Saturday, December 31, 2005

Is the Herald Racist?

I often read Kevin Rothstein's blog on the Herald Website, and for some reason it occurred to me to look at the makeup of the Herald's bloggers today.

22 white, 0 Minorities

But, it is the City Newspaper, and the city is only 50 percent minority. It may have been triggered by my dinner last night at Brasserie Flo (or Jo, I'm never sure) where the clientele was 99 percent white (one couple had an hispanic kid with them, and my hispanic wife.

I can't understand why anyone would get the impression that our city is segregated.

Good to see the Mayor reappointed the same 2 people to the school committee, why do they bother asking for applications?

Thursday, December 22, 2005

Crime in the Hood vs. Lack of Police : Live, while it happens

I'm still in shock over this so I'll try to be objective.

To make a long story short, a kid from the neighborhood stole a check from me, then wrote it out to himself for $3500. He went to the local check casher where he had to give a copy of his license, with his social security number and date of birth and have a photo taken. Not the brightest of kids.

A woman who works there alerts someone in my company and I come by to get the information from her then check my bank account online and get a copy of the check and see that sure enough, that check had been stolen from my checkbook.

Armed with a name, address, phone number, and ID I called 911. They took my name and number, took the information, and said someone would call back within an hour. I told them I needed to speak to a detective or officer. I said "will it really be an hour, or should I go to the station." She said not to goto the station. A bit over 2 hours later, a clerk called back and I again explained what was going on.

Except by now, I had already called some of my contacts in the south end, especially through the South End Youth Baseball. We were able to track the kid down, and get a partial confession from him (he insists he did it on his own, although his story is internally inconsistent). I had found out he already has a police record, and is a senior at East Boston High School.

So, now the clerk calls me and I explain the story and she says I needed to talk to an officer or detective. (Exactly what I told them 2.5 hours earlier!) I finally get through to a detective after 3 wrong diversions, who says he is really busy, they've got something going on tonight and that he is off over the weekend, so we set up a time to talk on Monday. I hope to see some sort of Big Bust in the papers tomorrow.

Nice to know that when $3500 bucks gets stolen from you and you do all the detective work and track the guy down, get a confession, and can have him meet you somewhere to have him arrested that the Boston Police Department can get on it within 4 days. I wonder who you have to be to get more immediate service?

As I've been writing this, I looked at the evidence further and realized there is a third person involved in this as well.

Another disturbing aspect of this story is that when I was speaking to the clerk who called me back after the 911 call, I asked her why the call took so long. I had promised a call within an hour and it took over two hours. She told me, "oh, well we just tell everyone that they will get a call back within an hour. We just return calls when we can, usually it is within an hour but often it takes longer. That one hour thing is just something we tell the public"

So, if anyone would like to see someone get arrested (and hopefully some money recoverd) I'm trying to set it up for Monday afternoon, maybe around 5:00 pm. Although he called me tonight and already changed his story to saying he only had $500 of the money left. Two hours ago he said he had $1000. His mother and aunt have already left messages for me.

Not really sure what to do. But, so far there is no remorse in him, it sounds like he just wants to get out of going to jail. He is a kid that grew up in the south end baseball league, and we hate to see one of "our" kids go bad. Still, he is perfectly young enough to straighten. What is most distressing is that he won't snitch on his friends, maybe we can try and use this as a test case of showing leniency for being honest.

I'm tired and rambling, and not really feeling in the xmas spirit. But, I hope you enjoy yours.

Wednesday, December 21, 2005

Strike two versus the council

The court today rejected the city council's motion for reconsideration.

The fine legal team full of lawyers at City Hall has now lost two of their arguments for not
complying with what to a layman like me reads very simply: all meetings are to be open to the public, and if someone files suit, the defendants are supposed to appear in court in 10 days to explain their actions.

Well, so far, as we've been lectured by city council counsel sweeney about how this is as clear as "high school civics" he has had his motion to dismiss and his motion for reconsideration both returned to him. Thanks for spending the taxpayer's money so wisely!

Monday, December 19, 2005

Code of Silence

Dear Mr. Walker:
Excellent article. But, I would say there is another aspect of this which has been partially alluded to in the press. Kids, although they may not be the most educated in the world, still understand hypocrisy. And they see and are aware of the world around them.

We have a president and an administration that values its code of silence and wants to prosecute anyone who leaks information. We have the blue wall of silence which protects police officers from any outside investigation. We have our own Boston City Council holding closed door secret meetings to discuss how the city is divided up, and fighting tooth and nail to keep from having to tell the truth about what they discuss in those meetings.

As one who lived in Charlestown in the 80's and 90's, you are right on the mark. But widen your scope about who else does not come forward to talk. It is just extremely unfortunate that when it trickles down to dorchester, mattapan and roxbury, it ends up costing lives.
Kevin McCrea

Sunday, December 18, 2005

Odd rape rumor & holiday invite!

I heard that a family member of one of the city councilor candidates was charged with rape
on or about the election day, but somehow the story got buried. My source is someone who I have no reason to doubt (and probably doesn't even know I have a blog).
It is an odd story if true because there are certainly news sources in this city who love this kind of stuff (see the Diane Wilkerson family saga in the news print). If false, who would start such a weird rumor.

For any diehard McCrea fans out there, my beautiful wife and I are having a holiday party this friday, and if you'd like to bring over an ornament for the tree and enjoy some holiday spirit, send me an email ( and see if I can put you on the guestlist!

Wednesday, December 14, 2005

Peter's Park Planning

I was at a community meeting tonight at the Cathedral. Peter's Park is one of the parks I coach baseball at in the South End. We have been promised a remodel for years, and we finally have $600,000 earmarked for it.

The good news is that they seem to have retained all the elements that people want. The bad news is that they say they are over budget with their design.

And they won't tell us how overbudget they are. But, they ask people to work out in breakout groups their thoughts. A pretty fruitless conversation. Why can't these people be honest with us and tell us what they are over budget by? Can't the public be trusted with the dangerous information of how much it costs to move a tennis court by 50 feet? Or how much it costs to put up a fence around a kiddie playground?

God knows you might be able to bring down the government with that kind of information.

Here's an idea I use out here in the business world. I have the architects design something that can be built with the money we have allocated for the project. And I don't waste further money by having architects continue to do revisions without any of them being within the budget.

And we wonder why property taxes are going up by 9.2 percent this year. I campaigned telling people they were going up 9 to 10 percent, amazing what quantitative analysis will do.

Back from New Orleans....

I followed the "stop snitchin" ridiculous from New Orleans with a sad smile. Nothing like going after first amendment rights in order to stop terrorism, I mean gun violence. Sounds like George Bush.
Saying that, whenever I saw kids with stop snitchin shirts I stop and ask them why they are wearing them, and what a bad message it sends. However, I'll fight for their right to wear them.
I thought about putting out a "START snitchin" shirt, and giving a shirt to the mayor and the 13 councilors, telling them to show an example and come forward and answer the charges in the open meeting lawsuit. They can be beacons of truth and honesty in that jungle hemmed in by walls of silence. Not holding my breath.

Word on the street is that Flaherty will have a difficult time retaining his majority for the city council presidency.

I asked a state rep about the columbus center money from the state and city. He said he talked to the mayor about it, and the mayor asked why the legislature is giving money to the Red Sox in the Fenway, the mayor isn't really behind that.
I asked the Rep. if it is just who you know and he said yes, it is just relationships. The Mayor likes the guys doing the Columbus Center more than the Red Sox people.

Why did the BRA give the Columbus Center people the old buyout number of $52,000 in stead of the new buyout number of $92,000 when they haven't built anything?
Now they want $50 million in public subsidy? Why can't I get 10 percent public subsidy when I build affordable housing? And they are building less percentage wise than most. Why should we subsidize high end housing? Why should million dollar condos pay less in taxes percentage wise than a 3 family house in dorchester?

Word is that Flaherty's brother is looking to run for Jimmy Kelly's potentially vacated seat. Could be a big battle between the Flynn camp and the Flaherty camp.

Went to a house party for Deval Patrick in the South End over the weekend. He is very intelligent, speaks well, but hardly any specifics on what he would do. Everything he is for has a caveat. He is willing to blame Romney for the poor direction the state is going, and most other things. He indicated they have raised more money than Reilly over the last 5 months, and many more donors. I'm hoping that a good race will bring out specifics on how to address the issues of housing, health care, etc. that the state is facing.

Thursday, December 01, 2005

What me worry?

We filed a motion to amend our complaint, and all we amended were our possible remedies (which are open to the judge to decide). Since they have all along protested vigorously their innocence, why are they so worried about what will happen if they lose? Since they know they are innocent (ha, ha) why bother wasting their valuable time?
My favorite part is how they say that we are being two faced by asking repeatedly for a trial in short order, but now are amending our complaint. We are amending our complaint as we learn new things. We are ready for a trial anytime, anywhere, anyplace. It is defendants, Flaherty, and others like Menino and the BRA etc., who will do anything and everything they can to delay the trial or get it thrown out on a legal hair splitting







Now come the Defendants, the Boston City Council and Michael F. Flaherty, in the above-captioned action and hereby oppose the plaintiffs’ motion to file second amended complaint. The plaintiffs seek to amend the complaint in five significant, and wholly inappropriate ways:
1. The plaintiffs seek to include a request to hold the Boston City Council in contempt and impose sanctions for violation of a consent decree entered into between the City Council and the Attorney General in February, 1988;
2. The plaintiffs seek to have this Court impose upon the City Council a mandatory oath requiring councilors to profess their adherence to the Open Meeting Law at the start of each term;
3. The plaintiffs seek a requirement that votes taken by the Boston City Council be posted in various ways and passed at a second vote prior to becoming final;
4. The plaintiffs seek to have this Court fine and strip from office City Councilors remaining on the Council from the time of the 1988 consent decree; and,
5. The plaintiffs ask this Court to impose sanctions upon defendants’ lead counsel in this case.
All of the amendments sought by the plaintiffs are improper. The relief sought by the plaintiffs would constitute an illegal de-facto re-writing of the Boston City Charter, insofar as the requiring of an oath, or amendment to the City Council’s voting procedures. The City Council, under the City Charter, is the judge of its own members. The plaintiffs also seek to have this Court now consider stripping sitting Boston City Councilors from their duly-held and lawful office. To the extent the plaintiffs seek to impose sanctions on the defendants’ counsel, those requests are improper in terms of scope and timing, and are in any event entirely devoid of merit.
For these reasons and those discussed below, the defendants respectfully submit that this Honorable Court should deny the plaintiffs’ motion at this late stage of the proceedings.
This litigation concerns the plaintiffs’ allegations that the Boston City Council and its President violated the Massachusetts Open Meeting Law by holding closed-door sessions at various points during 2003, 2004, and 2005. On or about May 6, 2005, the pro se plaintiffs filed their original complaint in this Superior Court action. On or about May 16, 2005, the plaintiffs filed their amended complaint. The plaintiffs sought to invalidate a December 15, 2004 vote of the Boston City Council to extend various Urban Renewal plans in the City of Boston. The plaintiffs also sought an order compelling the City Council to comply with the Open Meeting Law at future meetings. The defendants moved to dismiss. On or about October 18, 2005, Justice Kottmyer of this Court issued her Memorandum of Decision and Order on that motion, allowing it to the extent of dismissing the plaintiffs’ request to invalidate the December 15, 2004 vote on timeliness grounds, but denying the motion in all other respects. The defendants moved for reconsideration of that motion insofar as the denial is concerned. That motion is pending. On or about October 31, 2005, the defendants filed their Answer to the Amended Complaint. On November 21, 2005, the defendants served, pursuant to Superior Court Rule 9A, their motion for summary judgment. On that same day, the plaintiffs served the defendants with their Motion to File Second Amended Complaint. In that complaint, the plaintiffs now seek various sanctions relating to the above-referenced consent decree, and other wide-ranging sanctions and alterations to the Boston City Charter.
A party wishing to amend a complaint by adding an additional count after the filing of a responsive pleading must seek permission of the court. Rule 15 of the Mass. Rules of Civil Procedure. Such a motion seeking leave to amend is directed to the discretion of the trial judge. See Forman v. Davis, 371 U.S. 178 (1962). While it is has been ruled that such leave to amend should be granted liberally, DiVenuti v. Reardon, 37 Mass.App.Ct. 73, 77 (1994), allowance of a motion to amend is not automatic. Terrio v. McDonough, 16 Mass.App.Ct. 163, 167 (1983). Numerous grounds exist which might warrant the denial of a motion to amend, and these include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies in a pleading by prior amendment, undue prejudice, and futility of amendment. Manfrates v. Lawrence Plaza Ltd Partnership, 4l Mass.App.Ct. 409, 413 (1996). Denials based on undue delay are generally coupled with consideration of other factors such as prejudice to the opposing party. Sharon v. Newton, 437 Mass. 99, 102 (2002).
In this case, the plaintiffs’ Motion to Amend is the result of undue delay, which would result in considerable undue prejudice, and should be denied for this reason if no other. Moreover, the proposed amendments would in any event prove futile, and would not survive a motion to dismiss, as the relief they seek to request in their amended complaint would be wholly improper and in some cases impossible as a matter of law. Finally, the defendants leave it for this Court to determine whether the plaintiffs bring their motion in bad faith. Particularly, the defendants would respectfully ask this Court to note that the plaintiffs served this motion, without notice of any kind, after demanding a trial date, and served it the same day the City served a dispositive motion.

1. The Plaintiffs’ request is the result of undue delay.
As noted above, the denial of a motion to amend based on undue delay is generally coupled with consideration of other factors such as prejudice to the opposing party. Sharon v. Newton, 437 Mass. 99, 102 (2002). Cf. Sullivan v. Iantosca, 409 Mass. 796, 800 (1991) (no prejudice where trial not imminent and discovery was far from complete).
In Sharon v. Newton, the defendant City sought to amend its answer to add an affirmative defense, a move the plaintiff opposed on grounds of undue prejudice. The trial judge allowed the amendment, and the Supreme Judicial Court affirmed the judge’s exercise of discretion because the proposed amendment “did not raise a new issue on the eve of trial and could not be considered futile or irrelevant. . . .” The same clearly cannot be said here. The plaintiffs have repeatedly asked this Court to accelerate the proceedings, and on numerous occasions have criticized what they perceive to be delays caused by the defendants. The plaintiffs gave no indication of their intent to seek amendment prior to serving the motion in open court, on the same day the defendants served a dispositive motion. To allow amendment now, with a dispositive motion pending, after the plaintiffs have repeatedly insisted that this matter be resolved in a timely fashion, would unduly prejudice the defendants.

2. The proposed amendments would be futile.
It is proper to deny a motion to amend where the amendment would be futile and would not survive a motion to dismiss. Mathis v. Massachusetts Elec. Co., 409 Mass. at 265; Mancuso v. Kinchla, 60 Mass.App.Ct. 558, 572 (2004). Cf. Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 314 (1986)(motion to amend properly denied where proposed amendment would not cure defect in complaint).
Here, the plaintiffs propose to amend their complaint in significant and wide-ranging respects. None of the claims they seek to address in the amendments would survive a defendants’ motion to dismiss.
First, the plaintiffs seek to enforce a consent decree entered into between the City Council and the Attorney General in 1988.[1] The plaintiffs do not have standing to enforce this consent decree. The Boston City Council and the Massachusetts Attorney General entered into this consent decree in February, 1988, at the conclusion of litigation centering on alleged violations of the Open Meeting Law. None of the plaintiffs in this case were parties to the 1988 action, and the plaintiffs here have no right to enforce that decree. It is a settled principle that a consent judgment, such as the one entered in the 1987 litigation, conclusively determines the rights of the parties as to all matters within its scope. See Fishman v. Alberts, 321 Mass. 280, 281 (1947)("The great weight of authority supports the principle that [a consent judgment] is as binding and conclusive upon the parties as if it had been entered after a trial and a determination of all the issues"); Levy v. Crawford, 33 Mass.App.Ct. 932, 933 (1992)("As a general proposition, an agreement for judgment serves as a waiver of all matters within the scope of that judgment"); Thibbitts v. Crowley, 405 Mass. 222, 227 (1989) (burden on party to modify consent judgment entered against it more formidable than had party litigated and lost). In addition, an agreement for judgment is a separate and valid contract whereby the parties make a "free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment." Thibbitts v. Crowley, supra, quoting United States Steel Corp. v. Fraternal Ass'n of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir.1979). Therefore, the 1988 Consent Decree is a contract between the Attorney General and the Boston City Council. It is a similarly well-established principle that a contract creates no rights in a third-party unless that party is identified in the contract. The Supreme Judicial Court has recognized that, "when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement." Rae v. Air-Speed, Inc., 386 Mass. 187, 195 (1982), quoting Brewer v. Dyer, 7 Cush. 337, 340 (1851). In order to recover as a third-party beneficiary, the plaintiffs must show that they are intended beneficiaries of the contract between the Boston City Council and the Attorney General. See Rae v. Air-Speed, Inc., 386 Mass. at 195. A party is an intended beneficiary where "the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance." Id. at 194, quoting Restatement (Second) of Contracts § 302(1)(b) (1981). The plaintiffs here are not identified in the Consent Decree, and have no rights to enforce it. Their proposed amendment would not survive a motion to dismiss and should therefore not be allowed.
Second, the plaintiffs seek to impose a host of new requirements concerning the qualifications and procedures of the Boston City Council. Under the plaintiffs’ proposed relief, City Councillors, upon swearing in at the start of each annual session, would be required to subscribe an oath pledging adherence to the Open Meeting Law. Next, the plaintiffs seek to have this court modify the process by which a vote of the Boston City Council would become final. The plaintiffs also seek to have this Court fine and strip from office any City Councilor remaining from the time of the 1988 Consent Decree. These requirements would plainly impose restrictions and limitations on the members of the City Council without foundation in the Boston City Charter and would therefore constitute an improper and de facto amendment of the Boston City Charter. The plaintiffs would involve this Court in the realm of matters intimate to the City Council and committed exclusively to the City Council by statute. All of the requests for relief proposed by the plaintiffs’ lie squarely outside this Court’s jurisdiction and are without basis in either statute or decisional law.
The Boston City Charter sets forth the requirements that must be fulfilled by any City Councillor.[2] Section 11A of the Boston City Charter specifies that, “[e]very person elected. . . city councilor. . . shall, before entering upon the duties of his office, take, and subscribe. . . the oath of allegiance and oath of office prescribed in the constitution of this commonwealth and an oath to support the constitution of the United States.” Section 17 of the Boston City Charter commands that, “[t]he City Council shall be the judge of the election and qualification of its members. . . .” Section 54 of the Boston City Charter also instructs that, “[a]ny person who is a registered voter of the city duly qualified to vote for a candidate for an elective municipal office therein may be a candidate for nomination to such office. . . .” Thus, all that is required in order to be a City Councillor is that the candidate be a registered voter and be willing to take the oath specified in the City Charter. By imposing an oath requirement, this Court would be improperly modifying the statutory requirements that each City Councillor must meet to hold office. Where a City Charter includes such language, specifying that the body in question is to be the judge of the election and qualification of its members, the court is without jurisdiction to impose its own qualifications on that body. Peabody v. School Committee of Boston, 115 Mass. 383, 384 (1874). Indeed, this Court is without jurisdiction to consider the merits of any case challenging the qualifications of any individual to sit as a City Councillor, in light of the language in the City Charter. Dinan v. Swig, 223 Mass. 516, 517-518 (1916). Moreover, members of the Boston City Council are already subject to the Open Meeting Law. An oath to observe that law would not alter in any respect the obligations of Boston City Councillors to observe that law.
Finally, the plaintiffs seek to impose sanctions on the defendants’ lead counsel. Such a request is not a proper subject of amendment. The plaintiffs seek to sanction Attorney Sweeney for what they characterize as “knowingly pursuing a course of action that will delay justice and waste the limited resources of the Court in resolving these violations.” It is not clear from the language in the plaintiff’s request whether the plaintiffs seek to impose sanctions on Attorney Sweeney under Rule 11 or whether they seek to make him a defendant in the case. In either case, the plaintiffs’ motion should be denied. The plaintiffs base their request for sanctions on the fact that Attorney Sweeney represented the Boston City Council in the 1988 action initiated by the Attorney General. They do not allege any wrongdoing in that action, but claim instead that Attorney Sweeney’s representation of his client in the matter translates into an affirmative obligation to manage the affairs of the Boston City Council and ensure that they do not violate the Open Meeting Law.
The plaintiffs offer no examples of the delay and waste they complain of, leaving the defendants little recourse in defending their actions. As to the 1988 Consent Decree, the plaintiffs have no right, as described above, to enforce that decree or seek sanctions for any failure to observe it. Moreover, Attorney Sweeney cannot be held responsible, under any circumstances, for any client’s observance or non-observance of a consent decree. In sum, their request simply lacks foundation in either the Massachusetts Rules of Civil Procedure or any case law. The plaintiffs’ motion to amend should be denied to the extent it seeks to sanction defendants’ counsel or make him a defendant in this action, particularly at this late stage of the litigation.

3. The proposed amendments are sought in bad faith.
If this Court determines that the plaintiffs seek their amendments in bad faith, it may deny the plaintiffs’ motion. A determination of bad faith can be made upon consideration of “the totality of the circumstances, the relevant public policies, and the equities” of the matter. U.S. Ex. Rel. LaValley v. First National Bank of Boston, 1994 WL 601874 (D. Mass., Oct. 13, 1994). The defendants submit that a review of the relevant circumstances would permit this Court to conclude that the plaintiffs have acted in bad faith by bringing this motion. The plaintiffs demanded a trial date in this matter and were granted one. The plaintiffs gave no indication that they would seek to amend their complaint until serving the defendants with this motion, on the same date the defendants served their motion for summary judgment. Such tactics suggest bad faith, and the defendants respectfully request that this Court engage in a searching analysis of the relevant circumstances in determining whether the plaintiffs have brought this motion in bad faith.
For the reasons discussed above, the defendants Boston City Council and Michael F. Flaherty respectfully request that this Honorable Court DENY the plaintiffs’ motion to file a second amended complaint.


I hereby certify that on this day a true copy of the above document was served upon each party appearing pro se by U.S. mail, first class, postage paid.

Date Justin F. Kollar
Respectfully submitted,
Defendants Boston cITY cOUNCIL
and Michael F. Flaherty, as City
Council President,

By their attorney,
Merita A. Hopkins
Corporation Counsel

Mark Sweeney, BBO# 490160
First Assistant Corporation Counsel

Justin F. Kollar, BBO# 661086
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
(617) 635-4097

[1] That action was captioned Shannon v. Boston City Council, Docket no. SUCV1987-05397.
[2] "The Boston City Charter is a patchwork of special laws enacted over the years by the Legislature." Edwards v. City of Boston, 408 Mass. 643, 649 (1990). "The scheme or framework of government is to be ascertained from all the provisions of the charter." City Council of Boston v. Mayor of Boston, 383 Mass. 716, 719 (1981), quoting Fiske v. Worcester, 219 Mass. 428, 429 (1914).