City Council.” The meeting was clearly described in the amended complaint as an effort by the BRA to sway the Councilors to approve the extension when it was presented in the future. In fact, if the required meeting notes are made public, they will show that the Councilors used the meeting to discuss the issues relevant to their jurisdiction: the need to extend particular plans, and their power over major, but not minor, Plan modifications, and how that distinction is made. The meeting was, as the history of events outlined below show clearly, structured as part of the decision-making process for the proposed extension, voting power over which the Council had just reclaimed.
The amended complaint, P. 14, alleged that “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’.” The Defendants re-write our “fact” to state: “On August 14, 2003, another informational meeting was held with the BRA with only two Councillors in attendance.” Indeed, Defendants provide no proof that only two Councilors were in attendance. No minutes from the meetings have been released.
The Defendants go on to state that “Several such other informational sessions were held in order to promote dialogue on issues of concern to the City Council. Id.” “Id.” refers again to P. 14 of the complaint, which says no such thing; the Plaintiffs are alleging that these meetings were to negotiate and in fact deliberate toward a particular decision which the BRA was forced to accept from the Council, and which the Council wished to trade for additional powers. But even if it were only “to promote dialogue on issues of concern to the City Council,” New England Box (see above) encompassed under the Open Meeting Law “discussion or consideration of issues for which no vote or final determination is made.” Also, Gerstein (see above) ruled that “verbal exchange” qualifies as “deliberation.”
The Defendants state, as a “fact alleged in the Plaintiffs’ complaint,’ that “At no time during any of the above referenced informational sessions did the Councillors deliberate, decide or vote on any matter properly before them that required a quorum.” Obviously, this is not a statement Plaintiffs did or would make, since we are alleging precisely that these meetings in fact constituted a body of deliberation toward the forthcoming extension decision. Further, we do not know whether items were deliberated on or decided on, or voted on because no records of these meetings have been released.
As to the complaint’s Attachment 2 which is cited in the Motion, although the first paragraph reflects President Flaherty’s careful wording in regards to the Open Meeting Law with pointed legal language, he does refer to the June 3 meeting as a “meeting.” In the second paragraph, he states, “Decisions on these issues will be properly debated and decided through council committees, hearings and process.” There was never a committee report produced for this Docket. There was one public hearing on November 22, 2004, on the October 26 Order which, as discussed below bore virtually no resemblance to the Order eventually voted. What President Flaherty meant by “process” is not clear. The last paragraph states: “Director Maloney said it well when he said during our meeting ‘we work best when we work together’ and that is what the Council is looking for from the BRA. Each Councilor has individual ideas about improving process and communications and those will be fully vetted in the coming months. I would encourage all Councillors to actively engage in these important discussions and future deliberations on specific proposals that may result.”
The Defendants make much of the quorum issue. We assert that since all the Councilors were invited, these are “meetings” of the governmental body. When such a body is convened, the various members’ attendance is not known in advance; therefore, public notification must be given when the intention is to convene the body. If at any particular meeting, especially in a series of meetings on a specific issue as in the case of the Urban Renewal meetings, the attendance turned out to be below a seven-councilor quorum, the meetings were no less “meetings” for the same purpose; public notification could not practically have depended on how many members would show up. The operative statements in G.L. c. 39 are the requirement that “all meetings of a governmental body shall be open to the public,” and the definition of “meeting” as “any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision….” The intent of the Open Meeting Law is transparency to assure accountability, to open to public view the discussions of our governmental agencies as they affect our welfare. It must be construed broadly, lest members employ technicalities to evade the spirit of the law. Indeed, the attached transcript by the Plaintiffs of the December 15, 2004 meeting (see attachment 12, video tape available from City Council recording personnel, or Plaintiffs can make video available at Defendants request) reveals that the participating councilors deliberately managed their attendance to evade the Open Meeting Law A full Court hearing is necessary to bring forth further testimony revealing the councilors’ practice of managing their quorum at these meetings.
The Defendants assert that the Open Meeting Law only applied to these City Council meetings (which they also re-label “briefings”) if they concerned pending legislation on which a Council decision was to be made. We dispute that assertion, since the public should be able to assume that every Council meeting concerns issues in which they believe they have, may have, or should have some role. However, in this case, there was pending legislation. The Defendants state that “the City Council’s only authority with respect to urban renewal is its ability to approve Urban Renewal Plan extensions…” In fact, this is not its only authority; it is, or was before this agreement was made, empowered to approve any major modification to a Plan, of which extensions are a type. And it is exactly this power over extensions that is at issue. The purpose of the Council meetings with the BRA was originally to address the BRA’s effort to circumvent, through State legislation, the City Council approval vote the BRA would have needed for the substantial extension it sought of its Urban Renewal Plans. A Mayorally appointed “Urban Renewal Task Force” had begun to meet in November 2002 to draft such legislation. Councilor Felix Arroyo learned of this effort and submitted a request for a City Council hearing; his Order, Docket # 0294, was filed February 5, 2003 (Attachment 1 of amended complaint). His press release explained the purpose of the Order for Hearing (see attachment 13). The Order was assigned to the Economic Development and Planning Committee chaired by Councilor James Kelly. This Order was pending until the end of 2003. All the meetings held in 2003 were held while that Order # 0294 was pending, as Councilor Arroyo pointed out in his October 6 letter to Mark Maloney (amended complaint Attachment 5).
The hearing was not scheduled, although Councilor Arroyo expressed his wish to schedule the hearing both to President Flaherty, in a personal meeting on June 2, 2003, referred to in a letter sent on October 2, 2003 (see attachment 14) and to Committee Chair Kelly, in a letter dated June 13, 2003 (see attachment 15). The letters appear to indicate that Councilor Arroyo was pressing to schedule a public hearing. It is true as the Defendants state that the Order was “Placed on File” on December 17, 2003, after the last City Council meeting of the year (on December 14, 2003); but this action simply files away the unheard Order, which expires with the legislative year.
However, other events occurred before that Order was “Placed on File.” Council President Flaherty wrote a letter dated May 30, 2003 asking BRA Director Mark Maloney for a meeting of Mr. Maloney and BRA staff with the members of the City Council. (see attachment 16) The letter states that the goal of the meeting is to share the Council’s concerns regarding the BRA’s pursuit of a state law extending Urban Renewal Plans without Council involvement. The letter also states that the Council is prepared to act on Orders filed in Council that address this matter to ensure that the Council retains its power over this extension. The letter further requests information on the Urban Renewal Program in preparation for the meeting requested (hence the term “informational session”); but the BRA’s purpose was to influence the council to accept its proposal for extension by presenting such information as would overcome council objections and distrust; and the councilors were looking for information that would serve their negotiations to get something from the BRA, such as additional oversight powers, in trade for approval. This letter shows that in fact, Council legislation was pending when the so-called “informational sessions” were initiated, and that they were initiated precisely to be a forum for consideration, and deliberation, regarding this immediately pending Council legislation as well as on the more distantly pending decision that they were demanding be brought to them, and in fact was filed by the Mayor on October 26, 2004: a vote on the extension of the Urban Renewal Plans, as well as a change in the processing of major and minor modifications. The monthly meetings, held in response to President Flaherty’s letter, began June 3, 2003 and continued up through and past the vote date of December 15, 2005, and they continue to be scheduled.
Although the next legislation, the Mayor’s Order for the Urban Renewal vote, did not formally come to the Council until October of 2004, it is clear that the meetings held during 2004 were continuing the preparation for this decision, which was needed by the BRA and demanded by the Council. And according to the schedule of meetings between the City Council and the BRA (Attachment 8 of amended complaint) at least one such meeting was held on November 18, 2004, while the October 26, 2004 Mayor’s Order was pending, undisputably violating the Open Meeting Law. The transcript of the Council’s December 15, 2004 public meeting, where the vote was taken, indicates that more meetings with the BRA may have been held within the two weeks preceding the meeting, to finalize the negotiation on the terms of the Council’s approval. A Court hearing is necessary for confirmation of those meetings, their participants, and their contents, publication of which are part of the Plaintiffs’ demand for remedy.
The Defendants state that “On December 15, 2004, during a duly noticed open session, the City Council deliberated and passed an Order transmitted to it by Mayor Thomas M. Menino on October 26, 2004, regarding Urban Renewal Plan Extension. Complaint, P18; Exhibits 1 and 2.” Defendants’ Exhibit 1 is the cover letter only for the October 26, 2005 Order, on which the public had a hearing on November 22, 2004; Exhibit 2 is the body of the final Order, introduced and passed on December 15, 2004, unseen by the public at the time of the hearing, and indeed, apparently, from the transcript, unseen by the four Councilors who were not attending the closed meetings. The two documents are presented as “an Order” that the Council received in October and deliberated on and passed in the December meeting. They are not. Therefore, we dispute the authenticity of these attachments as the single document they purport to be. The October Order (see attachment 17) is entirely different from the December 15 Order passed (see attachment 18, also Defendants attachment 2) We conclude that the Defendants presented to the Court two unrelated documents as “an Order” to conceal the process, that is, the deliberations, that occurred between October 26 and December 15, 2004.
In yet another misrepresentation of our “Facts,” the Defendants’ state on page 9: “…the only decision or deliberation that the Boston City Council could make with respect to Urban Renewal Plans, the December 15, 2004 [sic] vote, was completely in compliance with the Open Meeting Law and the plaintiffs do not contend otherwise. Complaint P18.” The complaint P18 merely states that “On December 15, 2004, the City Council approved with 8 votes a BRA proposal for Urban Renewal Plan Extensions.” There is no mention of compliance with the Open Meeting Law. It is true, Plaintiffs had not disputed that the December 15 meeting was an open meeting. But a viewing of the videotape and reading of the transcript of that meeting indicate quite clearly that this was not a deliberative meeting on the text of the legislation. Since there was no open deliberation on the record, there is no explanation as to how the legislation changed from the October 26, 2004 submittal and vote approving the completely different December 15, 2004 legislation. The legislation passed as part of that agreement was entirely different from the October 26 Order discussed at the sole previous public meeting, the November 22, 2004 Council public hearing. Hence, discussions and deliberations had to have occurred in meetings in a non-open forum. So, Plaintiff's do contend that the December 15, 2004 meeting was not in compliance. We agree that the public was not barred from the meeting, but they were not noticed that the item was going to be discussed because it was not on the official agenda, and no version of what was passed had ever been presented to the public or apparently, several of the members of the Boston City Council.
The final version of the Order was not on City Council’s December 15, 2004 agenda. (see attachment 19) There was in fact no public notice that the Order would be discussed that day, the last Council meeting of the year. There was no Committee Report provided to the Councilors the prior afternoon, as is customary for items to be voted on during the meeting, so that the those Councilors who did not participate in the meetings did not have advance information on the content of the revisions. The Order was raised by the Committee Chair, James Kelly, with a “substitution,” which was granted by the President without discussion. As the transcript reveals, when the non-participating Councilors saw the substitute Order, they were unprepared to vote on it as it contained many provisions they had not seen before.
The official City Council minutes of this meeting on the City website are as follows: Docket #1444Councilor Kelly called Docket #1444, order for a hearing regarding promotion of Community Development in the City, from the Committee on Planning and Economic Development. No objection being heard, the matter was before the body. Councilor Kelly moved for a substitution. On motion of Councilor Turner the Council voted to recess at 5:40 pm. The Council was called to order by President Flaherty at 6:40 pm. Councilor Kelly moved that the order be amended by adding the words "alterations of the boundaries of an urban renewal plan through the" in the final Whereas on line four before the word "addition". The motion prevailed. The order, as substituted and amended, was passed.
The minutes do not reveal that Councilor Turner's call for a “recess” was actually a call for a hearing of the Committee of the Whole because he could not understand the new Order and requested clarification of the provisions by the BRA, unable, presumably, to get clarification from the Councilors who worked out the agreement. The minutes do not reveal that a 20-minute hearing was allowed by the President, from 6:20 to 6:40, which was the only opportunity for four Councilors to ask questions on an agreement worked out between the other Councilors and the BRA over the course of about 18 months, between June 3, 2003 and December 15, 2004.
Indeed, the December 15 version of the Order is so different from the October 26 version that it may be argued that City Council Rule 5 was violated. Rule 5, entitled Matters Properly Before Council, states: "No motion or proposition of a subject different from the one under consideration shall be admitted under the color of an amendment.” In view of the radical changes to City Council, as well as State, powers over Urban Renewal made by Councilor Kelly’s “substitution,” which turned a 10-year Plan extension into a surrender of virtually all local oversight over the Urban Renewal Plans in perpetuity, Plaintiffs contend that the extension of Plans effectively became a footnote in an agreement disarming the City Council as an Urban Renewal oversight body. The transcript reveals that the agreement negotiated by the Council regarding the extension of the Urban Renewal Plans not only changed the term of the extension from the October 26 Order’s 2013 to 2015, but also included significant changes in the City Council’s future powers over the Urban Renewal program which had not been mentioned in the October 26 Order and deleted provisions for State oversight that were in the October 26 Order. In addition, the agreement appears, according to the transcript, to include a BRA commitment to provide the Council with a comprehensive detailed descriptions of all the Urban Renewal Plans, including all (over 400) past modifications, as well as future BRA plans for the UR Plan areas; this was to take place in February or March. We do not know if it has taken place in the continuing closed meetings; informal conversations with councilors prior to filing the complaint indicated that the discussions cover various “planning and zoning issues.” In addition, the transcript reveals, the agreement is conditioned on a commitment by the BRA to modify their internal project review processes as governed by Article 80 of the Boston Zoning Code to expedite project approval. In this fashion, the Council actually did wield significant power over zoning, although it does not officially have jurisdiction over city zoning per se. It is possible that the meetings continuing after December 15, 2004 also involve Council influence on zoning, as the BRA is constantly revising the zoning across the city; this is another subject for Court testimony on the case.
The transcript of the meeting provides many quotes, underlined by Plaintiffs, that indicate the deliberative nature of the Council’s meetings with the BRA prior to the vote of December 15, 2004.
After the vote, Councilor Michael Ross wrote a letter to the constituents who had contacted him to express concern (see attachment 20) He states: “…I heard…that there was a need for more of a checks and balance on the BRA. I argued this point repeatedly during the Council’s deliberations with the BRA.”
He and the other Councilors, in their transcribed comments and in the trail of written correspondence Plaintiffs have discovered, convey a clear picture of negotiations about the Urban Renewal Plans during the BRA/Council meetings, negotiations among Councilors and between Councilors and the BRA, to work out the “agreement,” as it is repeated called, that would be substituted for the original Order at the time of the vote. These meetings, and not the public meeting of December 15, 2004, were the deliberative forum for the nine Councilors who participated, and who were thanked by name by Chairman James Kelly at the December 15, 2004 meeting for participating.
On the morning of the December 15, 2004 meeting, Councilors Felix Arroyo, Maura Hennigan and Chuck Turner filed an Resolution that the City Council oppose the extension until community hearings could be held in the affected neighborhoods. (see attachment 21) Councilor Arroyo mentioned it at the meeting, as the transcript shows, noting that it was not in final version. The passage of Docket #1444 made this Resolution moot.
2. The Complaint is timely filed.
The complaint is certainly not untimely filed. The provisions of M.G.L. c. 39, sec. 23B does not provide a time limit for challenging whether a particular meeting or series of meetings was in violation of the Open Meeting Law. The only time limitation referenced in the statute pertains to the scope of an order to invalidate a previous action of a governmental body. Therefore the complaint alleging violation of the Open Meeting Law is clearly not untimely.
In addition, there is no time limit on such complaints when transcripts of the closed meetings have not been made available. The remedy sought, the invalidation of the actions taken from these unlawful meetings, is also timely, because ch. 39 S. 23B states: “Such order may invalidate any action taken at any meeting at which any provision of this section has been violated, provided that such complaint is filed within twenty-one days of the date when such action is made public. In fact, the actions taken at, and pursuant to, those meetings, on both the Laboratory and the Urban Renewal Plans, still have not been made public; the publication of the records of those meetings, with any other commitments and agreements that may still be unknown to the public, are part of the Plaintiffs’ demand for remedy. The twenty-one-day period will actually not start until the records of those meetings are made public.
We seek the invalidation of any agreements or commitments made at the BU Laboratory meeting which may affect the Council’s vote on the now-pending Order, filed January 26, for Prohibition of Level 4 Labs in Boston, just as the council conducted prepared behind closed doors for the 2004 Urban Renewal Plan Order before it was filed. The deliberations and actions that took place at that meeting are still entirely unknown, although the Council has jurisdiction on at least three types of relevant decisions: legislation regulating or prohibiting such laboratories; oversight on appointments and budget appropriations for the Public Health Commission; and City-backed bonding for the BU Medical Center, There is also the jurisdiction over the City land disposition and the South End Urban Renewal Plan boundary-change modification, both of which required Council approval, which the Council may or may not have had the opportunity to exercise. It is known that no hearing has yet taken place on the Order for Prohibition of Level 4 Laboratories in Boston, which was re-filed on January 26, 2005. Without minutes we don't know if the Councilors privately made some agreement already regarding such prohibition. We don't know if any future public hearing will be able to serve as the venue for the proper deliberation to which the public is entitled, or will it be another pro forma vote on predetermined actions based on privately negotiated agreements.
Further, we seek the invalidation of the actions of creating private agreements and commitments by the City Council and the BRA on the Urban Renewal Plans at the closed meetings prior to the December 15 public meeting. The deliberations and the actual decisions appear to have taken place at those closed meetings, and the product of those meetings was introduced at the December 15 public meeting without any deliberation in public view. Those councilors who had not participated were as unfamiliar with the terms of the agreement as the public.
Defendants cite a case ruling (Benevolent & Protective Order of Elks, Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566 (1988), where the violation of the Open Meeting Law had been cured by subsequent council meetings held in compliance with statutory requirements prior to the filing of the complaint. The violations here have not been cured by the December 15, 2004 public meeting. The records of the unlawful meetings have not been made public; the full extent of the agreements and commitments made between the BRA and the City Council is not known; the public, and 30% of their legislative representatives, had no opportunity for meaningful participation. The Defendants cannot claim that all was set right when the final Urban Renewal vote was taken, without public notice on the meeting agenda, without deliberation in public view, on a bill never seen by the public whose chance at a hearing had passed and by the four Councilors who refused to violate the Open Meeting Law.
As demonstrated above, the vote taken on the Urban Renewal Plans at the public meeting on December 15, 2004 was the product, and perhaps not the only product, of privately negotiated agreements at a series of meetings between the Council and the BRA. The content of these agreements has not yet been made public; further, it is uncertain whether the Plaintiffs even know the full number of such meetings. Indeed the point of this lawsuit is for these meetings to be conducted in the open, with public records, so that the public can know what the government is working on.
Moreover, the Council meetings with the BRA still continue; another has been scheduled, according to the BRA Director’s office, which was contacted by Plaintiff McCrea on June 1, 2005. The activities that continue to take place in these meetings are not known to the public. The amended complaint seeks not only remedy for past violations, but cessation of future meetings that violate the Open meeting Law.
3. The Plaintiffs have shown that the City Council was conducting “public business” on “matters over which the City Council has supervision, control, jurisdiction or advisory power.
Plaintiffs contend that the Defendant City Council may not evade its obligations for transparent accountable governance by claiming that it is a weak body with little jurisdiction and so may have private meetings with impunity. The facts have been stated above showing that the Council was acting on matters in which it has some role, with legislation pending or anticipated, or in its responsibilities for budget appropriations, Commission appointments and bonding power. Indeed, Council was, by leveraging its official powers, acting in matters in which it exercised an indirect role, such as BRA zoning implementation. All of these are certainly “public business.”
Councilor Kelly stated in the transcribed December 15, 2004, public meeting that the BRA has made a commitment that they will: “any time there's something meaningful, not only a major modification but even a minor modification, are going to give the council a 30 days notice, at which time the members of the city council, if they wish, can conduct public hearings, they can do whatever they wish to bring attention to what the BRA is proposing to do… and we can act accordingly.” The Defendants attempt to minimize their powers in their Motion, but apparently they feel that their conduct of public hearings on significant matters such as BRA actions, and other ways to “act accordingly,” are an important part of their “public business,” and not only “to legislate.”
Similarly, continuing meetings after the December 15, 2004 vote may be deliberations on planning and zoning issues that affect Councilors’ districts or the whole city. These may or may not result in proposed legislation, but they are certain “public business.” Again, a hearing is necessary to make public the content of these meetings. It is impossible to know whether the topics are the subject of pending, anticipated, desired or potential legislation, or other Council decisions such as financial appropriations. In view of the past pattern of behavior, and by Law the burden of proof is on the Defendant City Councilors to disclose why they are meeting with the BRA every month and how those meetings comply with the open meeting law.
City Council cannot claim that it was not “meeting” when all members were invited to discuss legislative Orders either immediately pending before them or reasonably known to be in process for filing or re-filing, as well as on matters over which it has budgetary power.
4. Defendants do not address all the issues of the Complaint
In the Defendants’ Introduction they state that this action seeks two things. One is to sanction the Boston City Council for a purported violation of the Open Meeting Law on January 20, 2005. Two is to invalidate a December 15, 2004 vote of the Boston City Council to extend Urban Renewal.
These two items are only part of the amended complaint. Please see Amended Complaint, Counts, paragraphs 37-41. In fact to be more specific, only point two of the defendants is specifically mentioned in Plaintiff's Counts.
The defendants only discuss the January 20, 2005 meeting in their introduction. Later, in their Argument section, they discuss the January 20, 2005 meeting and they discuss the alleged violations on June 3, 2003, June 19, 2003, August 14, 2003 and September 23, 2003.
However, they fail to discuss or even mention the Councilor's meetings “Monthly Council Conversations with the BRA Director” which have been held monthly since September 23, 2004. (amended complaint, Attachment 8) Further, these meetings continue; a meeting scheduled for May 26 was allegedly cancelled due to ongoing Council budget hearings, and the next meeting is scheduled for June 23, 2005, according to the BRA Director’s office in response to a June 1 inquiry by Plaintiff McCrea.
This is particularly striking considering that defendants make the claim that “In the case of the Boston City Council, only pending legislative measures that are within the City Council's jurisdiction are subject to the Open Meeting Law since those are the only matters upon which the City Council may deliberate or make decisions.” Plaintiffs disagree with this interpretation, furthermore, there was at least one closed, unnoticed meeting held on November 18, 2004 (see attachment 8, amended complaint) where there was pending legislative measures. Defendant's Motion, page 10, “The Order approved by the City Council on December 15, 2004, was filed with the Council on October 26, 2004.”
Specifically, the Council had at least one closed meeting with the BRA Director while there was a pending legislative measure to extend the powers of the BRA for 10 years (or, as it turned out, in perpetuity)!
Furthermore, as discussed above, Defendants are being disingenuous in their statements and attachments. Their statement that “The Order approved by the City Council on December 15, 2004, was filed with the Council on October 26, 2004.” is not true. The order that was filed on October 26, 2004 differed substantially from the one that was approved on December 15, 2004, and we could find no record of an open meeting where these changes were discussed. This certainly calls to question what was discussed in the closed, unnoticed meeting on November 18, 2004 between the BRA and the City Council. It is disingenuous of Defendants to provide as Exhibit 1 a cover sheet of the October 26, 2004 Order, and as Exhibit 2 the Order that was voted on December 15, 2004, without attaching the Order that went with the Exhibit 1 coversheet. (see attachment 17)
There are other Counts alleged by the Plaintiffs, which are not discussed in detail by the defendants. First, that despite a decision by the District Attorney that “any meeting to which all City Councilors are invited should be posted under the Open Meeting Law, ” Defendants continue to hold such closed meetings. (amended complaint, Attachment 8) Second, the Boston Redevelopment Agency is in the process of changing the zoning code, and continues to have closed meetings with the City Council to discuss these changes. (amended complaint, Attachment 15)
5. Clarification by the Court is needed to provide all the Citizens of Boston proper representation at City Council Meetings
There are 13 City Council members. Four of these members: At Large Councillors Arroyo and Hennigan, and district councillors Turner and Yancey refuse to attend these meetings because they believe the meetings violate the Open Meeting Law. Councillor Arroyo has written letters to the City Council President informing him that he believes these meetings violate the law, or at the very least, the spirit of the Open Meeting Law (see amended complaint attachments 5, 6, 7)
This means that 30 percent of the City Council is being disenfranchised with regard to city business. Clearly, this was never the intent of the Open Meeting Law.
The arguments by plaintiffs and defendants need to be heard so that the Court can make a ruling as to how the Open Meeting Law is to be interpreted, so that all the citizens of Boston can be represented during Boston City Council business. Clearly there is ambiguity in the interpretation of this law by the City Council President and some members of the Council, which is resulting in a curtailment of the democratic process in Boston.
6. If Motion to Dismiss is allowed, Defendants could claim exemption from the Open Meeting Law
The last line of the Defendant's Motion reads as follows: “Therefore, the plaintiffs' request to invalidate the Council's vote, as well as their request for an order requiring the Council to “carry out the provisions of the Open Meeting Law at all future meeting” and all othe requests should be denied.” A literal reading of this line, if the motion is allowed, might be that the City Council does not have to carry out the provisions of the Open Meeting Law. They might argue that they have some special exemption to continue scheduling closed meetings. Clearly, this is not what the Open Meeting Law was designed to do.
II. The Relief Sought by Plaintiffs Is the Relief Provided By G. L. c.39
The relief sought is not “overlybroad,” as Defendants claim.
The relief provided by the statute may include an order invalidating or rescinding past actions by a governmental body, orders requiring public records to be maintained and released to the public and a civil fine of not more than one thousand dollars for each meeting held in violation of the Law. Other remedies may be available as well; the Law states that its remedial provisions are not exclusive.
Plaintiffs, in their original filing, sought relief of an order invalidating a past action as well as other remedies “as the Court finds just and proper.”
Plaintiffs understand that invalidating the December 15, 2004 vote extending the Urban Renewal Plan may adversely affect projects that have begun, or were continuing at the time. Plaintiffs suggest two alternate forms of relief that the Court may find proper. The first is to have a moratorium on any future projects. The second would be to put a time limit of one to two years for the Urban Renewal Plans to be extended. Both of these would be in effect until the Boston City Council had time to discuss the Urban Renewal Plan in open meetings.
The relief sought by the Plaintiffs is therefore the relief provided by the law.
Plaintiffs have stated a claim under G,L c. 39, Section 23A and B, upon which relief can be granted. In order to make a claim that the Boston City Council has violated the Commonwealth of Massachusetts Open Meeting Law, the Plaintiffs need allege only that the Boston City Council is a governmental body; that the Boston City Council held meetings to which the entire body was invited; that the meetings included discussion, consideration, and/or deliberation on any matter over which the Council has supervision, control, jurisdiction or advisory power; that the meetings were not posted with the Office of the City Clerk; and that no minutes of those meetings have been published.
The Plaintiffs have adequately pleaded all of these elements.
This is validated by the District Attorney's letter to the City Council. The District Attorney’s Office has not undertaken any review of its findings to this effect as requested by Council President Michael Flaherty.
The relief sought by the Plaintiffs is within the jurisdiction of G.L. c. 39. The relief sought by Plaintiffs McCrea, Kressel and Devine is the specific relief provided under the law and therefore cannot be characterized or dismissed as being “overly broad”.
The complaint is not untimely filed, as the actions taken at the unlawful meetings has still have not been made public. Further, the meetings are still continuing.
The statute provides for a prompt hearing. By the very nature of a violation of the Open Meeting Law, written arguments are insufficient and court hearings are required to bring forth evidence otherwise unavailable to the Plaintiffs.
The burden of proof is on the Defendant.
The Motion to Dismiss brought by Michael F. Flaherty and the Boston City Council should be denied.
Plaintiffs request a hearing under Rule 9A.
Respectfully SubmittedKevin McCrea218 West Springfield StreetBoston, MA 02118617-267-2453
Kevin McCrea,218 West Springfield Street, Boston, MA 02118
_____________________________________________________Shirley Kressel, 27 Hereford Street, Boston, MA 02116
____________________________________________________ Kathleen Devine, 49 Symphony Road, #33, Boston, MA 02115
Dated: June , 2005