Saturday, November 29, 2008

Motion for Contempt against Boston City Council

For those loyal blog readers (who I appreciate very much) without much to read this holiday weekend, I am posting a copy of my complaint filed in November against the Boston City Council for further violations of the Open Meeting Law.

The nuts and bolts of this is as follows: I discovered the City Council had posted to be what I believed to be an illegal posting on the City Bulletin Board. Because, I am tired of all this litigation and wish the council would just obey the law. I called up President Feeney's office over a period of months and asked them to take it down. They refused and said it wasn't their problem. I also contacted Councilor Yoon and Tobin, also to no avail. I also became aware that the City Council met in Executive session about the Open Meeting Lawsuit currently pending from the Councils attorney. When I looked online, the Council minutes didn't reflect an executive session. I checked with the assistant clerk who assured me the minutes were correct and he told me that they rarely go into executive session and that it is always noted. You would think with a City Clerk getting paid about 100K a year, an assistant clerk and a stenographer at the City Council meetings they could record an executive session, but apparently that is "beyond their pay grade."

I filed the complaint, and the City has responded by: admitting they did go into executive session and they just forgot to note it, and by taking down the posting that I had asked them for months to take down. Pretty sad that you have to take the Council to court to eliminate an illegal posting. I would say that their taking down the posting is essentially an admission of guilt. Again.

We are waiting for the Court to decide the next course of action. Here is the complaint:


COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS SUPERIOR COURT
C.A. No. 08-

)
Kevin McCrea )
Plaintiff )
v. )
)
The Boston City Council )
)
Defendants. )

CIVIL CONTEMPT PROCEEDING
MOTION FOR CONTEMPT


1) On February 10, 1988 the Boston City Council, entered into a Consent to Entry of Final Judgment in the Open Meeting Law case of James Shannon v. Boston City Council, Suffolk Superior Court No. 87-5397.
2) The Consent reads:
“The Defendants, Boston City Council and City Councillors….admit the continuing jurisdiction of the Suffolk Superior Court as to the personal and subject matter jurisdiction of this action and hereby consent to the entry of Final Judgment in the form attached hereto.
In so consenting the Defendants have read and understand each of the numbered paragraphs in the Complaint and the Judgment. The Defendants admit the facts described in the Complaint. The Defendants waive the entry of findings of fact and conclusions of law pursuant to Rule 52 of the Massachusetts Rules of Civil Procedure. The Defendants further understand that any violation of this judgment may result in them being adjudged in contempt of court. Assented to, waiving all rights to Appeal.” (Exhibit 1)


3) The Final Judgment reads
“It is Hereby Ordered and Adjudged that: 1. All future meetings of the Defendants as the Boston City Council and any committees thereof be held in accordance with the full provisions and spirit of G.L. c. 39, 32B relating to meetings of governmental bodies, the procedure for convening executive sessions, and the requirement that records be maintained as required thereunder” (Exhibit 1)

4) On March 27, 2006 Superior Court Judge Staffier Holtz found the City Council guilty of Open Meeting Law Violations in McCrea v. Flaherty and the Boston City Council 05-01798. On Appeal, the Boston City Council was still found guilty of violating the Open Meeting Law. Judge Holtz wrote:

“It is furter ORDERED that the Boston City Council is Enjoined as follows:
The Boston City Council and any committee thereof shall comply with the
Requirements of the Open Meeting Law, G.L. cc 39B in the future. This
shall include compliance with the requirements relating to executive
session, to wit:

No executive session shall be held until [Boston City Council] has first
convened in an open session for which notice has been given, a majority of
the members have voted to go into executive session and the vote of each
member is recorded on a roll call vote and entered into the minutes, the
presiding officer has cited the purposes for an executive session, and the
presiding officer has stated before the executive session if [the Boston City
Council] will reconvene after the executive session.” (Ex. 5)




STATEMENT OF FACTS
1) The Boston City Council has been found guilty of 11 counts of violating the Open Meeting Law by the Suffolk Superior Court in McCrea v. Flaherty and the Boston City Council, C.A 05-01798B
2) On appeal, the Appeals Court found the Boston City Council guilty on 1 count and remanded to the Superior Court the other 10 counts for fact finding. This case is still pending. Plaintiffs sent a settlement proposal to the defendants.
3) Subsequently, on August 6, 2008, the Boston City Council held a regular public meeting of the Boston City Council.
4) On August 15, 2008 Plaintiff Kevin McCrea received an e-mail from counsel for the Defendant Boston City Council, Mary Jo Harris, in which she states “The council met August 6 to consider the proposal, with me, in executive session and voted to reject it at that time.” (Exhibit 2)
5) City Council Meeting Minutes posted online do not reflect any Executive Session on that date.
6) Plaintiff McCrea went to the City Clerks office and spoke with Assistant City Clerk Alex Geourntas who provided a hardcopy of the minutes, which also include no indication that the City Council met in Executive Session. Mr. Geourntas assured Mr. McCrea that the minutes online are verbatim to the official minutes. (Exhibit 3)
7) While at Boston City Hall, Plaintiff McCrea checked the posting board on the first floor. On the posting board was an undated notice which states:
“Committee on Rules and Administration, which shall concern itself with the rules and administrative functions of the Council. The Committee shall meet in confidence to discuss matters in accordance with M.G.L. c. 39, s. 23B (the state Open Meeting Law). Adoption of the Rules of the City Council shall serve as an affirmative vote of the Council to convene the committee as the chair sees fit. The purpose of the committee’s meetings shall be to address such issues as are outlined in the Open Meeting Law. The Clerk, as Clerk of the Council, shall participate in committee meeting convened to address rules related or parliamentary issues at the request of the chair. Adoption of said rules shall also serve as notice of the several meetings of the Committee. Rule 1 of these rules shall govern the reconvening of the Council. The Clerk shall reproduce this section and post such notice appropriately in City Hall.” (Exhibit 4)

8) Plaintiff McCrea contacted City Council President Maureen Feeney’s office to bring attention to this notice which indicates that the committee can “convene…as the chair sees fit” with no date and time as required by MGL Chapter 39 section 23 B. He spoke with Justin Holmes of Councilor Feeney’s office many times over the course of at least a month asking that the notice be taken down. Mr. Holmes guessed that the notice might be left over from previous years.
9) On October 28, 2008 Plaintiff McCrea checked the notice board and said notice was still displayed. He met with Justin Holmes who indicated that Councilor Feeney could do nothing about it and that he should talk to the City Clerk about it.
10) Plaintiff Mr. McCrea also requested Councilor Sam Yoon’s office to have the notice taken down, and also asked Councilor John Tobin to take the notice down.
11) Plaintiff McCrea visited the City Clerk’s office after these meetings. He met with Darlene Bryant who indicated she had posted the notice subsequent to the first City Council Meeting of the year. The City Clerk was on vacation and was not available.
12) At this date, the notice is still posted.
13) On October 30, 2008 Defendant Boston City Council sent a Motion for Summary Judgment to Plaintiff Kevin McCrea in the McCrea v. Flaherty case, in which the Boston City Council admitted they violated the Open Meeting Law in the 10 remaining cases remanded to the Superior Court from the Appeals Court.

ARGUMENT
A. The Council Violated the Executive Session Provisions of the Open Meeting Law.
1) M.G.L. Chapter 39, Section 23B states:
“No executive session shall be held until the governmental body has first convened in an open session for which notice has been given, a majority of the members have voted to go into executive session and the vote of each member is recorded on a roll call vote and entered into the minutes, the presiding officer has cited the purpose for an executive session, and the presiding officer has stated before the executive session if the governmental body will reconvene after the executive session”.

The lawyer for the City Council informed Plaintiff Kevin McCrea that the City Council went into Executive Session on August 6, 2008 to discuss, of all things, their violations of the Open Meeting Law. However, the Boston City Council, according to its official minutes, did not go into executive session, did not record a roll call vote, and did not state the purpose of its executive session. This is a violation of the Open Meeting Law.

2. The Open Meeting Law further states “A governmental body shall maintain accurate records of its meetings, setting forth the date, time, place members present or absent and action taken at each meeting, including executive sessions.” On August 6, 2008 the Boston City Council went into Executive Session and did not record this for the public record. This is a violation of the Open Meeting Law.

B. The Council Has Violated and Continues to Violate the Notice Provision of the Open Meeting Law.

1) In regards to the posting of the Committee on Rules and Administration, there are multiple violations of the Open Meeting Law. The Open Meeting Law states “All meetings of a governmental body shall be open to the public.” The Open Meeting Law states each “notice shall ….contain the date, time and place of such meeting.” This notice does not cite a date, time or place of any meetings, and indeed indicates that the meetings are confidential and closed, without claiming specific exemptions provided by the Law. Therefore the notice is in violation of the Open Meeting Law. Every meeting held pursuant to this notice was in violation of the Law. Every day that this notice was posted was a day in which a violation of the Open Meeting Law occurred.
2) The office of City Council President Maureen Feeney, who is by statute also the chair of the Committee on Rules, has told plaintiff Kevin McCrea that this posting is the responsibility of the City Clerk. However, the Open Meeting Law states “Such filing and posting shall be the responsibility of the officer calling such meeting.” Clearly the responsibility is with the City Council in regard to their meetings, not their Clerk.

C. The Council Is In Violation of Its Consent Agreement to Obey the Open Meeting Law on Penalty of Contempt Citation.

1 The Consent agreement specifically identifies “The Defendants, Boston City Council and City Councillors” clearly identifying that the City Council as a body is part of the consent agreement, not just the councilors individually. The Boston City Council as currently constituted is well aware of the Shannon decision, having spent well over $100,000 of taxpayer money over the last 3 years defending themselves in the McCrea v. Flaherty case. In her decision in that case Judge Staffier-Holtz wrote: “This Court finds that it is likely that the Council will continue to act in contravention of the Open Meeting Law in the future and injunctive relief is therefore appropriate.” On May 1, 2008 Judge Granger alluded to the Shannon Case with the opening line of the decision of the Appeals Court in McCrea v. Flaherty case “The city council of Boston finds itself, not for the first time, on the losing end of a determination that it has improperly excluded the public from its deliberations.” The Boston City Council, despite numerous adjudicated violations of the Open Meeting Law, despite warning by the courts and the District Attorney not to exclude the public, and despite plaintiff’s repeated request to take down a notice clearly in violation of the Open Meeting Law, continue to refuse to comply with the straightforward requirements of the Law. For these willful violations of the Open Meeting Law, they should be held in contempt as they agreed to in the Shannon Consent agreement.

PRAYER FOR ISSUANCE OF SUMMONS
1) From Rule 65.3.c.5 a prayer for the issuance of a Summons is requested within 10 days.
2) Summons. The summons shall issue only on a judge's order and shall direct the parties to appear before the court not later than ten days thereafter for the purpose or purposes specifically stated therein of: scheduling a trial, considering whether the filing of an answer is necessary, holding a hearing on the merits of the complaint, or considering such other matters or performing such other acts as the court may deem appropriate.
3) The Open Meeting Law requires that a hearing be held within 10 days, with regard to the “speediest possible determination of the cause”. Defendant Boston City Council was able to delay both the Shannon and the McCrea case for years, and Plaintiff requests this Court hold a quick and speedy hearing to deter this tact. Justice delayed is justice denied.

REMEDY

WHEREFORE, the Plaintiff respectfully request that this Honorable Court:

1) Find the City Council and its members in contempt of court for each violation of the Open Meeting Law.
2) Levy appropriate damages in accordance with the Open Meeting Law guidelines.
3) Administer appropriate injunctive relief.
4) Consider appointing a special master to oversee the actions of the Boston City Council, or order it to convene a Sunshine Commission similar to the one employed by the City of San Francisco to insure that citizens are not excluded from the actions of their government.





Respectfully submitted,
Plaintiff pro se


________________________________________________________________
Kevin McCrea, 218 West Springfield Street, Boston, MA 02118 617-267-2453

1 comment:

the zak said...

Thank you Kevin McCrea !

Please do a TV segment on WGBH Channel 2 Greater Boston with Emily Rooney.

That journalists haven't taken these same steps reflects upon a lack in that profession and the journalists ingratiated to their city sources.

Our City Clerk and Assistant City Clerk should be brought to the attention of the City Clerks' professional societies about their routine flouting of open govenment with badly written minutes.

Candidates' campaigns for City Council should be encouraged to bring forth the issues of sunshine open government.