Working on Joint Pre-Trial with Council's Counsel...

Spent 2.5 hours with atty mark sweeney and his assistant justin along with my co-plaintiff on wed to try and hash out a joint pre-trial memorandum. Of course when they sent along the typed up copy of what we had agreed to they happened to leave out the part about them having more than a quorom at a meeting (a clear violation of the open meeting law, as I read it...). I'm sure just an innocent oversight.

I'm back to New Orleans tomorrow, court is 3 pm room 306 on Monday.


If you want to score along at home here is what we have so far....

Suffolk, SS. SUPERIOR COURT CIVIL DOCKET No. 05-1798-B



KEVIN McCREA, SHIRLEY KRESSEL, and KATHLEEN DEVINE,
Plaintiffs,

v.

MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL,
Defendants.



JOINT PRETRIAL MEMORANDUM

I. AGREED UPON ISSUES OF FACT

Plaintiff Kevin McCrea is a registered voter in the City of Boston.

Plaintiff Shirley Kressel is a registered voter in the City of Boston.

Plaintiff Kathleen Devine is a registered voter in the City of Boston.

Boston City Council is a “governmental body” within the City of Boston as defined by G.L. c. 39 § 23B.

The Boston Redevelopment Authority (“BRA”) is an “operating agency” as defined by G.L. c. 121B, § 1.

The BRA is a “redevelopment authority” as defined by G.L. c. 121B, § 1.

Defendant Michael F. Flaherty is a City Councilor and is the President of the Boston City Council.

The duties of the President of the Boston City Council are defined by Rule 3 of the Rules of the Boston City Council, a true copy of which is attached hereto as Exhibit A.

The Boston City Council regularly holds meetings for the purpose of deciding on or deliberating towards decisions.

The Boston City Council consists of 13 members.

A quorum of the City Council consists of seven Councilors.

On February 5, 2003 Councilor Felix Arroyo, filed an order, docket no. 000294, a true copy of which is attached hereto as Exhibit B.

No hearing was held on the order.

On June 3, 2003, a number of Boston City Councilors met in the office of Michael Flaherty to discuss a Boston Redevelopment Authority request for Council approval of Urban Renewal Plan extensions.

Mark Maloney, the Director of the BRA, attended the June 3, 2003 meeting.

On or about the time of the June 3, 2003 meeting, City Council President Flaherty issued a memorandum. A true copy of the memorandum is attached hereto as Exhibit C.

On June 19, 2003, a number of City Councillors and BRA staff met in the City Council Curley Room.

The June 19, 2003 meeting was attended by Plaintiff Shirley Kressel at her request.

Neither the June 3, 2003 meeting, nor the June 19, 2003 meeting was posted in advance with the City Clerk. No records were made public.

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.”

On September 17, 2003, Councilor Flaherty sent a memorandum to all Councilors regarding regular monthly meetings “relative to urban renewal” with the BRA in the BRA Director's conference room. A true copy of that memorandum is attached hereto as Exhibit D.

On October 6, 2003, City Councilor Felix Arroyo wrote a letter to the Director of the Boston Redevelopment Authority. A true copy of that letter is attached hereto as Exhibit E.

On October 15, 2003, City Councilor Felix Arroyo wrote a letter to the Director of the Boston Redevelopment Authority. A true copy of that letter is attached hereto as Exhibit F.

On March 10, 2004, City Councilor Felix Arroyo wrote a letter to the Director of the Boston Redevelopment Authority and Michael Flaherty. A true copy of that correspondence is attached hereto as Exhibit G.

On August 31, 2004, the BRA issued an email to all Boston City Councilors concerning meetings to be held between members of the Boston City Council and the Boston Redevelopment Authority. A copy of that email is attached hereto as Exhibit H.

A meeting occurred on September 23, 2004.

Another meeting occurred on October 21, 2004.

On October 26, 2004, Boston Mayor Thomas M. Menino sent a transmittal letter and order to the Boston City Council. A true copy of that correspondence is attached hereto as Exhibit I.

Another meeting occurred on November 18, 2004.

Another such meeting occurred on January 13, 2005.

Another such meeting occurred on February 17, 2005.

The above-referenced meetings were closed to the public

The above-referenced meetings were not posted in advance with the City Clerk, nor were records made public.

On December 15, 2004, at a duly-noticed and public hearing, the Boston City Council approved an order relative to Urban Renewal Plan extensions. A true copy of that order is attached hereto as Exhibit J.

A meeting occurred on March 24, 2005.

The meeting, and the fact of the public being barred from attending the meeting, was reported in the press.

The topics discussed at the March 24, 2005 meeting referenced above do not meet any of the exceptions listed in c.39 § 23B.

To date, no minutes or records of the meetings of January 20, 2005 or of March 24, 2005 have been made available to the public.

Meetings scheduled for April 28, 2005, May 26, 2005, and June 23, 2005 were cancelled.

On January 20, 2005, notice was given to each City Councilor regarding a “councilors-only meeting” to discuss a tularemia exposure incident at the laboratories of Boston University. A representative of Boston University was scheduled to meet with the Boston City Council at this meeting. A true copy of that notice is attached hereto as Exhibit K.

The meeting held on January 20, 2005, between the Boston City Council and representatives of Boston University was not posted with the City Clerk, nor were records made public or kept.

Plaintiff Devine filed a written complaint with the Suffolk County District Attorney’s office regarding the January 20, 2005 meeting. A true copy of that complaint is attached hereto as Exhibit L.

On or about March 21, 2005, Assistant District Attorney Donna Pantalano wrote a letter to Michael Flaherty. A true copy of that correspondence is attached as Exhibit M.







II. CONTESTED ISSUES OF FACT

A. Plaintiffs.

B. Defendants.

1. Five city councilors attended the January 20, 2005 meeting.
2. Councilor Arroyo’s order, referred to in paragraph 12 of the statement of agreed facts, was duly referred by the Council President in accordance with the Rules of the Boston City Council.

3. The Council President Flaherty acted in accordance with the rules of the Council in referring that order to committee.

III. PLAINTIFFS’ BRIEF STATEMENT OF EXPECTED EVIDENCE

1. That the meetings cited above convened the entire City Council body, rendering immaterial the issue of quorum (the number of Councilors actually responding to the invitation, or the number of Councilors in the room at any one time);
2. That the City Councilors deliberately managed their meeting attendance to keep fewer than seven members in the room at any one time, knowingly repeating the violation of the 1987 Shannon case against the Boston City Council.
3. That the meetings concerned the conduct of public business, including issues over which the City council has supervision, control, jurisdiction or advisory power, either directly by law or indirectly by negotiation or political influence;
4. That the meetings formed a pattern of behavior violating the intent and letter of the Open Meeting Law;
5. Whether other meetings were held by the City Councilors that violated the Open Meeting Law;
6. Whether agreements or commitments of any kind were made at meetings that violated the Open Meeting Law, and may therefore be nullified within 21 days after being made public at this trial;
7. That the Boston City council is in violation of a court order pursuant to the decision in Shannon v. Boston City Council, No. 87-5397 (Suffolk Superior Court, February 28, 1989) wherein the City Council signed a Consent stating: “The Defendants further understand that any violation of this judgment may result in them being adjudged in contempt of court.”


IV. DEFENDANTS’ BRIEF STATEMENT OF EXPECTED EVIDENCE

The defendants expect that the evidence will demonstrate that the City Council and its President did not violate the open meeting law as alleged by the Plaintiffs. Although the City Council President and the BRA Director did invite councilors to a series of discussions on Urban Renewal and other issues, a number of those meetings either were canceled or were not attended by a quorum of councilors. Other meetings concerned issues and subjects outside the jurisdiction of the City Council, or for which no decision was pending at the time of the meeting. The defendants also contend that the evidence will demonstrate that the injunctive relief sought by the plaintiffs is inappropriate because there are no future meetings planned or necessary on any of the issues discussed at the meetings challenged by the plaintiffs.


V. SUGGESTED DESCRIPTION OF THE CASE

This case concerns a claim, brought by three city residents against a City Council and its President. The plaintiffs are seeking a declaration that the defendants violated the Massachusetts Open Meeting Law by conducting a number of meetings without providing public notice or access. The plaintiffs are seeking an injunction requiring the defendants to comply with the Open Meeting Law in the future. The defendants contend that they did not violate the Open Meeting Law, and that the relief they seek is too broad and unnecessary.

VI. STATEMENT OF UNUSUAL LEGAL ISSUES

This action concerns the Massachusetts Open Meeting Law, G.L. c. 39, §§ 23A-B. The Court will be called upon to determine, as a matter of law, whether certain meetings violated that law, and whether the relief sought by the plaintiffs is appropriate under the circumstances. The defendants anticipate that these issues may be appropriately be resolved via summary judgment. The defendants anticipate no unusual evidentiary issues.

VII. WITNESS LIST

1. Witnesses Expected To Be Called By Plaintiffs McCrea, Kressel and Devine:

Testimony from each of the 13 City Councilors, listed below, is required in order to reveal what was discussed at the cited meetings, any other closed meetings held, any decisions and/or actions taken, any agreements made among the Mayor, the BRA and City Council as part of the negotiations over the Council’s approval of the Urban Renewal Extension proposal, and the substance of the negotiations that led to the changes in the BRA Urban Renewal Plan proposal between the Mayor’s Order version filed on October 26, 2004 and the version approved by the City Council on December 15, 2004.

a. Plaintiff Kevin McCrea
b. Plaintiff Shirley Kressel
c. Plaintiff Kathleen Devine
d. Michael F. Flaherty, Jr. City Councilor
e. James M. Kelly, City Councilor
f. Maura A. Hennigan, City Councilor
g. Stephen J. Murphy, City Councilor
h. Felix D. Arroyo, City Councilor
i. Paul J. Scapicchio, City Councilor
j. Maureen E. Feeney, City Councilor
k. Charles C. Yancey, City Councilor
l. Rob Consalvo, City Councilor
m. John M. Tobin, Jr. , City Councilor
n. Chuck Turner, City Councilor
o. Michael P. Ross, City Councilor
p. Jerry Mc Dermott, City Councilor
q. Thomas M. Menino, Mayor of Boston, to reveal what discussions he and Michael Flaherty had with BU representatives that led to their joint invitation to all Councilors to a “Councilors only meeting” to discuss the tularemia exposure accidents at the laboratories of Boston University; and to testify about how his Order to extend the BRA Urban Renewal Plans was “decided on and deliberated toward" in closed-door meetings taking place both in his office and in councilor Flaherty's office, describing his participation and that of the City Councilors.

r. Mark Maloney, Boston Redevelopment Authority Director, to reveal the content of his discussions with the Councilors regarding the Urban Renewal Plan extensions and any agreements or commitments made by the BRA as part of those negotiations; to reveal the content of discussions regarding other zoning, planning, and development issues in meetings occurring after the extension was approved; and to give the reason for the cancellation of several scheduled meetings in Spring 2005.

s. Ellen Harrower, Boston Redevelopment Authority, to testify about notice procedures and agendas for the meetings of the BRA and the City Council.

x. Skinner Donohue, Boston University, to testify about his presentation given to City Council on January 20, 2005, to provide copies of any materials he gave the Council, and to reveal any agreements or commitments requested and/or made.
2. Witnesses Expected To Be Called By Defendants

The defendants expect to call no witnesses, and reserve the right to seek protective orders or object otherwise to all witnesses named by the plaintiffs.

VIII. AGREED UPON EXHIBITS

All exhibits included in the complaint.
All exhibits included in Plaintiffs’ answer to motion to dismiss.
All exhibits included in Defendants’ motion to dismiss.
City’s videotape of December 15, 2004 city council hearing (Plaintiffs’ transcript included in Plaintiffs’ Response to defendants’ Motion to Dismiss)

IX. CONTESTED EXHIBITS

Newspaper article: Jamaica Plain Gazette, June 10, 2005 “Rivera, Tobin trade shots.”
Newspaper article: The Sampan Newspaper, April 2, 2004, “BUMC briefs city councilors on biolab project in unannounced session.”
Newspaper article: Boston Globe, October 5, 2005 “The Race for City Council.”
Newspaper article: Boston Courant, April 20, 2004 “City Council Enters Into Germ Warfare.”
Newspaper article: Boston Courant, May 10, 2004 “Council Awaits Verdict on Proposed Biolab Ban.”
Newspaper article: Boston Globe, February 8, 1999 “Council’s Recesses Flouting Openness; Members Often Huddle, Even With a Quorum.”
Shannon v. Boston City Council, No. 87-5397 (Suffolk Superior Court, February 28, 1989); entire case file.

VIII. EXPERT WITNESSES

1. Expert Witnesses Expected to be Called by Plaintiffs McCrea, Kressel and Devine:

None.

2. Expert Witnesses Expected to be Called by Defendant

None.

IX. ESTIMATED LENGTH OF TRIAL

The plaintiffs contend the trial should take three days.

The defendants contend that the case should be resolved at summary judgment, and that a trial should not be necessary because no material facts are in dispute.








Respectfully submitted, Respectfully submitted
Plaintiffs Kevin McCrea, Shirley Kressel, and Defendants Boston City Council
Kathleen Devine and Michael F. Flaherty, as City
Council President,

Pro Se By their attorney,
Merita A. Hopkins
Corporation Counsel


_______________________________ _______________________________
Kevin McCrea Mark Sweeney, BBO# 490160


_______________________________ _______________________________
Shirley Kressel Justin F. Kollar, BBO# 661086
Assistant Corporation Counsel
City of Boston Law Department
_______________________________ City Hall, Room 615
Kathleen Devine Boston, MA 02201
(617) 635-4030