Sunday, December 31, 2006

Thoughts on President Feeney's way to run government...

In honor of Councilor Feeney putting the votes together to become council president, I will post some thoughts on her testimony at the Open Meeting Trial. The most important point is that she gave pay raises to unknown hundreds of employees without knowing how much that would cost the taxpayers.

It would appear that the white councilors again outgunned Team Unity by getting together and playing musical chairs. As I predicted with Joe Heisler a couple weeks ago, Maureen was an acceptable choice to the majority voting block of 9 mostly because she has no (outspoken) Mayoral aspirations.

My thoughts:

Before the Open Meeting Trial is too distant in my memory, I will write down the points I thought were important, interesting, funny or memorable for good or bad.

The first point is that win or lose, I believe that the mere fact that the council had to stand trial to explain their actions is a victory for open, transparent democratic government. As the judge said when he denied their motion for summary judgment, the city council and mayor getting 17 percent raises, amending an ordinance without a single hearing and a 6 minute discussion on the matter certainly makes one wonder what went on. The fact that the court understood that the Open Meeting Law is meant to illuminate the process under which government operates, and provides a strong deterrent to back room deals was shown by the fact that he made them come and explain their actions in open court. Making a politician swear to tell the truth under pains and penalties of perjury is quite a strong deterrent.

First on the stand was Maureen Feeney, the chairwoman of the Government Operations Committee. She testified that she never spoke to anyone about the amendment to raise the pay of hundreds of city managers and the Mayor or City Council. She didn't speak to anyone in the executive branch of government and she certainly didn't talk to any other city councilors about the substance of the ordinance, just to Councilor Murphy and Turner about a scheduling issue. She cancelled the scheduled public hearing on the pay raise issue because Donovan Slack of the Globe called her and asked her if their was a conflict of interest because Larry Dicara was lobbying the Mayor and City Council on behalf of the Forsythe Institute to have the City give the Forsythe land for free at the same time that he was suggesting raises for the Mayor, City Council and doubling the pay of the Zoning Board of Appeals whom Mr. Dicara is in front of on a very frequent basis. After receiving that phone call from Ms. Slack on Thursday evening she waited until Friday morning around 10 am to cancel the meeting. Although she has said in public that she wanted to talk to the state or local ethics board (and drafted a letter to the ethics board for review which she never sent), what she really did was call Corporate Council Sinnott for his opinion. She is not sure when he got back to her with an opinion that it wasn't a problem, but by then the 60 day period that the Government Operations Committee had to do something with the amendment was running out. She testified that she met with T'urner and Murphy sometime the following week but didn't remember when, but she did say that they only talked about scheduling although Turner told her he was against the ordinance. She also says she didn't tell them about the amendments she was going to later make to the document.

Up until this point, in my opinion, no rules had been broken assuming she was telling the truth about not talking to anyone about this ordinance which had been in her committee for 55 days or so. But then Maureen took it upon herself to start changing things around. The submission by the Mayor had collapsed 5 pay categories for City employees down to 3 categories. On the Monday night before the ordinance was due out of her committee to the clerk by noon Tuesday, she decided to change the pay scales for hundreds of City Employees. She couldn't quite remember what made her change the pay scales around, something very vague about wanting to cut some things, although she couldn't remember what those things were. She certainly had no idea how many people were affected by the pay raises, and had no idea how much those pay raises were going to cost the taxpayers of Boston. (Her attorney at one point said 400 to 500 people, at other points 200 to 300 people were mentioned. What was clear throughout the trial was no one knew how many people this affected, nor how much would it cost)

On Tuesday morning while she was driving to the Bay Side Convention center she testified that she called in to her office, dictated the changes to the ordinance over the phone, and her staff took it from there, although her testimony got very confusing and contradictory at this point. Specifically, she at first said she hadn't talked to legislative aid Paul Koch, but later described multiple conversations with him. The long and short of it is that between 9 am and 12 noon, Maureen called in to her office, amended a major ordinance over the phone, her staff distributed the changes and a cover sheet that said something to the affect of "we the committee studied the facts, considered them, and we recommend the following changes to the full council", 4 of the members of her committee (Murphy, Ross, McDermott, Kelly) received these changes, and added their names as "concurring" on the bottom of the cover sheet. All of this happened in 3 hours, and of course the public never had a chance to observe or provide input to this.

When every Councilor is sworn on s/he receives a blue book with the Open Meeting Law guidelines, and they sign a document that they have received this document. The document has an introduction which states that the basic idea of the Open Meeting Law is that the "public's business is done in public"

Maureen started the testifiers down the path that they were going to follow during the trial, that when the members of the committee "concurred" they were only doing so as a courtesy to the chairperson of the committee. She testified that when she wrote "We" multiple times on the cover sheet that she really meant "I". She testified that just because someone "concurs" with a committee report it doesn't necessarily mean that they agree with it, and that it is not to be construed that the committee took action as a group just because they write an introduction that says "We the committee did…." and is signed by a majority of the members at the bottom as concurring.

Saturday, December 30, 2006

Flaherty doesn't miss a trick

Talk of the Neighborhoods has a new blog and poll at

Their first poll is "who will be the city council president?" After the first night the standings were approximately Feeney 10, Flaherty 12, and Tobin 3. The next night the poll had clearly been ballot stuffed and Flaherty had an extra 40 votes or so, so that he far outpaced Feeney and Tobin.

So often, that extra effort pays off in making what seems to be real, become real.

Wednesday, December 27, 2006

Field for City Council at Large starting to EnLarge

John Connolly has announced he is running, Joe Heisler told me that he has heard that Matt O'Malley is running again, Team Unity is supposedly thinking of running more than just Sam and Felix, and today I got an email from a gentleman who helped on my campaign, Eric Georgi.

His email is as follows:

I'm writing you to tell you that I am running for Boston City Council (at large.If you could make a contribution before the new year, I would greatly appreciate it.If you or someone you know of would be interested in an internship, or volunteering, I'd be glad to speak with them about it. Either way, please visit my web site ( and keep me in mind.

Thursday, December 21, 2006

Juntos el mundo!!!

As many of our friends know, and now the City Council and BRA, Clara and I are taking next year off for our honeymoon. She has given notice at the hospital she works at, and we are hoping to leave in January.

We have been busy outfitting our motorcycles, getting shots for all the various diseases around the world, getting carnets and visas, and studying maps.

We are going to start from the base in New Orleans, head south through central America, hopefully make it to Tierra Del Fuego, then back up the east coast of south america before flying off on Lufthansa for summer in Europe, from there who knows!

We wish everyone a happy, healthy christmas and holiday season and if you have visited great places in the world that you would recommend, please drop us a line and let us know about them.

Thursday, December 14, 2006

An Inconvenient Truth-Al Gore and the City Council

I was watching the Al Gore movie an Inconvenient Truth on Sunday night with my wife, when Al quoted Upton Sinclair "It is hard to make a man understand something, when his salary depends on him not understanding it."

My wife said to me, "that sounds like the City Council!" It was very lattice of coincidence.

The Open Meeting Law trial ended today and I guess Maureen Feeney was in the back of the room complaining that I hadn't blogged about the trial. First of all, I appreciate Maureen taking the time to read my blog. Second, although I'm not an attorney as anyone who was in court can attest, there are rules of decorum which I decided to try and follow, one of which is not making any public statements during the trial.

Councilor Kelly insisted on coming to Court today and being called as a witness. We had no intention of calling him, and the Council's attorney Mrs. Stacy didn't want to call him either but Jimmy, always the fighter and defender of the City Council insisted on coming. Jimmy came, spoke clearly and strongly to the court, despite his obvious physical ailments. It was an inspiration to see him work so hard to participate. I felt Jimmy would feel insulted if we didn't question him, and we asked him one relevant question which he answered honestly. His handshake was firm as he left the podium. Agree or disagree with Jimmy on an issue, he will let you know where he stands and there are fewer and fewer like him all the time.

I met with Jimmy years ago when I was a young developer starting out. I called his office about a project in his district and he gave me 1/2 an hour of his time early one morning. We had an honest, frank discussion about the property. He told me that he could support the project as long as we had some union involvement. Very straightforward, businesslike and friendly, nothing like he was portrayed in the press.

The City's lawyer asked me 5 times if I was going to just ask one question as we had agreed. Although I told her numerous times that when I give my word on something, it means something, it wasn't until Jimmy told her "I know Kevin, I trust Kevin" that she finally believed me. It was a poignant moment for me, and I thank Jimmy for saying that. Of course, I held up my end of the bargain.

Although I will blog more about this later, I know Mrs. Feeney would like to read more about herself so I will describe a bit of her testimony.

As has been reported in the Boston Phoenix and the Dorchester Reporter, Maureen Feeney is looking into being the next City Clerk which is a position appointed by the City Council. She testified that on Monday night, May 1st, 2006 she decided all by herself that the pay scales submitted by the Mayor for top City workers needed to be altered. The report was due to the council by Tuesday, May 2 at noon. So, on Tuesday morning as she was going to the Bayside Expo Center she called into her office and dictated the changes to the pay structure of the City to her assistants who changed the document that she had been sitting on for 58 days. Her assistants then sent it around to the members of her committee around 10 a.m. Those members then indicated that they "concurred" with her changes, and the whole thing was filed by noon.

She testified that she didn't know how many people were affected by the changes, nor how much it would cost the taxpayers of Boston.

Now, why do you suppose she decided not to hold a hearing on the matter, and wait till the absolute last minute to file the documents with the council, thus reducing the likelihood that anyone would really look at all the changes to the pay scales of city management workers?

Because she raised the MINIMUM salary of the City Clerk from the current level of $85,000
to $95,000. It is all about the money!!! I just figured this out in court on Wednesday morning after Feeney was off the stand, after going over and over the documents. Why would Feeney knowingly put herself in possible hotwater after just receiving a scathing indictment from Suffolk Superior Court? Because she could raise the salary of her possible next job by $10,000 a year, which has real pension implications as well.

Like the Watergate episode, the lesson is always to "follow the money!!!"

A quick note of appreciation for Councilor Ross who clearly was the councilor who answered the questions with the most honesty.

Also, I'd like to thank Michael Flaherty for coming up to me after the trial, offering a handshake and congratulating me on doing a good job. It was very genuine of him, and I think an appreciation that we are doing this because we firmly believe in open, transparent government. Best of holidays to him and his family as well.

More summary later.

Tuesday, December 12, 2006

Open Meeting Law trial started today

Today in Suffolk Superior Court, room 304, Judge Connolly presiding, the Open Meeting Law case started.

Because the burden of proof is on the defendants to prove their innocence, they present their evidence first. This is different from typical law because the framers of the statute understood that the public is at a disadvantage about knowing what goes on if people are not meeting in the prescribed manner of Open Meetings.

Councilor Feeney was the first witness called. She explained how she changed the pay categories and the pay scales for a large number of municipal employees on her own without speaking to the Mayor or any other councilor or anyone else. According to her, no councilors asked her any questions or requested information and no questions were asked of her at the Boston City Council meeting on May 3, 2006 when the pay raises for the council, the mayor and a large number of city workers were approved in 6 minutes.

Councilor Turner was the second witness. His testimony was short.

Tomorrow, defense counsel has informed the court that Councilors Murphy, Ross and Flaherty will take the stand.

Monday, December 11, 2006

Thanksgiving with the Mayor at Pine Street Inn

On Thanksgiving Day I volunteered for 3 or 4 hours at the Pine Street Inn. They have an annual holiday feast for the guests. I helped to set up tableware, serve food, clean up. It is a very enriching and humbling experience. I recommend volunteering for activities like this to all because it is impossible to come away from it without being more thankful about how lucky most of us are, and isn't that the point of Thanksgiving?

The dynamics and the people are fascinating. There was the father with his young sons around 8 to 14, taking charge of setting up the upper dining room in proper order. They do it every year. There were the middle aged cousins from the North Shore who got up at 4 a.m. to take the train into Boston because they were not sure exactly how the trains and public transportation were going to get there. Volunteers were young and old, all races, eager to do their part.

The Mayor comes in and tours the facility with the photographers and TV cameras, welcoming everyone with a hearty "Happy Thanksgiving". He caught me while I was pouring water at the tables. Some staff were grumbling that they wish that he would not come, because he just delays everything with his photo-ops. While I agree that the process could be a bit more friendly to the time crunch of the staff and guests, I applaud the Mayor for bringing the press to raise awareness of the homeless situation in Boston. He comes every year, and a man in his position does not have to do that. I also applaud Councilor Felix Arroyo who came, unannounced, without the press, and spent real time helping to serve the traditional turkey meal just as any other layperson volunteer.

The dynamics were fascinanting to me. Many of the volunteers sort of huddled together when the guests arrived for the meal, unsure at first of how to act. A number of the guests were bewildered as well, coming downstairs for a meal, not being used to having decorations, tables set up and people serving them. Quickly however, the food started moving, the controlled chaos of serving dozens of turkeys, fixings and pie and an easy comraderie and appreciation familiar to all Americans who partake in Thanksgiving took over. We all were reminded of our humanity and at our base level, hopefully, we want to help each other enjoy life.

Later, I was able to enjoy the holiday at home with friends and my wife that I love. My holiday tradition I have had since I was a teenager is to listen to Arlo Guthrie's "Alice's Restaurant". To remember about why war is bad, government can be hyprocritical, and the power of song. I was able to coerce an agreement from Clara that if we had a kid born on Thanksgiving that we would name it Alice, or Woody, or Arlo.


Saturday, December 09, 2006

More 911

Did you hear about the guy who called the Operator and asked for the number to 911?

Anyway, to continue the conversation about 911 and the Blog poster, the Globe had a good article today about the statistics of 911. I agree with the blogger, anecdote is no way to run a government. Unfortuneately, we increasingly have a government run by anecdote, at local, state and national levels. Ronald Reagan was the master of this..."I know a family, the Billingsleys, from West Fork, Iowa, and their tax payments are going to go to X if this is enacted"

I'll never forget Sam Yoon complimenting me on my website, saying something to the effect of "Kevin all your specific proposals and outlines of ideas are great, but I don't have time for that, I just need to let people know what a good person I am". Sam wins, Kevin loses. Who is the smart one? I proffer it is Sam. There is the quandary, good government does not always equal good politics.

Anyway here is a link to the article in the Globe, with the statistics of how 911 call responses are down, and how seperate but not equal response times are the status quo in the City.

Friday, December 08, 2006

Denied, Denied, Denied!!!-City Council to Stand Trial, Mayor may testify

For Whom does the Bell Toll?

In a clear indication that the blogging world is having some effect on the closed doors of City Hall, the attorney for the Mayor today in Court told the Judge that if he made Tom Menino testify, then "KEVIN MCCREA WILL BLOG ABOUT IT!", and then started to describe the headline from one of my blogs in November!

The judge kind of screwed up his face as if to say 'what is the relevance of whether Kevin McCrea blogs about something'. That line of reasoning didn't go very far.

Thanks for the Shout Out for my Blog in court today, Mrs. Eve Piemonte Stacy! (atty for the City) I'm glad someone reads my blog! I know that the Mayor doesn't because he doesn't use a computer according to the papers.

All kidding aside, there was positive news in court today. The City had its motion for summary judgement denied, had it's motion to deny testimony from the Compensation Advisory Board denied and in regard to their motion to keep the Mayor from testifying the judge ruled that he will hear the councilors testimony and then decide whether testimony from the Mayor is pertinent.

Trial starts Tuesday at 9 am! Courtroom 304, Suffolk Superior Court. Larry Dicara maybe the first to take the stand.

What a surprise, the trial has been put off....

Less than 36 hours before the trial was to start, counsel for the defense Eve Stacy "happened" to be in front of the judge as she described it to me, and the city council trial set to start this morning has been postponed indefinitely.

There is a hearing at 2 pm today to rule on their motion to dismiss, the Mayor's testimony, and hopefully to set a trial date.

As many people have predicted, they will NEVER take the stand. They will do whatever it takes to avoid having to go under oath and tell the truth.

Such heros of integrity to look up to, our elected officials. They keep saying to the court, we don't want to delay, we don't want to delay, but virtually every day I get another motion from them opposing this, quashing that,

Don't fight the Man, it's not good for your health!

Sunday, December 03, 2006

Globe Editiorial-Force of Will needed in schools

In today's sunday Globe there is an editorial: The ABC's of high achievement. It gives it's number one way to improve education as Sheer Force of Will. It then goes on to use an example of a college prep school with a large percentage of poor and minority children where virtually all of the children pass the required exams and go on to higher learning opportunities. They cite the time that teachers spend and the insistence on knowledge and performance from all those involved.

This is why when I ran for City Council I promised, in black and white, to visit every school in the Boston School System within the two years of the term. To impress upon the students, the parents, the teachers, the administrators that they mattered and that education is important and that City Government recognizes that, encourages that, and will be involved as a partner. We spend 40 percent or more of our taxes on the schools, wouldn't you want to see how that money is spent?

The Iraq War and the deceit of the Republicans, in particular the Bush Administration are what motivated me to get involved in politics. I had to do something to try and bring honesty and integrity to the political realm. As the saying goes, think Globally and act locally. I really had no idea just how poorly run and corrupt the government of the City of Boston is. As a contractor I had seen my share of insider development deals, no show paid details, corrupt water and sewer employees, etc. but I brushed it off as just the way a big City operates.

However, the more I learned during my candidacy and the more I learn and see now that I am involved in these lawsuits involving good honest government and paying closer attention to City Hall, the more I am outraged. If one looks objectively at the City of Boston they see rising crime rates, underperforming schools, and level at best services. Meanwhile the cost of living in the City through taxes is going up by 10% or so a year.

What is the response to these issues from our elected officials? The Mayor is orchestrating to give away 100 to 300 million dollars of taxpayer land for free to an extremely rich developer
so that a 1000 foot tower as a tribute to his greatness will be built. If we sold that property at market value every taxpayer in the City would get a tax cut, not a tax increase this year. Not to mention the zoning code that does not allow for a 1000 foot tower in that location. But when did the rules ever stop these guys? Rules, we don't need no stinkin' rules!

The City Councilors are taking other jobs to pad their income, spending 5 weeks in Venezuala, 10 days in Ireland, going to law school, skipping City Council meetings to babysit, etc. It does not seem like they are applying a lot of Force of Will to correct the direction the City is heading in, let alone spending time visiting all of the Public schools in the City to let our progeny know that we believe in their future.

Maybe they don't.

Friday, December 01, 2006

Open Meeting Law trial set for Next Friday, Dec. 8

The subpeona's have been served to Mayor Menino, Larry Dicara, City Clerk Salerno & others, all the councilors are on notice to be in Court next Friday, pre-trial memo's have been submitted to the court and counsel for the council says she isn't pulling any tricks out of her bag to avert the trial. It is scheduled to start in courtroom 304, Suffolk Superior Court, Judge Connelly residing at 9 a.m.

Will these politicians really take the stand under oath starting next week on how they came to approve 17 percent pay raises for themselves without a single public meeting? It would appear so, unless something out of the blue happens.

Meanwhile, City Councilor at large Felix Arroyo is ignoring the fact that he is on trial and was noticed as a witness and is spending the month in Venezuala. He is already gone and won't be back until December 31st. His office says that he works "harder in election years". At least he voted against the pay raise, knowing full well that the money could be better spent on harder working people like cops or youth workers. Jerry McDermott will be in Ireland for a week of vacation with his family during the trial so we have agreed to take him out of order and testify first on Friday.

Next time you are looking at your real estate taxes think about running for office so that you can vote yourself a 17 percent raise outside the public view and then go on vacation in non-election years.

The council also has the audacity to request a recess of the trial for that Wednesday so they can hold a city council meeting. How important could that meeting be when council members are scheduling vacations during that time?

Tuesday, November 28, 2006

Astounding Allston Assertions-from Councilor Murphy's Office

In court yesterday attorney Sweeney from the City Law Department admitted to the judge that the City is not even close to having 2500 officers as required by the City Ordinance. However, the City reiterated its claim that the Ordinance is not valid because adding police officers would be a reorganization of the department and only the Mayor can do that. They also again alledge that 12 citizens of Boston do not have standing to ask their government to enforce the law. The next hearing got moved up to December 19, 2006.

So today I decided to call up Councilor Steve Murphy's office. He is the chair of the Public Safety Committee and is usually known to be knowledgeable about police and safety issues. I wanted to ask him to introduce a bill to clear this confusion up. If a citizen goes on the City website they will see an ordinance to have 2500 police officers on the street. But if the City's position is that this ordinance is not valid, they should wipe it from the books. I thought Councilor Murphy would be the appropriate person to do so.

When I called his office I had surreal conversation around 10 a.m. with his receptionist as follows:

Recep: Councilor Murhpy's office.
KM: Kevin McCrea for Councilor Murphy.

Recep: He is not in right now, I can take a message. Are you the guy who ran last year?
KM: Yes, I am. I just don't assume that everyone knows who I am.

Recep: (Takes my phone number and asks:) Can I leave him a message?
KM: Yes I was calling about the ordinance to require more police officers.

Recep: Oh, wouldn't that be great.
KM: Yes, it would.

Recep: I live in Allston and you can't get a 911 call answered. We don't even bother
calling 911 anymore if there is an emergency.
KM: Really, I didn't realize it was so bad in Allston. One of my friends had her 13 year old
daughter beaten up in Dorchester by 3 kids on Halloween night and it took 911 five
hours to respond.

Recep: Someone needs to do something
KM: I agree. Thanks for your time and please have Councilor Murphy call me.

I couldn't believe it. The receptionist in the Public Safety Committee chairs office is telling me that we can't rely on 911 service in this City. Astounding.

Hope Steve calls me back. I agree with his office employee, someone needs to do something.

Monday, November 27, 2006

Police Lawsuit-Day one in court

We are in court today with the city of Boston at 2 pm at Suffolk Superior Court. The City is arguing that citizens of Boston don't have standing in asking the City Government to enforce their own ordinances and that the number of police and the city budget are such top secret subjects that the City needs a protective order to shield that information from the public.

We'll see.

Sunday, November 26, 2006

Boston Budget Analysis---Where the money is going, and How great are the City Benefits?

From the numbers man:

Ladies and gentleman - for your perusing pleasure, I have attached a spreadsheet of critical budget item comparisons between 1997 and 2007 city budgets - highlights:
- The city of Boston, despite flat population and dramatically lower school populations has seen to increase headcount by 3% over the past 10 years
- The budget has increased by 55% - almost twice the rate of inflation.
- In 2007 we will have as many police as in 1997 - the police have drawn the "short" straw with average expenditure per employee (this is all expenses - not just salaries - if we get into detail - no pun intended - we will probably see fairly flat capital expenditures and most of the increases going to payroll costs increasing 35% - (note healthcare is not included in this)
- We will have 4% fewer people in the Boston FD - with a 46% increase in expenditure per employee - again probably mostly in wages - health/life benefits not included here)
- Public works expenditure is indeed up 65% - hooray - off of a small base - employees way down - probably due to outsourcing - thus N/A in several ratio calculations.
The schools - aaaah - the schools - if I am reading this correctly - we can observe the following (note health and other benefits are included in school calculations):
Operating budget - up 59%
External funds budget - up 100%
Capital budget - up 171%
Total budget - up 67%
Cost per pupil up 85% and expected to rise another 22% over the next 3 years!!!
What do we get for all this
Public works - we have a new little street sweeper that comes down the alley every couple of weeks
Police - probably about status quo
Fire - about status quo
Schools - overall scores are up - but we still rank in the bottom 5 school districts based on 10th grade MCAS and SAT scores - a rising tide has raised all the ships - but our ship isn't sailing any faster!
One finail interesting item of note - the city of Boston is absorbing health care for about 15,700 employees (these must be amazing benefits - assuming a few people in the government are married to each other, essentially 100% of employees choose city health care - almost none use their spouse's!)
In addition, we have almost as many retirees (12,899) as employees drawing city health benefits - actuarially almost impossible until you learn that everyone eligible to draw a pension (at 10 years I believe) is eligible for health coverage the minute they walk out the door (not at 62 or 65 like most other plans where they expect you to work until retirement). I need to do some research to confirm this is the case, but I know for a fact that at $8000 per employee - that's the equivalent of an immediate annuity worth about $125,000!
Nice perk!

Tuesday, November 21, 2006

MBTA workers Union jumping on Open Meeting Bandwagon

In what I'm sure will be an example of why you should hire a lawyer, the MBTA workers union today filed an Open Meeting Lawsuit against the Turnpike Board. They went into executive session to discuss taking down the tolls, without really giving a valid reason as to which of the exemptions to the Open Meeting Law they were going into executive session over.

Shirley Kressel was at the meeting and told members present that a violation was occurring. One of the "old" turnpike board members even chided one of the new Romney appointees about "so, this is the new and transparent board, huh?"

The amazing thing is that they got their hearing scheduled in 10 days!!! While we have had to wait months and years for our suit to get resolved. Clearly, knowledgeable lawyers are better than pro se citizens like us.

Can't wait to find how they did it, maybe a short order of notice.

Sunday, November 19, 2006

Section Eight is Great !!! (Why pay your rent when you can watch the NFL?)

I was recently at one of my buildings that has Section 8. One of the tenants has had an outstanding balance of between $100 and $170 for over a year. Her monthly portion of the bill for quite some time was $4. It is now about $140 since she has a job. Single woman, no kids, no dependents. She is very nice and keeps me up to date on any problems that arise, we are quite friendly.

I was at the building to install the new Carbon Monoxide detectors required by law. These are just one more safety measure that increases the cost of housing in MA, because one or a few people died because someone didn't follow the building code. Does it make the house safer?-yes Would putting padded floors in everywhere make houses safer? Watch out, it might be coming...

Anyway, every month she gives me a written explanation of why she can't pay the rent or the back rent. I hadn't been in her apartment in awhile, but boy was it nice!! About a 5 foot wide projection TV with full cable, and verizon DSL for her computer! It made me feel ashamed that I would actually even ask her for the $100 in rent that she owed me, because clearly life was very difficult for her. Who can be bothered paying their rent when there are important cable and telephone DSL bills to pay!

To think that I got rid of my cable because I thought it was an extravagent expense!!! Maybe I should be on section 8? Of course the city just raised the taxes on the building by 25% this year. I wonder if I can raise her rent by 25%?

Saturday, November 18, 2006

Judge questions City Council's ability to comprehend

We received "entry" in the first open meeting lawsuit yesterday. Yes, the council is guilty of repeated violations in a serial fashion of the Open Meeting Law. One line in particular from Judge Holtz's decision stood out:

"It is unclear as to just how many decisions the Supreme Judicial Court and/or injunctions are necessary for the defendants to comprehend that the Open Meeting Law means just that-
open meetings."

I couldn't say it any better.

Perhaps the future MCAS multiple choice questionaire would be as follows:

If you are a legislative branch politician, Open Meetings means what:

1) Have your aids talk to their aids to work everything out so you won't be bothered
2) Have a quorum minus one meet in a room while the others stand outside and
don't let anyone know about it
3) Have Open Meetings
4) Just do what the Executive Branch tells you to

Remember, 3 is the magic number!

Globe questions funny money at City Hall

Nice editorial from the Globe this morning, even if they dont have all of their facts straight. Notice that they dont blame the Mayor (or even the City Council) for the disparity in pay at the BRA. The Mayor is in control of the BRA, but plays both sides of the coin for his own benefit. When they do something that looks good he takes credit for it, when he wants them to take the hit for the dirty work he can say they are independent. I will never forget Michael Flahertys words to me when I asked why they voted away any oversight over the BRA "who needs control of the BRA?"

The Globe will obliquely criticize a government agency but never say "how come the Mayor of 13 years allows this to go on"? They know what goes on, but wont assign responsibility. Are they afraid of the Mayor as well, or just part of the monied elite running the city.

Secondly the article says the BRA is independent of the City, however, there is approximately 7 million dollars in capital improvements given to the BRA from the City in this years fiscal budget, 7 million dollars with no oversight. Remember that when you pay your tax bill!

The article:

SALARIES OF top managers in the Boston Redevelopment Authority outstrip those of other City Hall executives whose responsibilities are considerably greater and whose jobs are more transparent.

Boston's five-member compensation advisory board analyzes salaries and cost of living indexes in other cities before recommending executive salary ranges to Mayor Thomas Menino. Menino, known as tightfisted, often lowballs even his most talented managers. The BRA, however, operates under no such constraints because, as a quasi-public agency, it receives no funds directly from the city's operating budget. The BRA's culture is closer to a private corporation than a city department. And its salaries and perquisites are more generous than other departments at City Hall, sometimes unfairly.

Quasi-public is still public. The BRA has revenues from ground leases and sales of public lands. Its statutory authority to grant tax concessions and acquire property through eminent domain derives from the Legislature. Accountability and transparency are just as relevant on the ninth floor of City Hall, where the BRA staffers work, as any other floor.

Salary discrepancies between BRA executives and other city managers look even more imbalanced in light of the scope of their duties. William Sinnott , City Hall's top lawyer, earns $125,500 for overseeing the legal work of a city with a $2.1 billion budget and more than 16,000 employees. Kevin Morrison , his counterpart at the BRA, earns $137,676 for his legal oversight of an agency with 290 employees and an annual budget of $16 million. This week, Dot Joyce signed on as Menino's press secretary for $95,000 annually. Susan Elsbree , her BRA counterpart, earns $127,551 for buffing up the image of her agency. Tony Marinello , the BRA's administration and finance chief, makes $131,368 while Karen Connor , who supervises budgets for the entire city, earns $107,689. Mayor Menino was so impressed with the organizational skills of his 29-year-old former campaign manager Beth Leonard that he recommended her for a $115,235 post as chief of staff at the BRA. But there is something amiss in the salary structure when she out earns experienced City Hall managers like Antonia Pollak , Thomas Tinlin , and William Good , commissioners of parks, transportation, and inspectional services, respectively, who earn between $102,304 and $113,074.

BRA executives perform complicated work and face some of the wiliest real estate moguls in the city. But top executives in City Hall bear even greater responsibilities for the safety and well-being of Bostonians. Executives understand there are sacrifices in choosing public service. But city department heads are bearing more than their fair share of pain while BRA executives go to town

Friday, November 17, 2006

Myth vs. Reality of what your taxes are buying

A group of us have been talking about taxes and funding (too bad our elected officials at city hall don't look closely at this). Of the properties I own or am part owner of in the City, the assessments went up a minimum of 17 percent up to 30 percent. Not all are in the South End, some are in tough areas of Roxbury. Unfortuneately, I and most other residents of the city can't just vote ourselves 17 percent raises in back room deals.

Here are some of the myth v. reality's one accountant friend sent in:

That's the point - it's not what you pay - it's what you get. One idea for the presentation - a "myth/reality" page. The mayor's PR team has done an amazing job of convincing people of things that aren't true. Had drinks with someone yesterday - and he says the schools are underfunded and understaffed, taxes are low (actually for him they are - he has two kids in the Kilmer school and lives in W Roxbury - all the benefits of the suburbs and $5000 in taxes) and life is generally good in Beantown. Here are some examples:

Myth - schools are underfunded Reality - we spend $17,000 per student or $400,000 plus per class

Myth - schools are understaffed Reality - staffing levels per pupil are at all time highs

Myth - schools are improving Reality - scores are up, but we still rank 3rd from the bottom in MCAS and SAT scores

Myth - City struggles to find enough revenues Reality - we spend $3500 per person on city government (we could use some comparisonsto other cities/towns on this)

Myth - Without Mayor Menino - none of the advances of the city would have happened Reality - virtually every city in the country has seen a rennaissance - but we are one of the only ones losing population

Thursday, November 16, 2006

"Hope is not a method"- Hillary Clinton

Wonder if she is going to tell that to Deval Patrick.

The City finally raised the real estate tax on Mayor Menino's house, from 300K to 400K. Of course, the city the raised the value on the house I live in by 400k on its own. So, since I ran for public office criticizing the "corruption, collusion, and cronyism" at City Hall they have doubled the value of my home.

Coincidence? I think not. Just like it's not coincidence that Menino's campaign secretary becomes the chief of staff at the BRA and gets a 20 percent raise after 6 months on the job, then takes 3 months off. Wish I could get a job like that!!! Great article in today's Globe by Donovan Slack about this.

Tuesday, November 07, 2006

Microscope needed for New Orleans Clinic-Please Help

I have made friends with a group of what I call "anarchastic doctors" who set up the only free health care clinic in New Orleans after Katrina. They are all great people who realized the only way to cut through all the red tape was to do this themselves. They are serving people from throughout the area.

They have a specific request for a microscope if anyone could help, that would be great. If it is in Boston, I could take it down for them in my travels if we can't ship it.

Here is the request:

Anne Mulle <>
Reply-To: Anne Mulle <>
Subject: Microscope

Greetings to CGHC Docs & friends!

Common Ground is looking for a microscope to do wet mounts, KOH preps for
skin. Does anyone know of any labs or hospitals that may have a microscope
waiting to have a new home?



Random election day thoughts from the Crescent City

First of all please vote, even if you go to the polls leave a bunch of blanks and write in the name of the Raving Green Loonies party candidate from Lincolnshire in the UK, it sends a message. Make no mistake, today's politicians take most folks ambivalence for granted.

I think the biggest issue for change on a ballot is here in N.O. where they are voting to get rid of the inherently corrupt 7 assessor system. I haven't seen any advertisements for keeping the current system.

I am for the Arizona measure to have a 1 million dollar lottery for voting participants. We need to get more people involved. So many people feel as though the politicians don't care about their needs or concerns, just the people who can pay the "admission fee."

This years political season isn't over yet and already papers are writing about next years. The West Roxbury Transcript called me to see if I'm running for city council again. Highly unlikely, as I've made commitments to my wife, to rebuilding in New Orleans, and I've just put another historical building under agreement to renovate last week.

I'd like the papers to do a column on campaign promises six months into each politicians terms. I heard so many promises from city council campaigners, and have seen not much but emptiness and pettiness so far. Work on housing, schools, PILOT payments, more streamlined permitting (what a joke, every politician from Sam Yoon, to Tom Menino, to Deval Patrick talks about this but I'm yet to see it at any building department I go into), and yet I don't see anything. I will say in watching a City Council meeting on line that Michael Flaherty runs an objective tight ship. Also, I hope Sam Yoon continues with his pursuit of a 311 plan (watch out for the Mayor stealing your idea!! Ask John Tobin). The 311 calls work well in New Orleans and it is an efficient way to seperate emergency calls from neighborhood issue calls.

Morning 40 Federation is a great band out of New Orleans who should be on Saturday Night Live. They are from the Bywater, and headlined last weekends neighborhood festival which was a great time. The premise of the band is that every morning they wake up and have a 40 ounce malt liquor before doing anything. They are tight, they have charisma in buckets, and sign great songs about being drunk and partying, sometimes through a megaphone. "Wake up, turn over and carry me home" is one of the clever lines, surely only a love drunk person (or drunk love) could understand.

Congressman Jefferson is in the fight of his life here, he will probably win the first round, but may lose a run off.

New Orleans is in tough shape. The violence here continues unabated. Virtually every other day there is a murder, and this in a city 1/3 the size of Boston. People are getting crazy, drugs abound and I don't hear as many hammers or nailguns which usually form a daily cacophony in the neighborhoods. People are excited about the Saints, but not a lot of people are marching back into the City. There is no discernable increase in population, and of course money for rebuilding is stuck in the pipelines.

Rumors....about the City Council Race, it all depends on whether Murphy gets hitched to the Patrick regime. If he goes, then John Connolly is on the Council. Someone at my Ward Committee meeting said there maybe an agreement between Connolly and Tobin to let Connolly have the West Roxbury Seat and Tobin runs at Large. Doesn't make much sense to me as John has almost won city wide already, why would he take a step back to district councilor? But, Tobin wants to advance and although he is quite popular in his district, it is limiting him. I wonder if he will again vote for Flaherty for City Council President? If I had to handicap it right now, if Murphy stays and runs again, the money would be on all 13 councilors being re-elected. Remember 98 percent of incumbents get sent back to their office in MA. Especially if no one starts running by Jan. 1. Remember both Sam and John were running at this point last year, it is no coincidence that they were the top vote getters amongst the new candidates.

A police union person I spoke to was hesitant to talk about the new police commissioner. Very cagey, which doesn't bode well. A friend is a public defender in Lowell and she says that the police there are notorious for pulling over minorities, especially asian and hispanic kids. So, there are an inordinant amount of drug related arrests for those kids, but not as many for the whites, even though she says they believe that just as many of the white kids have low level amounts of drugs as well. Sort of like Bill Belichick's kid in Weston!

The New York Times had an interesting piece on the City Council in New York. (Name one! I dare you!) They just voted themselves 25% raises, although they, like Boston do not have much power and many of the members hold outside jobs making hundreds of thousands a year. However, they do have two, four year term limits so at least there is turnover. They now make $110 or $120K a year, the second highest in the country and they are the only body in NY that can vote itself raises.

I am getting frustrated working in New Orleans. The low level of education and high level of incompetence makes getting things done increasingly difficult. In the last day I've had countertops made incorrectly, tile that was ordered two months ago turning out to not having been ordered, doorknobs that I've been after for months coming in and being the wrong ones.
It completely underscores the importance of good education.

Speaking of which there are some very fishy numbers in the Boston School Department budget, more on that later. But, essentially we are spending more and more on the budget while we have fewer and fewer students.

Go out and vote, and do a good deed,


Thursday, November 02, 2006

Show Me the Money!!!

I gave a powerpoint presentation last night at the Association of Boston Neighborhood's meeting in the Fenway. It was called "Show Me the Money!" and it tries to simply explain how much money the city of boston has, where we get that money, who pays, who doesn't, how the government gives away millions of our tax dollars, and how we can afford more cops.

I'd like to thank Sam Yoon for sending one of his office staff over to learn about this stuff. The biggest boondoggle coming down the Pike is that the Mayor is about to give away 100 million to 200 Million dollars worth of our money when he gives away the Winthrop Square garage to the BRA for FREE!!!!

I implored (I believe it was Frank) Councilor Yoon's representative to try and get Sam to at least have the Mayor give the property away with a 99 year lease which is common in large government transactions so that 100 years from now our grandchildren will be given this large gift from our generation to help pay their taxes!!

The Globe was there as well and hopefully they might write something about it. Last night was the beta test, and we have some tweaking to do, but hopefully we will be able to post this on the ABN website: and bring it around the city to help educate the citizens about how the city works.

Off to New Orleans, can't wait to see Kermit Ruffins tonight in the Bywater! Unbelievable, but one of my tenants down there is complaining about getting the heat turned on. It's only 70 degrees!!!

Make sure and vote next tuesday, I won't be in town but I voted at City Hall which is Open weekdays till 4:30 to vote and saturdays from 10 to 2. Let your voice be heard. One vote for Deval from my camp!

Tuesday, October 31, 2006

City Law Department disobeying the Law

I have rarely felt so outraged at the City Government which is supposed to serve the people. When we filed the Police Lawsuit asking the City to provide enough police to protect the public we also filed questions, which are known as interrogatories, that the City is required to answer in 45 days.

That 45 days came and went, I called the City's lawyer Mark Sweeney who said he'd get back to me. He had an underling, Dave Sterritt, call me back to request an additional month to answer the questions. We plaintiffs agreed to let them have that extra time, and asked them to memorialize this in an email. After waiting a few days, I called them back and they informed us they were just going to ignore the Rules of Civil Procedure and not answer the interrogatories.

How are citizens supposed to feel when the government repeatedly ignores its own rules? What if we decided we didn't want to send in our taxes when required? Or get inspections for our cars? Why do they get to pick and choose the rules to follow, but we have to follow them all or face the consequences.

Anyway, it turns out there is a remedy for this, which I'm sure they knew, but they just want to take advantage of the fact that we are not lawyers. Here it is:


1)Defendant City of Boston has not answered the Interrogatories served on the Defendant on August 25, 2006 by the Suffolk County Sheriff

2) On October 25, 2006 Plaintiff Kevin McCrea called counsel for the Defendant Mark Sweeney to request the answers to interrogatories. Counsel seemed genuinely surprised to discover they were due and asked to get back to Mr. McCrea the next day.

3) On October 26, 2006 counsel for the Defendant Dave Sterritt (sp?) called Mr. McCrea and requested an extra 30 days or so until December 1, 2006 to answer the interrogatories. Mr. McCrea granted this request with the proviso that he needed to check with his co-plaintiffs. He asked Attorney Sterritt to memorialize this agreement in an email.

4) After receiving no response from Defendant, Mr. McCrea called Attorney Sterritt on October 30, 2006. Mr. McCrea let Attorney Sterritt know that the plaintiffs would allow the Defendant until December 1st.

5) Attorney Sterritt then informed Mr. McCrea this is like a "chess match" and that he and the defendant would not be following the Rules of Civil Procedure, and that they would not be answering the interrogatories at all. Mr. McCrea pointed out that he would be violating the rules of Civil Procedure, and that maybe a complaint to the Board of Bar Overseers would be warranted. Attorney Sterritt said he was just “doing what his bosses told him to do.”

6) Rule 33 says as follows:

3) Answers; Final Request for Answers. Each interrogatory shall be answered separately and fully in writing under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of the answer; each answer or objection shall be preceded by the interrogatory to which it responds. The answers are to be signed by the person making them, the objections by the person or attorney making them. The party upon whom the interrogatories have been served shall serve answers and objections, if any, within 45 days after the service of the interrogatories. The court may, on motion with or without notice, specify a shorter or longer time. Unless otherwise specified, further answers to interrogatories shall be served within 30 days of the entry of the order to answer further. The interrogating party may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. Alternatively, for failure to serve timely answers or objections to interrogatories (or further answers, as the case may be), the interrogating party may serve a final request for answers, specifying the failure. The final request for answers shall state that the interrogating party may apply for final judgment for relief or dismissal pursuant to paragraph 4 in the event that answers or objections are not timely received. The party upon whom the interrogatories have been served shall serve the answers or objections either within 30 days from the date of service of the final request or prior to the filing of an application for a final judgment for relief or dismissal, whichever is later.

(4) Application for Final Judgment; Affidavit. In the event that answers or objections have not been received and after the expiration of 40 days from the date of service of the final request for answers, or such further time as the parties may agree upon in writing or the court may allow, the interrogating party may file a written application for entry of final judgment for relief or dismissal. The period of time set forth in the previous sentence shall be deemed to include the three day period allowed pursuant to Rule 6(d). The application must be accompanied by a copy of the final request for answers and an affidavit containing the following information:

a. the date and manner in which interrogatories were served on the party against whom relief is sought;

b. the fact that the 45-day time period for service of answers or objections has expired, and no answers have been received;

c. the date and manner in which the final request for answers was served;

d. the fact that the 40-day time period for answers or objections after a final request for answers has expired, and that no answers or objections have been received; and

e. that the party now applies for final judgment for relief or dismissal.

7) Plaintiff formally requests their interrogatories to be answered in accordance with rule 33 in 30 days. If not, they will request final judgment in the case.

8) Since Defendant used deceit in agreeing to answer the interrogatories, and then reneging on that promise without informing the Plaintiff, Plaintiff considers that the 30 day waiting period for the Interrogatories to be answered should be started on October 27, the day after Defendants agreed to answer the Interrogatories. If Defendants had been honest with the Plaintiffs on October 26 and informed Plaintiffs they had no intention of answering the interrogatories, Plaintiffs would have filed this request on October 27. Therefore, Defendants have until November 27, 2006 to answer the interrogatories.

Saturday, October 28, 2006


One of the few things missing from the Hub of the Universe here is a good call and response from the stage of a trombone playing band, yelling out "Tuba, Tuba, Tuba, Tuba!!!", with the audience responding in kind.

That however is one of the great things you will find in New Orleans. I recently had the good fortune of attending a CD recording concert at Tipitina's, legendary home of professor Longhair, just down on Tchoupitoulas Street.

BONERAMA is the name of the band, made up of 4 trombone players, a bass tuba, guitarist, and alternating drummers. OF course their fans wear the obligatory "Got Bone" t-shirts which never cease to upperly crease my smile.

They do covers, originals, solos, improv's, but the highlight for me was the extended solo of the Bass Tuba covering Helter Skelter by the Beatles. You don't see too many Tuba players in Boston jumping up and down mid-solo with excitement. That's the kind of energy you get for live performance in the crescent city. Won't see that at Symphony Hall.

Find their cd when it comes out and Enjoy: Tuba, Tuba, Tuba, Tuba

Wednesday, October 25, 2006

Rep. St. Fleur says City not taking States money for cops

Marie St. Fleur was in Dorchester this week speaking to an older crowd where she was questioned about the violence in the city. She said that the City has received money from the State, but that the city isn't using the money for police staffing.

I wonder if this is just pass the buck politics or if there is something really going on here.

Monday, October 23, 2006

New Police Chief-good news

We got a new police chief today, and I like what I hear about him. Community policing and being proactive about crime seem to be proven techniques.

Our new D-4 police captain came to our community meeting last week and is an impressive gentleman. I have heard great compliments from the Alston-Brighton community. He also believes in being responsive to the community, and was honest enough to let us know he is still learning about our district, although he was a patrolman here in the past. He runs marathons and has 3 children in the BPS. Best of luck to him!

I did ask him if getting new officers would make him reorganize the department, and he had a quizzical look on his face. He responded that no, it didnt make him reorganize the department, but that rookie officers initially spend time with more experienced officers. He also said that he prefers younger officers to older officers because they have more energy and go get them type of attitude.

stay safe!

Saturday, October 21, 2006

Does Mother Hen Close the Chicken Coop Door to Cluck with the Turks?

My wife and I enjoyed our first bottle of McCrea Wine last night a 2003 syrah, a tiny celebration
of a great week and a year of marriage without a pre-nuptial agreement!

If you haven't seen it yet, you need to watch the video of the Wednesday City Council meeting. The council nearly "imploded" as the Weekly Dig describes over a congratulatroy resolution with a picture of Team Unity on it. Steve Murphy was absolutely correct in his point that politcal pictures have no room on public resolutions, but the discussion degraded from there.

See it here: The good stuff happens about an hour and twenty minutes in. Maureen Feeney is especially vibrant, asking if she should wear a shirt that says "Team Disunity", and m0ck compliments them for posting their meetings because "the rest of us are in enough hot water." She almost gives a compelling arguement for all discussions being outside of the public view, sort of the way George Bush, Dick Cheney and Karl Rove like it.

Donovan Slack's name is bandied about the council and later she quotes Michael Flaherty as saying he'd like to be part of Team Unity. So, I went to Chuck Turner and asked "can a white man be part of Team Unity?" Chuck responded in the affirmative and said that anyone who subscribes to their progressive agenda is eligible. "we'd be crazy not to include other people. If we could get a majority of 7 we could really get some things done." I wonder if Team Unity could publish or let it be known exactly what the guidelines are that need to be followed. I wonder if Gibran Rivera or Sonia Chang-Diaz, or maybe more interestingly if Samiha Diaz could join?

Interestingly, Chuck told me that he is not supporting Dianne Wilkerson for State Senate. He has had one too many times of Dianne selling herself and her constituents out. Most recently by supporting Northeastern University putting 1200 more beds in Roxbury. To say that Dianne has sold out to the establishment (too cheaply it appears from her myriad money woes) is pretty noteworthy from my district councilor, who proudly sports his Grace Ross for governor button.

Hey, it just occurred to me that political campaign stuff is not allowed in government buildings. I guess that Chuck must have forgot about that. So many rules, hard to choose which ones to follow.

A quick rundown of the local political scene. Steven Murphy has been actively campaigning for Deval Patrick and I'm sure is craving a Patrick win and a chance for a position, probably in Public Safety, in a new democratic regime. That would put John Connelly on the council. John has been out and about, recently seen at a community event in East Boston. That would put Matt O'Malley on the bubble. Matt has been working as Sheriff Cabral's liason to the State House. Patricia White has, of course, retired to raise her family. Ed Flynn has been teaching public school in Boston, computer courses, and has been active in South Boston. He is the leader of a community crime prevention group that has been asking for more police and more funding to combat the terrible drug problems in Southie.

(aside: we saw the Departed last night and were not impressed with it, quite disappointing)

I was at a fundraiser the other night where Byron Rushing gave a wonderful talk about the history of Roxbury. In a big slice of humble pie, I was sitting next to Shiela Dylan of DND and some other City Hall development types. Shiela was very nice and enjoyable, the others ignored my wife and I. No one had a clue who I was, as they discussed BRA and other city projects. It was Nuestra's 25th anniversary, and a great event overall for a group that has done a lot of great work building housing and communites.

A building inspector friend of mine called me up yesterday to talk about some things. He is really getting frustrated. As he said "if you don't know anybody they can make you wait 6 months to get anything done, if you have the right connections you get your permit in 2 days." He just keeps his head down and his mouth shut because he knows it is futile to try and fight this entrenched system. He then described to me something I hadn't about since the 80's here: building inspectors shaking down contractors for money. There is a relatively new inspector that was coming into his district and giving contractors a hard time. One of the contractors asked my friend if he could talk to him and he described what was going on. This is very disturbing news, and I'm not sure what to do or what can be done about it.

Finally, one of the City Councilors told me that he is sure that Menino is running again next time around. Great News!!!

Enjoy the weekend, preferably on two wheels!

Thursday, October 19, 2006

City Council and Mayor to stand trial !!!

I am shocked, it still hasn't sunk in. Occasionally one goes to court and justice is served. Today, October 19, 2006 justice was served: On December 8, the Boston City Council will stand trial for violating the Open Meeting Law in their machinations to approve pay raises for the Mayor, themselves and other City personnel.

The judge in Superior Court today recognized the importance of the Open Meeting Law, saying that it was an essential element in a democracy and that the citizens are entitled to a speedy trial. Despite the protestations of the Counsel, to the Counsel, to the Council the judge ruled that there was no reason or room for them to be allowed to file a motion for summary judgement.

This is hopefully a huge victory for the Citizens of the Commonwealth. It upholds our position that because the rules in the Open Meeting Law are so different from regular law in that the Defendants must prove their innocence (not innocent until proven guilty as is normally the case) and because of the nature of the violation the plaintiffs do not have access to the information they need to prosecute a case, that defendants are not entitled to a motion for summary judgement. In short, the court has ruled that if there is even a valid suspicion that a government body violated the Open Meeting Law they must stand trial to prove their innocence.

This puts real teeth in the Open Meeting Law and will hopefully pursuade government bodies in the Commonwealth to open up their doors and let the public and the press in to see the "sausage making" that is lawmaking.

Although I am not a lawyer, I believe that the council's only options at this point are to plead guilty or to stand trial. We have also included Mayor Menino on the list of our witnesses, as well as Larry Dicara the head of the compensation committee, the City Clerk and some other material witnesses. Counsel for the Council has indicated they will fight vigorously to keep the Mayor from having to testify. Everyone else is fair game.

A huge tip of the cap to Kathlene Devine & Shirley Kressel for their yeoman's work on this case.

Wednesday, October 18, 2006

Does paying the guys who approve your plans seem a conflict of Interest?

I was sitting in the zoning board of appeals hearings on the 8th floor of City Hall yesterday, with the usual cast of characters, and sure enough Larry Dicara was representing a client before the board and of course it was approved.

Why wouldn't it? Larry is the head of the compensation committee which recently approved raises for the members of the zoning board of appeal. I was wondering if Larry had ever been rejected by the ZBA?? It sure seems like the Harlem Globetrotters vs. the Washington Generals whenever he (and others on the inside) take the stage.

Is it just me, or does this seem a bit shady? Wouldn't you think the whole board should just recuse themselves? Members of the board often recuse themselves when they have any sort of interest in a project.

And we wonder why, as counselor Flaherty mentioned in his last mass email, businesses are leaving Boston. As the recent Nobel laurate spoke about on NPR the other day: the rule of law and open government are essential to economic prosperity.

Won't find that here!!!

Monday, October 16, 2006

Newspapers joining in the Open Meeting Excitement!

I got an email from a reporter at one of the big dailies today who thanked us for our work. It is nice to have your hard work appreciated.

The reporter wrote:
"Congratulations on
vindicating the public's right in that case. I want to study
procedural steps for possible use" (in a new case)

It would be nice if the press took up the gauntlet in the
for open government!!!

Go get em guys!


I just got back from Italy where I attended my brother in law's wedding. Wonderful adventure through the lakes region of northern Italy and southern Switzerland. One of the many great reasons to travel is to see how other people live and work, and tackle the problems of daily living.

A quite enjoyable part of Europe is the street life in the towns and cities. People walk, talk, enjoy company into late in the evening in a relaxed casual way. We have areas like that here in Boston, the most european of american cities, such as the North and South Ends, Back Bay, Kenmore. I still believe we should amend our Puritan laws to allow some venues to remain open later, at least on weekends.

What always strikes Clara and I when we return to Boston is how dirty our streets are. As soon as we got off the T from the airport, there it is on Mass Ave and Columbus, papers scattered around, food store trash, etc. It is one of Clara's biggest disappointments in this city and we both agree that it comes from a lack of respect and care for the City, and a lack of Pride. I go deeper into the populace's psyche than she, with my theory that it is hard to respect a city that does not respect its citizens but whatever the reason it is clear that Boston could and should be cleaner.

We visited the Ducati Factory outside Bologna last Thursday which was interesting. It was neat to see the names of some contemporaries of mine from my racing career in the Northeast on the walls of the museum extolling their victories. Their motto is "we may not be the best, but there are none better." They have about 1000 employees making the beautiful desmo driven machines, of which I have never owned.

The wedding was wonderful, full of the wonderful things you hope for with a foreign wedding....beautiful Cathedrals, exquisite meals, 10 course dinner, dancing, discussions about business opportunities throughout the world, a hidden away wine cellar, with subterranean arched brick vaulted cielings where the gentlemen from the wedding party, the house chefs and local winemaker retreated to mid ceremony to sample 1000 euro bottles of wine and exsquisite champagne. It was great to relax, be a minor guest and fly on the wall and drink in the atmosphere.

I may have discovered why Italy has such a low birthrate (1.37 children per woman). The mattreses are abomitable!!! We stayed in a few different 3 star hotels at around 100 euros a night and they all had terrible mattresses, often just two twin beds pushed together with a queen sized sheet. Who can get excited about bedtime in that environment! More Vino, signori!!!

We also felt real coldness at times from the public sector. It is clear that the world is not happy with or excited about Americans these days, and that is in Italy which is allegedly one of our stronger allies according to our president. The vast majority of the wedding party was from Columbia, but they almost all speak english and would converse in English with service providers. At the rehearsal dinner of about 40, I noted that Clara's mother and I were the only ones born in the United States. It was very odd to see Italian's treating Columbian's poorly because of the assumed American ties.

Doesn't seem like I missed much while I was gone, more shootings, mudslinging in the governors race, and national republican implosion. There was a great article in the Economist about Intellectual capital and the status of the different EU countries with Denmark and Sweden getting high marks, Italy and Germany low. It reinforced the importance of education, spending time with children by families, and putting people into proper jobs.

Finally, I've been reading Doris Kearns Goodwin's book about Abraham Lincoln courtesy of the Boston Public Library. It is a great read, and wonderful look into the mid 19th century. My favorite quote so far is from the Pennsylvania political boss who intoned "an honest politician is one who, when he is bought, stays bought!"

Sunday, October 08, 2006

How much is the City Spending to defend Collusion?

Recently, my coplaintiff Kathleen Devine and I were in court on the second Open Meeting Lawsuit and we discovered a new lawyer handling the case for the City, her name is Eve Pieomonte Stacy. She formerly worked for the City's Law Department but has since moved on to greener pastures with Roach and Carpenter a boutique firm whose namesake is head of the Board of Bar Overseers. She will be handling the suit about the pay raises for the City. I guess it is a sort of backhanded compliment that a lawyer, Michael Flaherty, who has a bunch of lawyers, the City Law Department, decides that those aren't enough so they use taxpayer money to hire outside lawyers to defend themselves. It must be nice to have our money at their disposal to use. I did a FOIA search and found that they were hired as part of a no bid $100,000 contract to defend the city on a number of items at $140 dollars an hour.

The City also announced in court that they would be appealing the decision in the first Open Meeting Suit. This allows the politicians to continue their charade about not being guilty (yet!!!) and again using precious monetary City resources to defend them. Remember, we have offered many times to sit down with them and work out a solution, but compromise seems to be beneath them, but then again they are certain they have not done anything wrong, so as any "innocent" defendant, like OJ, would do they are getting the best defense our tax dollars can buy them.

I do want to commend Michael Flaherty however on a recent issue. One of my blog readers informed me that there seemed to be a "never ending" meeting posted on the City's website of the Rules Committee. It started in February and ended December 31st, Monday through Friday in the Curley Room. What this did was allow a vehicle for the counselors todo an end around the Open Meeting Law by popping into the Curley Room and discuss whatever they wanted to discuss and be able to claim that the meeting was Posted! You would have to camp out in the Curley room to happen to catch them.

Shirley Kressel spoke to and wrote emails to the City Clerk asking this to be taken down or clarified. For about two weeks we got no response. Before filing another Open Meeting Lawsuit (which is really wearing us down) I suggested calling Michael Flaherty first and trying to work it out. Over the course of another two weeks we had a few conversations, he did some checking and eventually he had the posting taken down.

Although Michael will spin this as him taking the lead in crafting new rules due to the courts ruling, don't believe it. The councilors have been doing everything they can to circumvent the Open Meeting Law. As Mr. Flaherty said to me, "this is the way things have been done for years." In that I agree with him, this certainly predated him. However, as he explained to me his new rules allow a bill to goto a committee chairperson who is then allowed to work on, edit, add, subtract all he/she wants then submit it back to the full council without ever having an open discussion on it, and have a vote on it. The public would never know, and would have no chance to be heard. How Mr. Flaherty can claim this is open, transparent government is beyond me. It may meet the letter of the law, but certainly not the spirit. Everyone who votes him back in as council president is complicit in this version of government.

Speaking of less than open bodies, my Ward 9 committee has refused to have a meeting during this election cycle. As a committee member I have asked and emailed the members to hold a meeting so we can interview, vote on and support candidates. Why would we want to do that, I mean we are only a democratic ward committee and this is the middle of election season????
The reason is probably because our Ward is run by politicos who are loyal to Dianne Wilkerson and do not want any hard questions or democracy to get in the way of their loyal daughter being reinstated. It certainly doesn't get me fired up about the greatness of the Democratic Party over, say, the Republicans. So much for grass roots, getting people involved politically and asking the questions that makes democracy excel.

Meanwhile on the home front, we've had two more car break-ins, and a car left over from drug deal left at the end of our alley blocking the driveway. Why would anyone want to move to the suburbs?

Status of Police Lawsuit

As expected, the City of Boston filed a motion to dismiss our suit asking the court to make the City enforce its ordinance that the police department have 2500 officers. The reasons they gave in their argument are as follows: plaintiffs have no standing, the ordinance isn't valid, and that adding officers to the police force would constitute a reorganization of the police department and only the mayor can do that.

Of course we disagree. We think it reasonable that 12 citizens of Boston have standing in the City of Boston. We think the ordinance is valid since you can see it on the city's website of ordinances and the city clerk said in the Globe that it is valid. Finally we certainly don't buy the argument that giving the chief of police more money to hire officers reorganizes his department. By that logic, giving him one more police officer reorganizes his department and that happens all the time without the Mayor getting involved.

Our response is as follows in legalese:



Civil Action No. 06-3549-A




Plaintiffs )


v. )



Defendants )




The Defendants have moved to dismiss this matter pursuant to M.R.C.P. 12(b)(1) and 12(b)(6) claiming that the Plaintiffs have no standing to enforce an ordinance enacted by the City of Boston [CBC § 11-1.6][1] and because the ordinance was never “affirmatively approved” by the mayor, Defendants claim it was never validly enacted.


The Plaintiffs do not dispute the Defendants’ recitation of the facts as set forth in the Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss (hereinafter “Defendants’ Memorandum”) so far as they go. What the Defendants fail to admit and the only fact that the Plaintiffs claim is in dispute is alleged in ¶ 9. of Plaintiffs’ Complaint: “The City of Boston is experiencing a significant increase in crime.”[2] At this stage of the litigation, the Court must accept the Plaintiffs’ allegation of this fact as true.[3]


The Defendants claim that this Court should dismiss the Plaintiffs’ Complaint because (1) the Court lacks subject matter jurisdiction; (2) the Plaintiffs have failed to state a claim for which relief may be granted; (3) the Plaintiffs lack standing to bring their lawsuit; (4) the Plaintiffs brought their complaint too late, and (5) the City Ordinance which Plaintiffs seek to have the Court enforce is invalid. Plaintiffs argue that all of the Defendants’ arguments are all legally incorrect and amount to nothing more than a smoke screen to hide the Defendants’ contempt for Part 1, Article X of the Massachusetts Constitution: “Each individual of society has a right to be protected by it in the employment of his life, liberty and property, according to standing laws.” (emphasis added).

1. The Superior Court has subject matter jurisdiction

Plaintiffs claim that this matter is one seeking a Writ of Mandamus for which this Court has original jurisdiction under Mass. G.L. c. 249, §5.[4] While the original Complaint does not cite this particular statute, the nature of the action, i.e. compelling public officials to perform acts they are required to perform, is a classic case of Plaintiffs seeking redress by what was formerly known as the Writ of Mandamus. Indeed if one examines the case cited by the Defendants, Kaplan v. Bowker, 333 Mass. 455 (1956), but instead of reading only to page 459, simply turn to page 60 where the Supreme Judicial Court distinguishes cases where only a party injured can bring proceedings to determine the validity of a statute and goes on as follows:

This is the principle that where a public officer owes a specific duty to the public to perform some act or service not due the government as such or to administer some law for the public benefit which he is refusing or failing to perform or administer any member of the public may compel by mandamus the performance of the duty required by law.

Kaplan v. Bowker, 333 Mass. at 460.

Thereafter the Court cites Brewster v. Sherman, 195 Mass. 222 along with a long litany of other Supreme Judicial Court cases in support of this proposition. However, Brewster v. Sherman, id., is particularly relevant to the case at bar. There the dispute involved a hotly contested ballot question in the Town of Plymouth where the registrars of voters counted a contested ballot and a voter and taxpayer brought suit to challenge the decision of those registrars of voters. The Supreme Judicial Court adopted the general doctrine as stated in a treatise High, Ex. Leg. Rem. (3d ed.) § 431 as follows:

When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.

Brewster v. Sherman, 195 Mass. at 224.

In the present case the Plaintiffs are citizens and taxpayers of the City of Boston. There is an ordinance that they seek to have enforced. The Defendants have flatly refused to enforce the ordinance, therefore Plaintiffs have the right to secure for the public benefit the Court’s issuance of a Court Order in the nature of a Writ of Mandamus. This Court has jurisdiction.

Within Defendants’ Memorandum, the Defendants use as part of their defense of the Motion to Dismiss one Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D. In Baxter, one of the primary disputes was the validity, or lack thereof, of a city ordinance that was passed by the City Council of Boston without the support of the Mayor. It was brought in the Superior Court of Massachusetts as No. 91-2041D. The Superior Court of Massachusetts demonstrated having jurisdiction over the subject matter when it decided that the city ordinance relevant to Baxter was invalidly enacted. Similarly, the central item of this case is whether or not CBC § 11-1.6 was properly enacted into law sixteen days after it was passed by the City Council on January 31, 1979 pursuant to St. 1951, c. 376, § 17D. Since the Superior Court of Massachusetts has demonstrated jurisdiction over the subject matter of the validity of a city ordinance, Defendants’ motion to dismiss should be denied.

2. The Plaintiffs have stated a claim for which relief may be granted

The Defendants have set up a series of straw men which they then legally lambaste because the Plaintiffs do not meet the standards applicable to such straw figures. Defendants first claim that the Plaintiffs do not have standing for a Declaratory Judgment pursuant to Mass. G.L. c. 231A. Plaintiffs are not seeking a Declaratory Judgment and nowhere in Plaintiffs’ pleadings do they suggest as much. While indeed there must be an independent basis for jurisdiction in order to obtain a Declaratory Judgment, that independent basis has been set forth above in Part 1. of the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (hereinafter “Plaintiffs’ Memorandum”).

The next straw man is the Defendants’ claim that the Plaintiffs do not meet the requirements of the Ten-Taxpayer Statute, Mass. G.L.c. 40, § 53. However, once again the Plaintiffs are not seeking relief under the Ten-Taxpayer Statute. At no point in the Plaintiffs’ pleadings is there any attempt to invoke a statute which is designed to prevent the City from raising or spending money in the “unlawful exercise or abuse of such corporate power.” G.L. c. 40, § 53. In fact this suit is quite the opposite. Plaintiffs claim that there is an ordinance which sets the minimum level of police protection which the City must maintain. Plaintiffs simply want the Defendants to do what the ordinance requires. The Plaintiffs have stated a claim. They should not be denied their legal right to seek this important public benefit. As such, Defendants’ motion to dismiss should be denied.

3. The Plaintiffs have standing to bring this lawsuit

For the reasons set forth above in paragraph 1 of the Plaintiffs’ Memorandum, the Plaintiffs are absolutely entitled to bring this lawsuit. They are all residents of the City of Boston. Nothing more is required. However, in addition to being residents, the Plaintiffs also claim that they have suffered harm due to the Defendants’ steadfast refusal to comply with the City’s Ordinance. Attached hereto are affidavits of some of the Plaintiffs which demonstrate in graphic, non-legalistic jargon what they have seen, what they have heard and what they have felt, due to the Defendants’ actions. The Court should have no doubt that these Plaintiffs have standing to petition the Defendants into a Court of Law and demand that the Defendants meet the requirements of the City’s Ordinance. If the Plaintiffs are successful in this lawsuit, an order in lieu of a Writ of Mandamus is warranted and the beneficiaries will be all citizens, including the Plaintiffs, who are residents of the City of Boston. As such, Defendants’ motion to dismiss should be denied.

4. The Plaintiffs brought their complaint too late

The Defendants assert that “the Plaintiffs brought their suit too late.” This statement demonstrates that the Defendants believe that the relationship between the City of Boston and the Police Department of the City of Boston is comparable to the relationship between the City of Boston and a general contractor doing work similar to road repair, with a definable beginning, middle and end. The Defendants use Dealty v. Selectmen of Watertown to demonstrate this point. See 279 Mass. 22,27 (1932). The first day of Fiscal Year 2007 was Thursday, July 1, 2007, but the budget for Fiscal Year 2007 was not approved by the Boston City Council until Wednesday afternoon, June 28, 2006 and signed by the Mayor on June 30, 2006. If the proposition of the Defendants is to be believed, then the window of opportunity to bring any complaint pursuant to G.L. c. 40, § 53 (or any other G.L. that requires the complaint be filed prior to any expenditure) would have been less than the 8 hours on Friday, June 30, 2006, assuming of course, that the Police Department was in operation on July 1, 2006 and therefore drawing funds from the newly passed budget. This places an impossible burden on any plaintiff for any claim against the City of Boston. As such, Defendants’ motion to dismiss should be denied.

5. The City’s Ordinance is a valid Ordinance

Notwithstanding the Defendants’ protestations to the contrary, the Plaintiffs’ assert that CBC §11-1.6 is a valid ordinance in the City of Boston. The Defendants have an obligation to comply with it, which they have repeatedly failed to do. The City of Boston garners their power for rule from the citizens and they must rule in accordance with the laws of the Commonwealth and the City of Boston.

Defendants admit that the Ordinance, what is now CBC §11-1.6 was approved by the City Council and presented to the Mayor of the City of Boston. They further admit that the Mayor neither approved or signed it; nor did the Mayor disapprove it and return it to the City Council with his objections. Under these circumstances, as required by Acts, 1951 – Chapter 376, “Every … ordinance … required by this section to be presented to the mayor which, within fifteen days after such presentation, is neither signed by him nor filed with his written objections as hereinbefore provided , shall be in force on and after the sixteenth day following such presentation.”

The Defendants contend that CBC §11-1.6 amounted to a “reorganization of the Boston Police Department” and therefore subject to Acts, 1953, c. 473, Section 1.[5] The Defendants are mistaken on this point, because CBC § 11-1.6 fails to meet any of the seven (7) conditions under which the City Council may act “with the approval of the Mayor”. Six (6) of the seven (7) conditions of Section 5 of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) are easily dismissed. They state the follows:

(a) to create a new department or agency; Plaintiffs assert that CBC § 11-1.6 does not create a new Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (a).

(b) to abolish, in whole or in part, any department or agency; Plaintiffs assert that CBC § 11-1.6 does not abolish, in whole or in part, the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (b).

(d) to confer or impose on any department or agency any power or duty of the city not appertaining at the time of the making of the bylaw or ordinance of any department or agency; Plaintiffs assert that CBC § 11-1.6 does not confer or impose on the Police Department any power or duty simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (d).

(e) to transfer any or all of the powers, duties and appropriations of any division of any department or agency to another division of the same department or agency: Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of the Police Department to another division of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (e).

(f) to transfer any or all of the powers, duties and appropriations of any department or division thereof or any agency or division thereof either to another department or division thereof or to another agency or division thereof; Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of any division or agency not including the Police Department to the Police Department, nor does it transfer any or all of the powers, duties and appropriates of the Police Department away to another division or agency outside of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (f).

(g) to increase, reduce, establish or abolish the salary of any department or department head. Plaintiffs assert that CBC § 11-1.6 does not increase, reduce, establish or abolish the salary of any department within the Police Department nor any department head within the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (g).

Subsection 5(c) of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) states the only remaining condition under which the City Council must require the approval of the Mayor:

(c) to reorganize, in whole or in part, any department or department head or any agency or agency head;

The Defendants are mistaken when they state that CBC § 11-1.6 reorganizes, in whole or in part, the Police Force of the Police Department, because the Defendants assume that the word “reorganize” can be taken to mean any action which in any way, shape or form has any impact on “any department or department head or any agency or agency head”. If the word “reorganize” is taken in this extremely broad definition, it can easily be interpreted to mean that the City Council is powerless to pass any City Ordinance that will have any impact, no matter how slight or tangential, on any department or agency within the City of Boston without the approval of the Mayor.

Unfortunately, the Boston City Charter is silent on a definition for the word “reorganize” and “reorganization”, so we need to look elsewhere. The American Heritage Dictionary (Second Edition) provides two definitions of the word “reorganization”:

1. reorganization - the act of imposing a new organization; organizing differently (often involving extensive and drastic changes)

2. reorganization - an extensive alteration of the structure of a corporation or government

Simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not impose a new organization, as it does not specify the manner in which the police officers will be assigned within the Police Force of the Police Department, to which Stations or Task Forces or any other department within the Police Department. Neither does it organize differently the billets or posting of the police officers. The Police Commissioner retains the power and authority of the assignment of each and every police officer within the Police Department. Further, simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not reflect either extensive or drastic changes, nor does it represent an extensive alteration of the structure of the Police Force within the Police Department or the Police Department itself.

As stated previously, the Boston City Charter is silent on a definition for the word “reorganize”, however, the Boston City Charter does not exist in a vacuum. Its power derives from the Massachusetts General Laws, the Massachusetts General Court and the Constitution of the Commonwealth of Massachusetts. It is highly unlikely that the framers of the Constitution of the Commonwealth of Massachusetts and the Massachusetts General Laws would use an arbitrary word in this way without providing a definition or relying on the universal nature of the word which it employs throughout the Massachusetts General Laws. Within the Massachusetts General Laws, there are thirty (30) chapters which use the words “Reorganize” or “Reorganization”. A complete list of those chapters appears as attachment 2. These thirty (30) chapters fall into several sections relating to Government, Taxes, Corporations, Property and Wills. Most assume that the definition of “Reorganization” is simple enough that a definition is not provided. The word often appears in connection with financial reorganization due to bankruptcy of a corporation, where it is often used in conjunction with the creation of corporations, abolishment of corporations, mergers of corporations into a single entity, bankruptcy, changing the purpose/mission of a corporation, and conversion of corporations from one type to another. For example, a mutual banking institution that is a savings bank may reorganize so as to become a mutual holding company. See M.G.L. c. 167h, § 2.

One Chapter, M.G.L. c. 63, § 22D - Taxation of Corporations, does provide a reference to the Federal Internal Revenue Code, Section 368 which is instructive as to the scope of the “Reorganization.

M.G.L. c. 63, § 22D: For purposes of this section, a “qualifying domestic life insurance company” is a company which, after December thirty-first, nineteen hundred and fifty-eight and before December thirty-first, nineteen hundred and seventy-six, was a party to a reorganization, as defined in section 368 of the Federal Internal Revenue Code and in effect for the taxable year of the reorganization, with another domestic insurance company which was not a life insurance company, as defined by subsection (a) of section 801 of the Federal Internal Revenue Code in effect for the taxable year of the reorganization.

A complete copy text of the Federal Internal Revenue Code, Section 368 is provided as attachment 3. The following conditions would indicate that an insurance corporation in the Commonwealth of Massachusetts is a party to a reorganization; (A) a statutory merger or consolidation; (B) the acquisition by one corporation […] [of ] control of such other corporation […]; (C) the acquisition by one corporation […] of substantially all of the properties of another corporation […]; (D) a transfer by a corporation of all or a part of its assets […]; (E) a recapitalization; (F) a mere change in identity, form, or place of organization of one corporation, however effected; or (G) a transfer by a corporation of all or part of its assets to another corporation in a title 11 or similar case […].

Sections (A), (B), (C) and (D) of the Federal Internal Revenue Code, Section 368 are consistent with various portions of Section 5 of Chapter 452 of the Acts of 1948, previous discussed. Neither section (E) or (G) are relevant to this point as CBC § 11-1.6 does not address either the capitalization or the financial bankruptcy of the Police Department. Finally, CBC § 11-1.6 does not change the identity, form or place of the Police Department simply by increasing and then setting a minimum staffing level.

Finally, attachment (4) shows the organization chart of the Police Department, taken from the Fiscal Year 2007 Budget. Plaintiffs assert that, if CBC § 11-1.6 were applied as written, there is no single line or rectangle on this organization chart that would be added, remove or moved, thus dismissing any notion of “reorganization”.

Based on the Plaintiffs’ review of the Federal and Commonwealth definitions and uses of the words “reorganize” and “reorganization”, Plaintiffs assert that the use of the word means the collective actions of creating, abolishing, and merging of departments, changing the purpose and/or mission of the department or agency, changes which in the corporate world would require the filing of a new or amended Articles of Incorporation and would require a significant overhaul of the organization structure of a department or agency and its associated budgets. It is not, as the Defendants would have us believe, any action which has any impact, no matter how slight, on a department or agency. As such, Defendants’ motion to dismiss should be denied.

Plaintiffs’ assert that the ordinance does not interfere with the Police Commissioner’s authority to “appoint, establish and organize the police of [Boston]” or restrict the Police Commissioner’s “cognizance and control of the government, administration, disposition and discipline of the department….” as stated within Defendants’ Memorandum. See St. 1906, c. 291, §§ 10, 11 as amended by St. 1962, c 322, §§ 10, 11; City Council of Boston, 58 Mass. App. Ct. at 545. The ordinance simply gives the Police Commissioner a minimum amount of manpower to protect the citizens of the City of Boston. The Plaintiffs contend that there are not enough police officers for the Police Commissioner to organize and control and that the net effect of the City’s refusal to abide by CBC § 11-1.6 has nothing to do with the deployment or use of that manpower.

When the Defendants claim that CBC § 11-1.6 “interferes with the management of a city department in the same way that an ordinance interfered with the management of the corporation counsel’s office in City Council of Boston v. Mayor of Boston, 58 Mass. App. Ct. 542 (2003), the Defendants are mistaken. This is another case of apples and oranges. In that case, the City Council of Boston did not simply create an ordinance which would have increase the staff of the Corporation Council’s Office, any of which could have been made available to the City Council as needed. The City Council of Boston attempted to create a position of legal council to the City Council. The position of legal council to the City Council could be viewed as a department (and department head) unto itself (with an associated transfer of power), in violation of Section 5(a) and 5(f) of the Boston City Charter, or it could be viewed as the creation of a new division within the Corporation Council’s Office (with an associated transfer of power), in violation of Section 5(e). Either way, while we agree with the Defendants that the creation of the position of legal council to the City Council would require the “approval of the Mayor” under Section 5 of the Boston City Charter, CBC § 11-1.6 does not either create a new department or a new division and it does not transfer power. As such, it does not speak to the current case.

According to Defendants, “The Massachusetts Appeals Court has determined in City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) that these types of ordinances can only be adopted with the joint approval of the Mayor and the City Council, and thus the fifteen day approval process pursuant to St. 1951, c.376, § 17D does not apply to these. See City Council of Boston, 24 Mass. App. Ct. at 669. Although we agree with the Defendants that “these types of ordinances” comply with Section 5 of the Boston City Charter, we do not agree that CBC § 11-1.6 is one of “these types of ordinances”. Once again, this is a case of apples and oranges. The City Council of Boston had passed ordinances attempting to abolish the Inspectional Services Department in violation of Section 5(b) of the Boston City Charter, and establish a new Building Department (in violation of Section 5(a) of the Boston City Charter) as well as establishing a Commission of Women in the Mayor’s office (in violation of Section 5(a) of the Boston City Charter). CBC § 11-1.6 does not create nor does it abolish any department within the Police Department, and so City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) has no relevance in this case. City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987).

Additionally, the Defendants provide another example of one of “these types of ordinances” when it cites Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D. Once again, this is a case of apples and oranges. The City Council passed an ordinance giving the City Council and the Mayor control over the closure of hospitals controlled by the City Department of Health and Hospitals. If each hospital within the system controlled by the City Department of Health and Hospitals were to be viewed as either a department or a division of the City Department of Health and Hospitals, then the director of each hospital can be further viewed as department head. It becomes obvious that the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D violates Section 5(b) of the Boston City Charter because it had the potential to abolish a hospital, violates Section 5(e) of the Boston City Charter because it had the potential to transfer power, duties and appropriations of the abolished hospital to whichever hospital took control of the patients and potentially violates Section 5(g) of the Boston City Charter if the director of the abolished hospital were not transferred to an equal or greater role within the City of Boston. CBC § 11-1.6 does not abolish, in whole or in part, any department within the Police Department, nor does it transfer power, duties or appropriations, nor does it affect the salary of any department head within the Police Department. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D has no relevance in this case. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D.

In all of those cases, the Court found that there was either establishment of a new position (i.e. legal counsel to the City Council) or substantial interference with a City agency (i.e. Inspectional Services Department or Department of Health and Hospitals). In the current case there is no such interference with the internal operation of the Police Department. Plaintiffs intend to call as witnesses, experts and high ranking police officers who will testify that the Police Department is woefully undermanned and that the additional police officers will not amount to the virtual “headache” to the Police Commissioner as the Defendants contend.

The Defendants’ argument that they alone can determine the validity of CBC § 11-1.6 simply puts the shoe on the wrong foot. It is up to the City to prove that the Ordinance is invalid, not on the Plaintiffs to show that it is valid. Plaintiffs suggest that Defendants should file, as part of the current civil action, a counter-claim under G.L. c. 231 A seeking a declaratory judgment that CBC § 11-1.6 is invalid, just as the City Council did in the above-cited cases.[6] As such, Defendants’ motion to dismiss should be denied.


For these reasons the Defendants’ Motion to Dismiss should be denied.

Respectfully submitted,

_______________________ ____________________

Kevin McCrea, Pro-Se Dr. Clara Lora

218 West Springfield Street 218 West Springfield Street

Boston, MA 02118 Boston, MA 02118

(617) 267-2453

[1] The Plaintiffs will rely upon the Defendants’ Memorandum (page 2) for reference.

[2] As explained later in this Memorandum, this allegation, however, is neither necessary for the Plaintiffs to prove to be successful in this lawsuit, nor a condition precedent for the remedy Plaintiffs seek from this Court.

[3] The Plaintiffs herewith submit affidavits from Plaintiffs who claim to have suffered harm due to increased criminal activity and insufficient response from the City’s Police Department.

[4] Mass. G.L.c. 249, § 5 provides in part: “A civil action to obtain relief formerly available by writ of mandamus may be brought in the … superior court….”

[5] Acts, 1953, c. 473, Section 1., provides in pertinent part: “The city council with the approval of the mayor may from time to time make … ordinances for … the following purposes:… (c) to reorganize, in whole or in part, any department….”

[6] Plaintiffs make this suggestion without waiving its right to claim that the Defendants failed to make such a pleading in a timely way or that such a claim otherwise run afoul of the Massachusetts Rules of Civil Procedure.