Tuesday, May 23, 2006

Another Open Meeting Lawsuit v. the City Council

Kathleen Devine, Shirley Kressel and I filed another suit against the City Council on Monday. The suit reads as follows. We'd just like government to be transparent. They don't work on national security at City Hall, what is so difficult about allowing the press and public to observe the decision making process. I don't believe cumulative insecurity about speaking in public is the reason.



C.A. No.

Shirley Kressel, Kathleen Devine and Kevin McCrea,



The Boston City Council and its Committee on Government Operations,




1. This is an action brought pursuant to G.L. c. 39, § 23B (the Open Meeting Law) and G.L. c. 231A (the Declaratory Judgment Act) for an order requiring the Boston City Council to carry out the provisions of the Open Meeting Law. Despite the clear language of G.L. c. 39, § 23B; a previous determination of violation by the Suffolk County District Attorney’s Office, and a recent ruling of violation by the Superior Court (See Superior Court Civil Action No. 05-01798, the Defendant Boston City Council (the “Council”) has conducted meetings in violation of the Open Meeting Law. Plaintiffs allege that the City Council Government Operations Committee (the “Committee”), a Committee of the Boston City Council, deliberated and voted without posting public notice and producing public records, and that the City Council, at its following publicly-noticed weekly meeting, conducted a “rubber-stamp” vote based on the Committee vote, without conducting public deliberations. This vote approved an increase in the salaries of the City Council members and of the Mayor of Boston, as well as increases for certain department heads and staff.

  1. Plaintiffs Kressel, Devine and McCrea ask the Court to issue an order requiring the Defendants to carry out all provisions of the Open Meeting Law at all future meetings; make public all records of the subject meetings held in violation of the law and reverse and nullify any votes, recommendations, decisions or actions taken in or as a result of such meetings.

  1. Plaintiffs bring to the Court’s attention the fact that on May 6, 2005, Plaintiffs filed a Complaint against the Boston City Council for violations of the Open Meeting Law in eleven meeting over the course of about two years. On March 27, 2006, the Court (Staffier-Holtz, J.), ruled that the Council had committed all alleged violations, and was guilty of a systematic pattern of behavior of violating the Open Meeting Law. The Findings and Order are attached (Exhibit 1: McCrea et. al. v. Michael J. Flaherty and the Boston City Council, Suffolk Superior Ct No. 05-01798B). Still pending in that case are Plaintiff’s motions for remedies in addition to the Order’s declaratory and injunctive relief and monetary fine, and for costs and expenses due to insubstantial and frivolous claims advanced in bad faith, as stipulated by the Findings and Order.

Jurisdiction and Venue

4. This action is brought under to G.L. c. 39, § 23B (the Open Meeting Law) and G.L. c. 231A (the Declaratory Judgment Act).

5. Venue is appropriate pursuant to G.L. c. 223, § 1 and 9.


6. Plaintiff Shirley Kressel is a registered voter residing in Boston, Massachusetts.

7. Plaintiff Kathleen Devine is a registered voter residing in Boston, Massachusetts.

8. Plaintiff Kevin McCrea is a registered voter residing in Boston, Massachusetts.

9. The Defendant Boston City Council, (whose members are Michael Flaherty, President; Michael Ross, Vice President; James Kelly; Maureen Feeney; John Tobin; Jerry McDermott; Paul Scapicchio; Steve Murphy; Chuck Turner; Charles Yancey; Rob Consalvo; Sam Yoon, and Felix Arroyo); and its Committee on Government Operations, (whose members are Maureen Feeney, Chair; Steve Murphy, Vice Chair; Michael Ross; James Kelly; Chuck Turner; Jerry McDermott and Paul Scapicchio) are governmental bodies within the city of Boston, governed by G.L. c.39 § 23B. This suit is being brought against them in their official capacities. Defendants’ business address is One City Hall Plaza, Boston, MA 02108.


  1. Thomas M. Menino is the Mayor of Boston.

  1. The City of Boston has a Mayorally-appointed, five-member Compensation Advisory Board (the “Board”), which shall meet at least once a year and shall, in each even numbered year, report its recommendations to the Mayor, the City Council and the School Committee by the first Wednesday in March by filing same with the City Clerk. Members of the Compensation Advisory Board are deemed Special Municipal Employees pursuant to CBC Section 5-5.10A.

12. On March 7, 2006, the Compensation Advisory Board submitted a letter to Mayor Menino and to the Boston City Council regarding the Board’s recommendations for salary increases for the Mayor, the City Council, and certain City employees. The letter states, “As we do at least every other year, the Committee has met, reviewed data, and is proposing to the Mayor and the City Council specific recommendations….” “We look forward to presenting our recommendation before a meeting of the appropriate committee of the City Council….” (Exhibit 2).

13. On March 7, at 10:05AM, the City Clerk stamped receipt of a transmittal letter from Mayor Menino, sponsoring and referring to the Boston City Council: Ordinance Amending Salary Categories for Certain Offices; (the “Ordinance”) and: Report from the Compensation Advisory Board (the “Report”). The Mayor’s letter states: “The Compensation Advisory Board has carefully reviewed comparable salaries and other facts affecting such compensation.” (Exhibit 3 Mayor’s package to City Council).

14. The two items referenced above were referred to the Committee on Government Operations by the City Council President during the March 8, 2006, City Council meeting as Docket # 0347 Report from the Compensation Advisory Board, and Docket #0365 Ordinance Amending Salary Categories for Certain Offices. (Exhibit 4 Referral).

15. On April 18, 2006, a Notice of Public Hearing of the Boston City Council’s Committee on Government Operations was posted with the City Clerk for a public hearing to be held on Friday, April 21, 2006, at 11AM. (Exhibit 5 Notice)

16. On April 19, 2006, Plaintiff Kressel, by telephone, asked Lawrence DiCara, Esq., the Chair of the Compensation Advisory Board, if the Board meetings had been public, and requested a copy of the comparative study of other municipalities’ pay scales which had been conducted by the Board and used as the basis of its recommendations for Boston salary increases.

17. Mr. DiCara stated that the Compensation Advisory Board meetings were public and had been duly posted with the City Clerk. Mr. DiCara refused to disclose the study to Plaintiff Kressel, claiming that although the Board meetings were public meetings, the study was only “working papers” and did not have to be disclosed.

18. Mr. DiCara assured Plaintiff Kressel that he would present all the information at the public hearing scheduled for April 21, 2006 and would answer all questions posed by the City Council at that hearing.

19. On April 21, 2006, at approximately 10:30AM, the public hearing of the City Council’s Committee on Government Operations was cancelled. No public notice was given for the cancellation. No reason was publicly stated by the Council for the cancellation. However, on May 6, 2006, a Boston Globe Editorial (Exhibit 6a “No Stealth Pay Hikes”) quotes Committee Chair Councilor Maureen Feeney:

“There was much confusion among the councilors on Friday, April 21, that led to Councilor Maureen Feeney’s proposal to cancel the scheduled public hearing on the pay raises proposed by the City’s five-member Compensation Advisory Board. At issue, says Feeney, was whether the meeting should proceed because of the concerns that the Advisory Board’s Chair, attorney Larry DiCara, was representing a client seeking city land for a development project.”

20. On April 22, 2006, the Boston Globe published a story on possible conflicts of interest and ethics violations regarding the Compensation Advisory Board and the City Council vote on pay raises. (Exhibit 6b “Land swap proposal for clinic is criticized”).

21. On May 3 and on May 9, 2006, Plaintiff Kressel went to the Office of the City Clerk and requested copies of the meeting notices and minutes of the Compensation Advisory Board meetings, and copies of the comparative municipal pay study (the “study”). The Assistant City Clerk stated that the meetings of the Board are not public meetings, and that no meeting notices or minutes are filed.

22. To date, upon information and belief, no member of the public or press (Exhibit 6c “Pay raises eyed for mayor, councilors”) has been permitted to see the comparative municipal pay study on which the Compensation Advisory Board report was said to be based. The study has been withheld from the public and the press although no exemption has been cited to establish that the document is not a “public record” as defined under G.L. c.66 §5A,10,15,17C. The burden to show that a document is not a “public record” within the meaning of the Open Meeting Law and the Public Records Law is on the custodian of the record to prove with specificity that an exemption applies.[1]

23. On May 2, 2006, Councilor Maureen Feeney, Chair of the Committee on Government Operations, submitted to all City Councilors a Committee Report in advance of the scheduled Wednesday, May 3, City Council public meeting. (Exhibit 7 Committee Report).

24. The Committee report for Docket # 0347: Ordinance Amending Salary Categories for Certain Offices, states, “…that the Committee…based on information gathered by the Committee and having considered the same, respectfully recommends that this matter ought to pass in a new draft. (Emphasis supplied).

25. The Committee report further states, for Docket # 0365: Report of the Compensation Advisory Board, “…based on information gathered by the Committee and having considered same, respectfully recommends that this matter ought to be placed on file.”

26. The Boston City Council’s Committee on Government Operations has seven (7) members as stated above. The Committee report states: “Councillors (sic) Kelly, McDermott, Murphy and Ross concurring,” that is, concurring with the Chair of the Committee. Therefore, according to this Committee report, at least five (5) of the seven (7) members considered the Compensation Advisory Board’s report and drafted amendments and modifications to it, and five (5) voted to recommend that the Ordinance ought to pass with those amendments and modifications.

27. The deliberations concerning the Ordinance and the amendments and modifications, and the votes stated in the Committee report, were not conducted at any publicly noticed meeting or hearing in accordance with the Open Meeting Law.

28. At the May 3, 2006, City Council meeting, Docket # 0347: Ordinance Amending Salary Categories for Certain Offices, was brought to the floor with a brief statement of endorsement by Committee Chair Councilor Feeney. Council President Michael Flaherty immediately moved for acceptance of the Committee report and passage of Docket # 0347 “…in a new…” (Exhibit 8 Transcript)

29. Councilor Turner, a Committee member, stood to speak in opposition to the Ordinance. (Exhibit 8 Transcript).

30. Councilor Turner cited the issue of possible conflict of interest: “…the spirit of conflict of interest certainly is not being respected given the role that Mr. DiCara plays in terms of lobbying the City Council and the City …” (Exhibit 9 – Lobbying Letter).

31. Councilor Turner further stated that since the public hearing on the Ordinance had not been re-scheduled, and since the pay raise was a contentious issue (Exhibit 6a-h Media Releases) “…at the very least, the public should have a right to comment and give their perspective.”

32. Councilor Yoon stood to say he would vote for the Ordinance in that it “appears to be good public policy” and further stating: “Leaving again the appearance of conflict of interest aside, and I think our duty to be transparent in all our deliberations,…I’m just kind of stating for the record what my intention was in terms of the vote today.” (Exhibit 8 Transcript).

33. None of the “concurring Councillors (sic)” serving on the Committee made any statement at the Council meeting. No other Councilors spoke either in support or in opposition.

34. During the City Council meeting’s discussion on Docket #0347, no comparative municipal pay study[2], salary information, or other information from the Compensation Advisory Board or the Committee was deliberated upon by the Council.

35. There was no deliberation or discussion regarding the Compensation Advisory Board’s report and comparative municipal pay study, nor regarding the Committee’s amendments and modifications, at any duly noticed public hearing or meeting of the City Council, whereby the public could understand the reasons for the Council’s vote.

36. The Ordinance, in a new draft, passed within six minutes of introduction, on a voice vote, without a roll call vote. (Exhibit 8 Transcript).

37. Councilors Turner and Arroyo later asked to be recorded as voting against Docket #0347.


The Boston City Council Committee on Government Operations Violated the Open Meeting Law by Failing to Conduct Its Deliberations at Duly Posted Meetings and by Failing to Maintain and Make Public the Records of Its Meetings

38. Plaintiffs reassert and re-allege all of the allegations contained in paragraphs 1-37 above, as if fully set forth herein.

39. The Open Meeting Law applies to all “governmental bodies,” including “every board, committee or subcommittee of any district, city, region or town, however elected, appointed or otherwise constituted.” G.L. c.39 § 23A.

40. Where members of a “governmental body” meet to discuss public business in private, even where members do not intend to vote on, or make a final decision on issues, this action constitutes a “meeting” under the Open Meeting Law. Thus, if there is a simple “exchange of views” by a simple majority of the members of a governmental body on a public issue, then the governmental body must comply with the requirements of the Open Meeting Law.[3]

41. The Open Meeting Law provides: “ In the hearing of …complaints the burden of proof shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by section 11A 1/3 of Chapter 30A, by section 9G of Chapter 34 or by this section.”

42. Upon information and belief, the Chair of the Council’s Committee on Government Operations did not convene a formal meeting of the Committee, but contacted individual committee members to deliberate towards, and arrive at, a decision on the proposed Ordinance and amendments and modifications to the Ordinance.

43. According to “OPEN MEETING LAW GUIDELINES” published by the Commonwealth of Massachusetts Office of Attorney General Tom Reilly:

“Telephone meetings” – discussion by telephone among members of a governmental body on an issue of public business within the jurisdiction of the body – are a violation of the Law. This is true even when individual telephone conversations occur in serial fashion.14

“Revolving door” meetings in which a quorum of members participate in serial fashion, are meetings under the Open Meeting Law and must comply with all the Law’s requirements.15

With the advent of computers, it has become more common for persons, both at home and at work, to communicate through electronic mail, or “e-mail.” Like private conversations held in person or over the telephone, e-mail conversations among a quorum of members of a governmental body that relate to public business violate the Open Meeting Law, as the public is deprived of the opportunity to attend and monitor the e-mail “meeting.” Thus it is a violation to e-mail to a quorum messages that can be considered invitations to reply in any medium, and would amount to deliberation on business that must occur only at proper meetings. It is not a violation to use email to distribute materials, correspondence, agendas or reports so that committee members can prepare individually for upcoming meetings.”

14 See Harshbarger v. Board of Selectmen of Lexington. No. 88-3644 (Middlesex Superior Ct. August 18, 1989) (Order granting summary judgment).

15 See Shannon v. Boston City Council. No. 87-5397 (Suffolk Superior Ct. February 28, 1989) (Memorandum and order granting summary judgment).

44. This Court has ruled that serial deliberations violate the Open Meeting Law. (Exhibit 1: Decision on Defendant’s Motion to Dismiss, McCrea et.al. v. Michael J. Flaherty and the Boston City Council, C.A. No. 05-01798).

45. The Council’s Committee Report reflects that the Committee did Committee work: deliberating on information; modifying and amending the proposed Ordinance, and coming to a decision, without allowing public witness. (Exhibit 7 Committee Report).

46. These deliberations on the Ordinance without convening a duly noticed public meeting, and instead by the Chair deliberating with committee members in a serial fashion outside of public view, violated the Open Meeting Law.


The Boston City Council Violated the Open Meeting Law by Failing To Conduct Its Deliberations in Public

47. Plaintiffs re-assert and re-allege all of the allegations contained in Paragraphs 1-46 above as if fully set forth herein.

48. The City Council’s subsequent action of rubber-stamping approval in public of the Committee’s vote cannot “cure” the violation.[4] In both the recently adjudicated case brought by the Plaintiffs against the Boston City Council (Exhibit 1), and in the above cited case Shannon v. Boston City Council, this Court ruled that governmental bodies may not conduct deliberations privately and then use a subsequent public meeting to “cure” a violation. The public meeting must provide the deliberative forum that the private meeting did not, in order for the “cure to take place.” In the Findings and Order in McCrea, et.al. v. Michael J. Flaherty and the Boston City Council (Exhibit 1) this Court (Staffier-Holtz, J.) stated:

“Certainly, neither the Legislature, nor the Supreme Judicial Court intended to

allow governmental bodies to circumvent the requirements of the Open Meeting

Law simply by “curing” prior violations by holding a public meeting in which the

formal vote is held.23 Adopting that construction of the statute would allow all

governmental bodies to conduct all discussions leading up to a public vote in

secret. As this Court discussed, supra, relating to whether or not “deliberations”

actually occurred, there is no dispute but that the formal public meeting was a

mere announcement of the results of many, many discussions held outside the

public’s view.”

23 This Court’s order (Kottmyer, J.) denying

Defendants Motion to Dismiss, noted that Benevolent and Protective Order of

Elks “does not suggest that a governmental body can systematically ignore the

requirements of the act in connection with meetings at which decisions are made

on a particular subject matter and “cure” the violation by submitting and voting

on that measure at public meetings.” (Memorandum of Decision and Order on

Defendants’ Motion to Dismiss. McCrea et.al. v. Michael J. Flaherty and the

Boston City Council, C.A. 05-01798B).

49. At the City Council meeting on May 3, 2006, no information from the Compensation Advisory Board was introduced, considered or deliberated upon; no deliberation took place regarding the Committee’s recommendations; neither was there any discussion nor deliberation of the reasons underlying the Committee’s amendments and modifications to the original Ordinance.

50. There was no public discussion of the issues raised by both Councilor Turner and by the Boston Globe; the public was not able to see the basis for the Councilors’ approval vote, nor for the claim of Councilor Yoon that the passage of the amended and modified Ordinance was “good public policy.”[5]

51. Committee Chair Maureen Feeney is quoted in the Boston Herald (Exhibit 6d “City Councilors OK Own Pay Raise” O’Ryan Johnson, May 4, 2006), that no Committee report was needed for all the Council to vote this Ordinance. The Committee Report states:

“This Committee is confronted by the imminent expiration of the sixty-day period delineated by the provisions of the City Charter found in Acts of 1948, Chapter 452, Section 17E, as amended by Acts of 1951, Chapter 376, Section 1. Without action by the Boston City Council, this Ordinance will be in force as if adopted by the City Council.”

However, the Committee did not simply approve the original Ordinance as submitted to them, but recommended that it ought to pass “in a new draft,” with the Committee’s recommended changes. The Ordinance, as amended, could not have been adopted per the Charter provision without specific Committee and Council action.

52. The Council, acting in full or through its committees, cannot decide that meetings may be private if they were not meetings required by law. Although many, if not most, of the City Council’s dockets do not legally require a hearing or meeting, when the Council does hold a hearing or meeting, the Open Meeting Law applies. It applies no less to discretionary meetings (other than chance social encounters) than to legally required meetings.


WHEREFORE, the Plaintiffs respectfully request that this Honorable Court:

53. Issue an Order of Notice pursuant to G.L. 39 § 23B requiring Defendants to appear at a hearing to be held within ten (10) days of the filing of this Complaint, or on such expeditious date as the Court shall fix, said hearing to be on the relief requested below;

54. Adjudge and declare that the Boston City Council and its Committee on Government Operations violated the Open Meeting Law by failing to conduct deliberations at duly posted public meeting.

55. Order the Defendants to make available to the Plaintiffs and the public at large, any and all records of the Compensation Advisory Board meetings and any studies, reports or other “working papers”, together with any and all records of the Committee on Government Operations and any other Council meetings and deliberations concerning the Ordinance, including, but not limited to, drafts of proposed changes to the Ordinance; emails; telephone messages and memoranda.

56. Adjudge and declare that the Compensation Advisory Board of the City of Boston is a “governmental body” as defined in the Open Meeting Law.

57. Order that the Defendant Boston City Council forthwith convene an “Open Meeting Law Task Force” to be comprised of five members, including the three Plaintiffs; one member from a group such as “Common Cause” and one to be appointed by the City Council. The Task Force will be charged with the responsibility of drafting an ordinance for the City of Boston similar to the Sunshine Ordinance of the City of San Francisco. (Exhibit 10).

58. Invalidate the May 3, 2006, City Council vote approving the amended Ordinance as it applies to the pay raises for the City Council and the Mayor, who would be sponsor and a signatory to an invalidly enacted ordinance. Plaintiffs suggest for the Court’s consideration that no salary changes be reversed for other City employees, who are not at fault.

59. Order that, if the Defendants, by any action, delay the ten-day, or expedited, hearing, and if they are ultimately found to be in violation of the Open Meeting Law, they be required to refund to the City Treasury any salary increase received to the day of judgment. Plaintiffs suggest that this apply only to the Mayor and the City Council members who are party to the unlawful action.

60. Order that any further violation of the Open Meeting Law by the Defendants will result in the Defendants being held in contempt of court.

61. Order fines and civil damages for the costs incurred in bringing this action.

62. Grant such other relief as the Court finds just and proper.

Dated this 22nd day of May, 2006

Respectfully submitted by,

Plaintiffs, pro se:

Shirley Kressel, 27 Hereford Street, Boston, MA 02116

(617) 421-0835


Kathleen Devine, 49 Symphony Road #33, Boston, MA 02115 (617) 536-5186


Kevin McCrea, 218 West Springfield Street, Boston, MA 02118

(617) 267- 2453

[1] Attorney General v. School Committee of Northampton, 375 N.E.2d 1188, 375 Mass. 127

[2] Boston Globe May 4, 2006, “Council OK’s big raises for itself, mayor” “DiCara said yesterday he recommended the raises after analyzing the pay of elected and appointed officials in comparable cities. The council never saw DiCara’s analysis or any other documentation showing that Boston officials are underpaid, councilors said.”

[3] Gerstein v. Superintendent Search Screening Committee, 405 Mass.465 (1989); District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 529 (1985)

[4] In Benevolent and Protective Order of Elks, Lodge No.65 v. City Council of Lawrence. 403 Mass 563, 566 (1988). The Supreme Judicial Court deemed subsequent public meetings sufficient to ensure public access to the deliberative process of the Council, thereby curing the violation caused by private conversations. Since the May 3, 2006, Boston City Council meeting, like the public meeting in the Plaintiffs’ recently adjudicated case, “did not present to the public a review of the lengthy deliberative process, it is not sufficient to cure the prior violations.” (From McCrea et.al. v. Michael Flaherty and the Boston City Council, Suffolk Superior Ct. C.A. No. 05-01798, Findings and Order dated March 27, 2006, page 16)

[5] This Complaint does not take issue with the propriety of the pay raises voted, but rather with the process of the decision making, which did not provide an opportunity for the public to view the deliberative process.

No comments: