***Boston Municipal Research Bureau confirms McCrea’s calls for Financial Responsibility***
Today the Boston Municipal Research Bureau put out a report which confirms what I have been saying throughout the campaign: City Hall is not being prudent with our money. (http://www.boston.com/news/local/breaking_news/report.pdf)
All three of my opponents have been complicit in this expansion of the City Payroll without being responsible about the long term financial considerations. In the last four years, the Mayor has added 1200 new jobs to the City Payroll, of which only 200 are police officers and 100 are teachers. That is 900 non-essential jobs. The City Budget has grown at twice the rate of inflation.
Councilors Flaherty and Yoon have done no better. In the past four years the City Council budget has increased by 20%. In the past two years they voted to increase City Council Central Staff by 8.5%. Now they give a reason for running for Mayor is because the City Council has little power to affect change. If the City Council has such little relevance, why did they increase the money spent on an area of government which is not essential? Michael Flaherty voted for the budget every single year until this one. Sam Yoon voted against the budget because he wanted to increase amounts spent, and he wants to implement a regressive “five cents for safety” sales tax on top of our already increased sales tax.
As I have been telling interested voters, we are facing 10 percent increases in property taxes in both fiscal year 2010 and 2011 because of the bad fiscal management at City Hall combined with the downturn in commercial real estate. Meanwhile the Mayor continues to give away our valuable assets like Hayward Place ($23 million) for free to connected developer friends. This needs to stop.
When I am elected Mayor I will:
• Eliminate the BRA and reclaim the hundreds of millions of property and revenue Menino has given away
• Save on health care costs by moving municipal employees to the State Plan
• Sell all excess property the City owns at market rates
• Make non-profits pay the suggested PILOT payments or suspend zoning and building permits
• Eliminate tax breaks for rich developers such as $8 million for One Beacon Street and $2 million for JP Morgan Chase
• Install zero based budgeting at City Hall to eliminate the waste, fraud and abuse of our resources
• Eliminate over 4 years the $80 million spent on busing, and reinvest that into the schools
Three years ago I put together a power point presentation “Show me the Money” which I disseminated around town which the Boston Globe reported on (http://www.boston.com/news/local/articles/2006/11/26/their_mission_overthrow_the_bra/). I outlined exactly the fiscal crisis we are in now. My three opponents ignored the warnings. “It is time to elect someone who will watch the publics’ money as closely as his own.”
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Thursday, August 06, 2009
Thursday, June 02, 2005
City Council's response to Open Meeting Law lawsuit
Please pay particular attention to their argument that the city council has no authority at all over the BRA, so since they have no authority over the BRA they can meet with them in private whenever they want. Also, their argument that they can meet with whomever they want in closed session as long as there is no pending action affecting that person or entity before the council.
In other words, their position seems to be that they can meet in private with anyone for as long as they want, then put a motion in front of the council, have one open meeting to vote on whatever they want to give that person, and that is ok.
Doesn't sound like the kind of government that I want, but read for yourself......
Kevin
CITY OF BOSTONLAW DEPARTMENTCity Hall, Room 615Boston, MA 02201
THOMAS M. MENINOMayor
MERITA A. HOPKINSCorporation Counsel
May 26, 2005
Shirley Kressel 27 Hereford Street Boston, Massachusetts
Kevin McCrea218 West Springfield Street Boston, Massachusetts
Kathleen Devine 49 Symphony Road #33 Boston, Massachusetts
RE: Kevin McCrea. Shirley Kressel and Kathleen Devine v. Michael F. Flaherty and the Boston City Council
Superior Court No. 05-1798-B
Enclosed pursuant to Superior Court Rule 9A, please find the following documents:
1. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 12(b)(6); and 2. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS.
Please respond within the time allowed. Thank you for your attention to this matter.
Yours truly,
Ronald G. NelsonAssistant Corporation Counsel(617)635-4097
RGN/jlfEnclosureTEL.: (617) 635-4034 FAX: (617) 635-3199
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT DEPARTMENTOF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
KEVIN McCREA, SHIRLEY KRESSEL, and KATHLEEN DEVINE,Plaintiffs,
v.
MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL,Defendants.
THE DEFENDANTS', MICHAEL F. FLAHERTY andBOSTON CITY COUNCIL, MOTION TO DISMISSPURSUANT TO MASS. R. CIV. P. 12(b)(6)
Now come the Defendants, Boston City Council and Michael F. Flaherty, as City Council President ("Defendants") in the above-captioned matter and move this Honorable Court, pursuant to Mass. R. Civ. P. 12(b)(6), to dismiss all counts of the plaintiffs' complaint against the Defendants. As reasons for this Motion, the Defendants state:
1) The plaintiffs fail to state a claim under G.L. c. 39, §23B; and
2) The relief sought by the plaintiffs is overly broad.
The plaintiffs, therefore, have failed to state a claim upon which relief can be granted, and their complaint should be dismissed with prejudice.
As further grounds for its motion, the Defendants submit the attached Memorandum of Law.
CERTIFICATE OF SERVICE
I hereby certify that on this day a truecopy of the above document was servedupon each party appearing pro se by U.S.mail, first class, postage paid.
Ronald G" Nelson
Date"
Respectfully submitted,
Defendants BOSTON CITY COUNCILand Michael F. FIaherty, as City
Council President,
By their attorney,Merita A. HopkinsCorporation Counsel
Mark Sweeney,BB0P490160Ronald G. Nelson, BBO # 652035Assistant Corporation CounselCity of Boston Law DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4097
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
KEVIN McCREA, SHIRLEY KRESSEL,and KATHLEEN DEVINE,Plaintiffs,v.MICHAEL F. FLAHERTY and theBOSTON CITY COUNCIL,Defendants.
THE DEFENDANTS', MICHAEL F. FLAHERTY andBOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIRMOTION TO DISMISS
INTRODUCTION
This is an action, pursuant to GL. c. 39, section 23B, the state Open MeetingLaw, that seeks (1) to sanction the Boston City Council for a purported violation of lawin connection with a January 20,2005, informational briefing provided to CityCouncillors regarding a tularemia outbreak at a Boston University research facility(hereinafter, the "Tularemia Briefing"), and (2) to invalidate a December 15, 2004, voteof the Boston City Council to approve the extension of Boston Redevelopment Authority(BRA) Urban Renewal Plans. The plaintiffs' claims against the Boston City Council andMichael F. Flaherty, as City Council President, should be dismissed as a matter of lawbecause the plaintiffs clearly fail to state a claim pursuant to G.L. c. 39, §23B upon whichrelief can be granted.
This memorandum will discuss the provisions of the Open Meeting Law generally as well as the particular allegations regarding the Tularemia Briefing and the Urban Renewal Extensions and will conclude that the Boston City Council fully complied with the Open Meeting Law in both instances.
FACTS1
The Boston City Council is the legislative body of the City of Boston. See St. 1948, c. 452, §11, as appearing in St. 1951, c. 376, § 1. In order to conduct public business, a quorum of seven out of thirteen Councillors is necessary. Complaint, P 10. On June 3, 2003, members of the City Council participated in the first of several informational sessions with BRA regarding Urban Renewal Plan Extensions. Complaint, P 12. On June 19, 2003, members of the City Council participated in a second informational session with the BRA. Complaint, P 13. Plaintiff Shirley Kressel was present for this informational session, which she characterized as a meeting during which the BRA provided information on Urban Renewal Plan Extension. Id. On August 14, 2003 another informational meeting was held with the BRA with only two Councillors in attendance. Complaint, P14; Attachment 3. Several other such informational sessions were held in order to promote dialogue on issues of concern to the City Council. Id. At no time during any of the above referenced informational sessions did the Councillors deliberate, decide or vote on any matter properly before them that required a quorum.
______________________________________________1 The defendants assume these facts, as alleged in the plaintiffs' complaint, only for the purposes of pursuing their Motion to Dismiss and, therefore, the subsequent statements should not be construed as an admission to the allegations plead in the complaint.
2
See Complaint, Attachment 2. On December 15, 2004, during a duly noticed open session, the City Council deliberated and passed an Order transmitted to it by Mayor Thomas M. Menino on October 26, 2004, regarding Urban Renewal Plan Extension. Complaint, P18; Exhibits 1 and 2.2 On January 20, 2005, the City Council participated in the Tularemia Briefing with Boston University regarding the outbreak at one of its research facilities. Complaint, P 19. At no time during this briefing did the Councillors deliberate, decide or vote on any matter properly before them that required a quorum and was within their jurisdiction to consider. On March 21, 2005, acting on a complaint filed by plaintiff Kathleen Devine, Assistant District Attorney Donna J. Patalano sent a letter to Council President Flaherty, stating that the Suffolk County District Attorney's Office has concluded that the Tularemia Briefing "did not fall into any of the enumerated exceptions provided pursuant to the Open Meeting Law." Complaint, P 21; Attachment 11.
On March 24,2005, several City Councillors attended another informational session with the BRA. Complaint, P 23-25. Although plaintiff McCrea wrote several letters to the Suffolk District Attorney's Office complaining that the March 24, 2005 informational session violated the Open Meeting Law, to date, the District Attorney's Office has not responded to his complaint. Complaint, P 31 and 36.
________________________________2 Although as a general rule a court may not consider documents outside of the pleadings withoutconverting a motion to dismiss into one for summary judgment, exceptions to this general rule exist "fordocuments central to plaintiffs' claim; or for documents sufficiently referred to in the complaint."Watterson v. Page. 987 F. 2d 3 (1st Cir. 1993). An exception also exists for official records, the authenticity of which the plaintiffs do not dispute. See id., quoting Cortec Indus., Inc. v. Sum Holding L.P.. 949 F. 2d 42, 48 (2d Cir. 1991), cert. Denied, 503 U.S. 960 (1992).
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ARGUMENT
DEFENDANTS' MOTION TO DISMISS SHOULD BE GRANTED WHERE THE PLAINTIFFS FAIL TO STATE A CLAIM UNDER G.L. c.39, §23B
The plaintiffs' allegations, that the Boston City Council conducted "meetings" in violation of G.L. c. 39, §23B, are completely without merit. 3 General Laws ch. 39, §23B provides that "[a]ll meetings of a governmental body shall be open to me public .... No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except4 as provided by this section." G.L. c. 39, §23B (emphasis added). "Executive session" is defined by G.L. c. 39, § 23A as "any meeting of a governmental body which is closed to certain persons for deliberation on certain matters." G.L. c. 39, § 23A (emphasis added). "Meeting" is defined as "any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program." G.L. c. 39, § 23A (emphasis added). "Deliberation" is defined as "a verbal exchange between a quorum of members of a governmental body attempting to
____________________________________________________3 The Defendants also assert that the plaintiffs' standing to pursue their claim is, at the moment, tenuous. The Open Meeting Law allows three registered voters to seek relief against a governmental body in violation of the law. See G.L. c. 39,§ 23B. In the instant complaint, while captioned in the name of three purported registered voters, Mr. McCrea, Ms. Kressel, and Ms. Devine, the complaint is only signed by Mr. McCrea pro se. Since Mr. McCrea does not appear to be an attorney licensed to practice law in the Commonwealth of Massachusetts, his signature is on his own behalf, and, therefore, the complaint is deficient, as it lacks the required number of registered voters.
4 The exception refers to the enumerated exceptions under which a governmental body may hold an"executive session." See G.L. c. 39, § 23B.
4
arrive at a decision on any public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added).
While these provisions make it clear that the public's business must be conducted in public, it is equally clear that not every discussion of issues of public concern is subject to the Open Meeting Law. In the case of the Boston City Council, only pending legislative measures that are within the City Council's jurisdiction are subject to the Open Meeting Law since those are the only matters upon which the City Council may deliberate or make decisions. See G.L. c. 39, § 23B. As discussed below, neither the Tularemia Briefing nor the briefings provided to City Councillors by the BRA director were related to pending legislation within the Boston City Council's jurisdiction and thus it is clear from the plain language of the statute that the plaintiffs' claims have no merit.
The City Council is the City of Boston's legislative body. See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The business of the City Council is to act on legislation in the form of orders, ordinances or resolutions, i.e.. to legislate. See id. Legislation may take the form of orders, ordinances or resolutions. See St. 1948 c. 452, §17D. In order for the Council to legislate, a quorum of the body must be present at a duly noticed public session. See St. 1948 c. 452, §17D; Rules of the Boston City Council, Rules 25 and 5.6 Here it is clear on the face of the complaint and its attachments
_______________________________________5 Rule 2, entitled Quorum, states:"A quorum of the council shall consist of seven members and any member may call for a roll call onthe question of the presence of a quorum. If at any time any meeting is called to order, or if during ameeting, a roll call shows less than a quorum, the presiding officer shall call a recess of not more than ten minutes, after which time, if a quorum is not present, the meeting may be adjourned by me presiding officer." .6 Rule 5, entitled Matters Properly Before Council, states:"No motion or proposition of a subject different from the one under consideration shall be admittedunder the color of an amendment.
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that none of the briefings were related at the time of their occurrence to any order,ordinance or resolution pending before the City Council for which a quorum of members was required.
1. The Plaintiffs Complaint is untimely filed.The plaintiffs claim that the January 20, 2005 Tularemia Briefing with Boston University and informational sessions with the BRA held prior to the December 15, 2004 session, during which the City Council passed an Order approving the Urban Renewal Plan Extension, violated the Open Meeting Law. However, pursuant to G.L. c. 39, §23B, a complaint to "invalidate an action taken at any meeting at which any provision of this section has been violated" must be "filed within twenty-one days of the date when such action is made public." G.L. c. 39, §23B. Failure to adhere to this strict statute of limitations bars any such complaint. See Benevolent & Protective Order of Elks, Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566 (1988). The plaintiffs seek to "invalidate the December 15, 2004 vote by the City Council approving the BRA proposal for Urban Renewal Plan Extensions." That vote occurred at a duly noticed public session of the City Council, and therefore became public immediately. See Benevolent & Protective Order of Elks. Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566. The plaintiffs did not file their complaint until May 7,
________________________________________Any motion, order, or resolution which has been previously debated and acted upon in the current municipal year, or which conflicts with the city charter, federal or state constitution or with rules prescribed by existing city ordinance, federal law or state law, or which in the opinion of the presiding officer does have a direct bearing on the business of the council shall be referred to the committee of the whole, and shall not be further considered by the council except upon report by that committee. There shall be no appeal from the decision of the chair hereunder, and this rule shall not be subject to suspension. Upon invocation of this rule by the president, no motion shall apply, nor shall unanimous consent to speak on the matter so referred be in order.
The committee of the whole may report that any motion, order, or resolution, so referred to it, is out of order for the reasons contained in Rule 5, and its report shall be a final disposition of the matter, subject to
6
2005, more than twenty-one days after the vote became public. The statute of limitations of G.L. c. 39, § 23B therefore bars the plaintiffs from seeking an order invalidating the City Council's vote. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council of Lawrence, 403 Mass. 563, 566. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
2. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the Tularemia Briefing.
The plaintiffs allege that the Boston City Council "held a 'councillors only meeting' to discuss Boston University exposing three of its researchers to tularemia." Complaint, P19. Tularemia is "an infectious disease of rodents, man and some domestic animals that is caused by the bacterium Francisella tularensis...." The American Heritage College Dictionary, 3rd Ed. Under state regulation, cases or suspect cases of tularemia must be reported to "the board of health in the community where the case is diagnosed or suspect case is identified." 105 CMR 300.100. The local board of health must then report to the state Department of Public Health. 105 CMR 300.110. m the City of Boston, the board of health is the Boston Public Health Commission, a body politic and corporate and political subdivision of the Commonwealth established by St. 1995 c. 147, §3.7
A memorandum from City Council President Flaherty, dated January 20, 2005, stated that "[a]s a result of this exposure and in conjunction with the Mayor, I would like to invite all Councillors to a Councillors only meeting today at 12:30 p.m. in my office (the Council President's office) to discuss the incident. Representatives from BU will
___________________________________________an appeal. The same provisions as those governing appeals from rulings of the presiding officer shallgovern such appeal."
7
provide Councillors with a briefing as well as be available for questions." Complaint, Attachment 9.
The complaint fails to allege that at the time of the Tularemia Briefing, January 20, 2005, there was any order, ordinance or resolution pending before the Council for which a quorum would be required that related to either tularemia or Boston University. Nor could such an allegation be made as there was no order, ordinance or resolution for which a quorum would be required for legislative action regarding either subject matter pending before the Council on January 20, 2005. See Boston City Council, Legislative Calendar for the January 26, 2005 Council Session, attached hereto as Exhibit 3.8
Thus, the January 20, 2005 briefing regarding the Boston University Tularemia incident is a matter of public health. The Tularemia Briefing did not relate to any matter upon which the City Council could decide or deliberate, as such matters are the exclusive province of the Boston Public Health Commission that is "not subject to the supervision of any other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over public health matters in the City of Boston without oversight from other official government bodies, the City Council's briefing on the Tularemia incident did not violate the Open Meeting Law, as the Council could not decide or deliberate toward a decision on a matter of public health.
Finally, although the plaintiffs make much of Assistant District Attorney Donna J. Patalano's March 21, 2005 letter to Council President Flaherty, stating that the Suffolk County District Attorney's Office has concluded that the Tularemia Briefing "did not fall
______________________________________________7 The Boston Public Health Commission's "Report of Pneumonic Tularemia in Three Boston University Researchers" may be found at http://bphc.org/reports/pdfs/report_202.pdf.
8
into any of the enumerated exceptions provided pursuant to the Open Meeting Law," it is clear the District Attorney's Office did not take the foregoing into consideration during its investigation of Kathleen Devine's complaint. It is telling that the District Attorney's Office has taken no further action in this matter or sought any order from this Court or the Supreme Judicial Court, pursuant to G.L. c. 39, § 23B.
3. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the BRA briefings.
The complaint alleges that on June 3, 2003, June 19, 2003, August 14, 2003, and September 23, 2003, unnoticed meetings of the City Council were held to discuss Urban Renewal Plan Extensions with the BRA. Complaint, P 12, 13, 14, 17. Again, none of the briefings referred to in the plaintiffs' complaint required a quorum of the City Council because no pending legislative matters were before the Council at the time of the alleged violations. Indeed, even if a quorum of Councillors were present at these various informational sessions, which is not alleged in the complaint, the Council did not decide or deliberate on any pending matter. Nor could the Council have deliberated or decided any issue because no legislation was pending before it at the time of the briefings. See Exhibit 3; see also G.L. c. 39, § 23A.
The Boston Redevelopment Authority is a separate body corporate and politic under the provisions of St. 1960, c. 652 and G. L. c. 121B, § 1, defining "Operating agency," and thus is not subject to the supervision or control of the Boston City Council. The City Council's only authority with respect to urban renewal is its ability to approve Urban Renewal Plan Extensions derived from its authority to approve original Urban Renewal Plans under G.L. c.121 B, § 48. Thus, the only decision or deliberation that the
_____________________________
8 Exhibit 3 is an official listing of all business then pending before the City Council on file.
9
Boston City Council could make with respect to Urban Renewal Plans, the December 15,2005, vote, was completely in compliance with the Open Meeting Law and the plaintiffsdo not contend otherwise. Complaint, P 18.
Zoning issues in Boston are handled by the Boston Zoning Commission, an administrative agency established by St. 1956, c. 665, § 1. The Boston City Charter prohibits the City Council from any direct or indirect involvement in the conduct of the executive or administrative business of the City. City Council of Boston v. Mayor of Boston, 383 Mass. 716, 723 (1981); see St. 1948, c.452, §17G, inserted by St. 1951, c.376, §1. Thus, the City Council could take no part in any decision or deliberation related to zoning.
The allegations and attachments to the plaintiffs' complaint do not show the Boston City Council illegally conducting City Council business with the Director of the BRA. Rather, the materials disclose that the BRA director made himself available to discuss BRA business with individual City Councillors that was in fact outside the jurisdiction of the City Council and would otherwise never come under its purview.
On December 15,2004, the City Council approved a BRA proposal for Urban Renewal Plan Extensions. Complaint, P 18. The Order approved by the City Council on December 15,2004, was filed with the Council on October 26, 2004 and thus could not have been the subject of any decision or deliberation requiring a quorum at the time of the alleged violations. While it is alleged that an Order relating to Urban Renewal Plan Extensions had been filed with the City Council on February 5, 2003, it must be noted that the "Order of Councillors Felix D. Arroyo, Maura A. Hennigan, Chuck Turner and Charles C. Yancey" relates to proposed state legislation that is outside the jurisdiction of
10
the Boston City Council and not to any order, ordinance or resolution over which the Boston City Council then had jurisdiction. Complaint, P 11; Attachment 1.9
Indeed, as evidenced by Council President Flaherty's June 3, 2003 memorandum to the Boston City Council, the alleged "meetings" with the BRA were informational sessions during which the City Council took no vote and made no decisions. See Memorandum of Council President Michael F. Flaherty, dated June 3, 2003, attached to Plaintiffs' Complaint as Attachment 2. Furthermore, the plaintiffs' complaint admits that the purpose of the June 19, 2003 meeting was for the BRA to provide information to the City Council. See Complaint P 13. Similarly, the City Council's January 20, 2005 meeting with representatives of Boston University was conducted to receive information regarding a public health issue. See Memorandum of Council President Michael F. Flaherty, dated January 20, 2005, attached to Plaintiffs' Complaint as Attachment 9. However, no quorum was required, no deliberation occurred and no vote was taken.
In fact, according to the City of Boston Charter and the Rules of the Boston City Council, the Council may only deliberate and decide on matters that are properly before it in the form of resolutions, orders or ordinances. See St. 1948 c. 452, §17D; Rules of the Boston City Council, Rule 5. Mayor Thomas M. Menino transmitted the City Council Order regarding Urban Renewal Plan Extension on October 26, 2004. See Exhibit 1. Said Order was referred to the Planning and Economic Development Committee the same day. Id. The full Council passed the Order on December 15, 2004, and Mayor Menino approved the Order on December 23, 2004. See Exhibit 2. Therefore, the informational
______________________________9 The plaintiffs' insinuation that this measure was not scheduled for hearing by City Council President Flaherty is false and misleading. City Council records show that Docket No. 000294 was duly referred to Council's Committee on Planning and Economic Development on February 5, 2003 and that it was ultimately placed on file without action on December 17, 2003. See Exhibit 4.
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sessions held with the BRA, referred to in PP 13, 14, 15 and 17 of plaintiffs' complaint, did not violate the Open Meeting Law, as the Urban Renewal matter was not properly before the Council prior to October 26, 2004. Thus, before Mayor Menino transmitted the Order, the City Council could not have "deliberated" on its contents.
Moreover, although the plaintiffs claim that these alleged "meetings" do not meet the enumerated exceptions listed in G.L. c. 39, § 23B, (see Complaint 127) the City Council never intended to hold an executive session, and further, the informational sessions do not meet me definition of executive session. See G.L. c. 39, § 23A. Therefore, the exceptions to the Open Meeting Law do not apply to such informational sessions. Since these informational sessions do not meet the definitions of "meeting," "executive session" or "deliberation," the plaintiffs' claim that the Boston City Councilviolated the Open Meeting Law is completely without merit, and, therefore, theircomplaint should be dismissed as a matter of law.
Even assuming arguendo that the City Council's informational sessions with the BRA violated the Open Meeting Law, any such violations were cured by the duly noticed, open session of the City Council held on December 15, 2004 during which the Urban Renewal Plan Extension was passed. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council of Lawrence, 403 Mass. 563, 566 (any violation of the Open Meeting Law through certain private, individual consultations between a city council's president and other members of the council had been cured by subsequent council meetings, held in compliance with the statutory requirement, before the action was commenced). The December 15, 2005 session was held prior to the filing of the instant complaint thus curing any alleged violation of the Open Meeting Law.
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4. The Plaintiffs failed to show that the alleged "meetings" were relative to matters over which the City Council has supervision, control, jurisdiction or advisory power.
As stated above, governmental bodies can only be said to have conducted a "meeting" if "a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered..." G.L. c. 39, § 23A (emphasis added). Furthermore, a governmental body can only "deliberate" on "public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added). It is clear that the City Council's alleged "meetings" did not violate the Open Meeting Law, as the subject matter of these sessions were relative to matters over which the City Council has no supervision, control, jurisdiction or advisory power.
The City Council's January 20, 2005 Tularemia Briefing regarding the Boston University tularemia outbreak is a matter of public health. Such matters are the exclusive province of the Boston Public Health Commission, which is "not subject to the supervision of any other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over public health matters in the City of Boston without oversight from other official government bodies, the City Council's briefing on the Tularemia incident did not violate the Public Meeting Law, as the City Council could not decide or deliberate toward a decision on a matter of public health.
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5. The Plaintiffs failed show that the City Council was conducting "public business."
The Boston City Council is the legislative body of the city." See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The City Council may not "directly or indirectly .. . take part in the employment of labor, the making of contracts, or the purchase of materials, supplies or real estate;... nor in the conduct of the executive or administrative business of the city or county; nor in the appointment or removal of any city or county employee; nor in the expenditure of public money except such as may be necessary for the contingent and incidental expenses of the city council." City Council of Boston v. Mayor of Boston. 383 Mass. 716, 723 (1981); see St. 1948, c. 452, § 17G, inserted by St. 1951, c. 376, § 1. The City Council's authority is limited largely to a check on the mayor's executive function through the power of appropriation. Id.; see St. 1948, c. 452, § 17D, inserted by St. 1951, c. 376, § 1. Therefore, matters that are within the scope of "public business" upon which the City Council may deliberate and decide are equally limited. Although there is no prohibition against the City Council discussing matters of public concern, such as the circumstances surrounding the accidental exposure of Boston University personnel to an infectious disease, such discussions are separate and apart from doing "public business," since, as explained above, the City Council is powerless to deliberate or decide on any action beyond its jurisdiction. Therefore, the plaintiffs have failed to show that any of the alleged "meetings" violate the Open Meeting Law, as such "meetings" required no quorum and no deliberations or decisions on matters
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within the scope of the City Council's jurisdiction occurred. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
THE RELIEF SOUGHT BY THE PLAINTIFFS IS OVERLY BROAD
The plaintiffs request inter alia that the Court invalidate the December 15, 2004 vote of the City Council, which passed the Urban Renewal Plan Extension Order. Such relief is overbroad and not appropriate in light of the claimed allegations. Specifically, the December 15, 2004 vote was cast after a public hearing during which a quorum of the City Council publicly deliberated and passed the Order transmitted by Mayor Menino on October 26, 2004. This session was a "meeting" of the City Council as defined by G.L. c. 39, §23B, and, therefore, its decision to pass the Order should not be invalidated due to allegations regarding other alleged "meetings" during which no such deliberation or decision occurred. Furthermore, as stated above, the duly noticed December 15,2005 session, during which the City Council deliberated the same issue complained of by the plaintiffs, cured any alleged violation of the Open Meeting Law. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council ofLawrence. 403 Mass. 563, 566. Therefore, the plaintiffs' request to invalidate the Council's vote, as well as their request for an order requiring the Council to "carry out the provisions of the Open Meeting Law at all future meetings" and all other requests should be denied. .
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CONCLUSION
For the foregoing reasons, the plaintiffs failed to state a claim pursuant to G.L. c.39, §23B for which relief can be granted.
WHEREFORE, The Boston City Council and Michael F. Flaherty, as CityCouncil President, respectfully requests that this Honorable Court dismiss the Complaintagainst them with prejudice and enter separate and final judgment.
CERTIFICATE OF SERVICE
I hereby certify that on this day a truecopy of the above document was servedupon each party appearing pro se by U.S.class, postage paid.
Ronald G. Nelson
Respectfully submitted,Defendants BOSTON CITY COUNCILand Michael F. Flaherty, as CityCouncil President,
By their attorney,Merita A. HopkinsCorporation Counsel
Mark Sweeney, BBO# 490160Ronald G. Nelson, BBO # 652035Assistant Corporation Counsel.City of Boston Law DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4097
16
In other words, their position seems to be that they can meet in private with anyone for as long as they want, then put a motion in front of the council, have one open meeting to vote on whatever they want to give that person, and that is ok.
Doesn't sound like the kind of government that I want, but read for yourself......
Kevin
CITY OF BOSTONLAW DEPARTMENTCity Hall, Room 615Boston, MA 02201
THOMAS M. MENINOMayor
MERITA A. HOPKINSCorporation Counsel
May 26, 2005
Shirley Kressel 27 Hereford Street Boston, Massachusetts
Kevin McCrea218 West Springfield Street Boston, Massachusetts
Kathleen Devine 49 Symphony Road #33 Boston, Massachusetts
RE: Kevin McCrea. Shirley Kressel and Kathleen Devine v. Michael F. Flaherty and the Boston City Council
Superior Court No. 05-1798-B
Enclosed pursuant to Superior Court Rule 9A, please find the following documents:
1. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 12(b)(6); and 2. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS.
Please respond within the time allowed. Thank you for your attention to this matter.
Yours truly,
Ronald G. NelsonAssistant Corporation Counsel(617)635-4097
RGN/jlfEnclosureTEL.: (617) 635-4034 FAX: (617) 635-3199
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT DEPARTMENTOF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
KEVIN McCREA, SHIRLEY KRESSEL, and KATHLEEN DEVINE,Plaintiffs,
v.
MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL,Defendants.
THE DEFENDANTS', MICHAEL F. FLAHERTY andBOSTON CITY COUNCIL, MOTION TO DISMISSPURSUANT TO MASS. R. CIV. P. 12(b)(6)
Now come the Defendants, Boston City Council and Michael F. Flaherty, as City Council President ("Defendants") in the above-captioned matter and move this Honorable Court, pursuant to Mass. R. Civ. P. 12(b)(6), to dismiss all counts of the plaintiffs' complaint against the Defendants. As reasons for this Motion, the Defendants state:
1) The plaintiffs fail to state a claim under G.L. c. 39, §23B; and
2) The relief sought by the plaintiffs is overly broad.
The plaintiffs, therefore, have failed to state a claim upon which relief can be granted, and their complaint should be dismissed with prejudice.
As further grounds for its motion, the Defendants submit the attached Memorandum of Law.
CERTIFICATE OF SERVICE
I hereby certify that on this day a truecopy of the above document was servedupon each party appearing pro se by U.S.mail, first class, postage paid.
Ronald G" Nelson
Date"
Respectfully submitted,
Defendants BOSTON CITY COUNCILand Michael F. FIaherty, as City
Council President,
By their attorney,Merita A. HopkinsCorporation Counsel
Mark Sweeney,BB0P490160Ronald G. Nelson, BBO # 652035Assistant Corporation CounselCity of Boston Law DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4097
2
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
KEVIN McCREA, SHIRLEY KRESSEL,and KATHLEEN DEVINE,Plaintiffs,v.MICHAEL F. FLAHERTY and theBOSTON CITY COUNCIL,Defendants.
THE DEFENDANTS', MICHAEL F. FLAHERTY andBOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIRMOTION TO DISMISS
INTRODUCTION
This is an action, pursuant to GL. c. 39, section 23B, the state Open MeetingLaw, that seeks (1) to sanction the Boston City Council for a purported violation of lawin connection with a January 20,2005, informational briefing provided to CityCouncillors regarding a tularemia outbreak at a Boston University research facility(hereinafter, the "Tularemia Briefing"), and (2) to invalidate a December 15, 2004, voteof the Boston City Council to approve the extension of Boston Redevelopment Authority(BRA) Urban Renewal Plans. The plaintiffs' claims against the Boston City Council andMichael F. Flaherty, as City Council President, should be dismissed as a matter of lawbecause the plaintiffs clearly fail to state a claim pursuant to G.L. c. 39, §23B upon whichrelief can be granted.
This memorandum will discuss the provisions of the Open Meeting Law generally as well as the particular allegations regarding the Tularemia Briefing and the Urban Renewal Extensions and will conclude that the Boston City Council fully complied with the Open Meeting Law in both instances.
FACTS1
The Boston City Council is the legislative body of the City of Boston. See St. 1948, c. 452, §11, as appearing in St. 1951, c. 376, § 1. In order to conduct public business, a quorum of seven out of thirteen Councillors is necessary. Complaint, P 10. On June 3, 2003, members of the City Council participated in the first of several informational sessions with BRA regarding Urban Renewal Plan Extensions. Complaint, P 12. On June 19, 2003, members of the City Council participated in a second informational session with the BRA. Complaint, P 13. Plaintiff Shirley Kressel was present for this informational session, which she characterized as a meeting during which the BRA provided information on Urban Renewal Plan Extension. Id. On August 14, 2003 another informational meeting was held with the BRA with only two Councillors in attendance. Complaint, P14; Attachment 3. Several other such informational sessions were held in order to promote dialogue on issues of concern to the City Council. Id. At no time during any of the above referenced informational sessions did the Councillors deliberate, decide or vote on any matter properly before them that required a quorum.
______________________________________________1 The defendants assume these facts, as alleged in the plaintiffs' complaint, only for the purposes of pursuing their Motion to Dismiss and, therefore, the subsequent statements should not be construed as an admission to the allegations plead in the complaint.
2
See Complaint, Attachment 2. On December 15, 2004, during a duly noticed open session, the City Council deliberated and passed an Order transmitted to it by Mayor Thomas M. Menino on October 26, 2004, regarding Urban Renewal Plan Extension. Complaint, P18; Exhibits 1 and 2.2 On January 20, 2005, the City Council participated in the Tularemia Briefing with Boston University regarding the outbreak at one of its research facilities. Complaint, P 19. At no time during this briefing did the Councillors deliberate, decide or vote on any matter properly before them that required a quorum and was within their jurisdiction to consider. On March 21, 2005, acting on a complaint filed by plaintiff Kathleen Devine, Assistant District Attorney Donna J. Patalano sent a letter to Council President Flaherty, stating that the Suffolk County District Attorney's Office has concluded that the Tularemia Briefing "did not fall into any of the enumerated exceptions provided pursuant to the Open Meeting Law." Complaint, P 21; Attachment 11.
On March 24,2005, several City Councillors attended another informational session with the BRA. Complaint, P 23-25. Although plaintiff McCrea wrote several letters to the Suffolk District Attorney's Office complaining that the March 24, 2005 informational session violated the Open Meeting Law, to date, the District Attorney's Office has not responded to his complaint. Complaint, P 31 and 36.
________________________________2 Although as a general rule a court may not consider documents outside of the pleadings withoutconverting a motion to dismiss into one for summary judgment, exceptions to this general rule exist "fordocuments central to plaintiffs' claim; or for documents sufficiently referred to in the complaint."Watterson v. Page. 987 F. 2d 3 (1st Cir. 1993). An exception also exists for official records, the authenticity of which the plaintiffs do not dispute. See id., quoting Cortec Indus., Inc. v. Sum Holding L.P.. 949 F. 2d 42, 48 (2d Cir. 1991), cert. Denied, 503 U.S. 960 (1992).
3
ARGUMENT
DEFENDANTS' MOTION TO DISMISS SHOULD BE GRANTED WHERE THE PLAINTIFFS FAIL TO STATE A CLAIM UNDER G.L. c.39, §23B
The plaintiffs' allegations, that the Boston City Council conducted "meetings" in violation of G.L. c. 39, §23B, are completely without merit. 3 General Laws ch. 39, §23B provides that "[a]ll meetings of a governmental body shall be open to me public .... No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except4 as provided by this section." G.L. c. 39, §23B (emphasis added). "Executive session" is defined by G.L. c. 39, § 23A as "any meeting of a governmental body which is closed to certain persons for deliberation on certain matters." G.L. c. 39, § 23A (emphasis added). "Meeting" is defined as "any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program." G.L. c. 39, § 23A (emphasis added). "Deliberation" is defined as "a verbal exchange between a quorum of members of a governmental body attempting to
____________________________________________________3 The Defendants also assert that the plaintiffs' standing to pursue their claim is, at the moment, tenuous. The Open Meeting Law allows three registered voters to seek relief against a governmental body in violation of the law. See G.L. c. 39,§ 23B. In the instant complaint, while captioned in the name of three purported registered voters, Mr. McCrea, Ms. Kressel, and Ms. Devine, the complaint is only signed by Mr. McCrea pro se. Since Mr. McCrea does not appear to be an attorney licensed to practice law in the Commonwealth of Massachusetts, his signature is on his own behalf, and, therefore, the complaint is deficient, as it lacks the required number of registered voters.
4 The exception refers to the enumerated exceptions under which a governmental body may hold an"executive session." See G.L. c. 39, § 23B.
4
arrive at a decision on any public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added).
While these provisions make it clear that the public's business must be conducted in public, it is equally clear that not every discussion of issues of public concern is subject to the Open Meeting Law. In the case of the Boston City Council, only pending legislative measures that are within the City Council's jurisdiction are subject to the Open Meeting Law since those are the only matters upon which the City Council may deliberate or make decisions. See G.L. c. 39, § 23B. As discussed below, neither the Tularemia Briefing nor the briefings provided to City Councillors by the BRA director were related to pending legislation within the Boston City Council's jurisdiction and thus it is clear from the plain language of the statute that the plaintiffs' claims have no merit.
The City Council is the City of Boston's legislative body. See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The business of the City Council is to act on legislation in the form of orders, ordinances or resolutions, i.e.. to legislate. See id. Legislation may take the form of orders, ordinances or resolutions. See St. 1948 c. 452, §17D. In order for the Council to legislate, a quorum of the body must be present at a duly noticed public session. See St. 1948 c. 452, §17D; Rules of the Boston City Council, Rules 25 and 5.6 Here it is clear on the face of the complaint and its attachments
_______________________________________5 Rule 2, entitled Quorum, states:"A quorum of the council shall consist of seven members and any member may call for a roll call onthe question of the presence of a quorum. If at any time any meeting is called to order, or if during ameeting, a roll call shows less than a quorum, the presiding officer shall call a recess of not more than ten minutes, after which time, if a quorum is not present, the meeting may be adjourned by me presiding officer." .6 Rule 5, entitled Matters Properly Before Council, states:"No motion or proposition of a subject different from the one under consideration shall be admittedunder the color of an amendment.
5
that none of the briefings were related at the time of their occurrence to any order,ordinance or resolution pending before the City Council for which a quorum of members was required.
1. The Plaintiffs Complaint is untimely filed.The plaintiffs claim that the January 20, 2005 Tularemia Briefing with Boston University and informational sessions with the BRA held prior to the December 15, 2004 session, during which the City Council passed an Order approving the Urban Renewal Plan Extension, violated the Open Meeting Law. However, pursuant to G.L. c. 39, §23B, a complaint to "invalidate an action taken at any meeting at which any provision of this section has been violated" must be "filed within twenty-one days of the date when such action is made public." G.L. c. 39, §23B. Failure to adhere to this strict statute of limitations bars any such complaint. See Benevolent & Protective Order of Elks, Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566 (1988). The plaintiffs seek to "invalidate the December 15, 2004 vote by the City Council approving the BRA proposal for Urban Renewal Plan Extensions." That vote occurred at a duly noticed public session of the City Council, and therefore became public immediately. See Benevolent & Protective Order of Elks. Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566. The plaintiffs did not file their complaint until May 7,
________________________________________Any motion, order, or resolution which has been previously debated and acted upon in the current municipal year, or which conflicts with the city charter, federal or state constitution or with rules prescribed by existing city ordinance, federal law or state law, or which in the opinion of the presiding officer does have a direct bearing on the business of the council shall be referred to the committee of the whole, and shall not be further considered by the council except upon report by that committee. There shall be no appeal from the decision of the chair hereunder, and this rule shall not be subject to suspension. Upon invocation of this rule by the president, no motion shall apply, nor shall unanimous consent to speak on the matter so referred be in order.
The committee of the whole may report that any motion, order, or resolution, so referred to it, is out of order for the reasons contained in Rule 5, and its report shall be a final disposition of the matter, subject to
6
2005, more than twenty-one days after the vote became public. The statute of limitations of G.L. c. 39, § 23B therefore bars the plaintiffs from seeking an order invalidating the City Council's vote. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council of Lawrence, 403 Mass. 563, 566. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
2. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the Tularemia Briefing.
The plaintiffs allege that the Boston City Council "held a 'councillors only meeting' to discuss Boston University exposing three of its researchers to tularemia." Complaint, P19. Tularemia is "an infectious disease of rodents, man and some domestic animals that is caused by the bacterium Francisella tularensis...." The American Heritage College Dictionary, 3rd Ed. Under state regulation, cases or suspect cases of tularemia must be reported to "the board of health in the community where the case is diagnosed or suspect case is identified." 105 CMR 300.100. The local board of health must then report to the state Department of Public Health. 105 CMR 300.110. m the City of Boston, the board of health is the Boston Public Health Commission, a body politic and corporate and political subdivision of the Commonwealth established by St. 1995 c. 147, §3.7
A memorandum from City Council President Flaherty, dated January 20, 2005, stated that "[a]s a result of this exposure and in conjunction with the Mayor, I would like to invite all Councillors to a Councillors only meeting today at 12:30 p.m. in my office (the Council President's office) to discuss the incident. Representatives from BU will
___________________________________________an appeal. The same provisions as those governing appeals from rulings of the presiding officer shallgovern such appeal."
7
provide Councillors with a briefing as well as be available for questions." Complaint, Attachment 9.
The complaint fails to allege that at the time of the Tularemia Briefing, January 20, 2005, there was any order, ordinance or resolution pending before the Council for which a quorum would be required that related to either tularemia or Boston University. Nor could such an allegation be made as there was no order, ordinance or resolution for which a quorum would be required for legislative action regarding either subject matter pending before the Council on January 20, 2005. See Boston City Council, Legislative Calendar for the January 26, 2005 Council Session, attached hereto as Exhibit 3.8
Thus, the January 20, 2005 briefing regarding the Boston University Tularemia incident is a matter of public health. The Tularemia Briefing did not relate to any matter upon which the City Council could decide or deliberate, as such matters are the exclusive province of the Boston Public Health Commission that is "not subject to the supervision of any other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over public health matters in the City of Boston without oversight from other official government bodies, the City Council's briefing on the Tularemia incident did not violate the Open Meeting Law, as the Council could not decide or deliberate toward a decision on a matter of public health.
Finally, although the plaintiffs make much of Assistant District Attorney Donna J. Patalano's March 21, 2005 letter to Council President Flaherty, stating that the Suffolk County District Attorney's Office has concluded that the Tularemia Briefing "did not fall
______________________________________________7 The Boston Public Health Commission's "Report of Pneumonic Tularemia in Three Boston University Researchers" may be found at http://bphc.org/reports/pdfs/report_202.pdf.
8
into any of the enumerated exceptions provided pursuant to the Open Meeting Law," it is clear the District Attorney's Office did not take the foregoing into consideration during its investigation of Kathleen Devine's complaint. It is telling that the District Attorney's Office has taken no further action in this matter or sought any order from this Court or the Supreme Judicial Court, pursuant to G.L. c. 39, § 23B.
3. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the BRA briefings.
The complaint alleges that on June 3, 2003, June 19, 2003, August 14, 2003, and September 23, 2003, unnoticed meetings of the City Council were held to discuss Urban Renewal Plan Extensions with the BRA. Complaint, P 12, 13, 14, 17. Again, none of the briefings referred to in the plaintiffs' complaint required a quorum of the City Council because no pending legislative matters were before the Council at the time of the alleged violations. Indeed, even if a quorum of Councillors were present at these various informational sessions, which is not alleged in the complaint, the Council did not decide or deliberate on any pending matter. Nor could the Council have deliberated or decided any issue because no legislation was pending before it at the time of the briefings. See Exhibit 3; see also G.L. c. 39, § 23A.
The Boston Redevelopment Authority is a separate body corporate and politic under the provisions of St. 1960, c. 652 and G. L. c. 121B, § 1, defining "Operating agency," and thus is not subject to the supervision or control of the Boston City Council. The City Council's only authority with respect to urban renewal is its ability to approve Urban Renewal Plan Extensions derived from its authority to approve original Urban Renewal Plans under G.L. c.121 B, § 48. Thus, the only decision or deliberation that the
_____________________________
8 Exhibit 3 is an official listing of all business then pending before the City Council on file.
9
Boston City Council could make with respect to Urban Renewal Plans, the December 15,2005, vote, was completely in compliance with the Open Meeting Law and the plaintiffsdo not contend otherwise. Complaint, P 18.
Zoning issues in Boston are handled by the Boston Zoning Commission, an administrative agency established by St. 1956, c. 665, § 1. The Boston City Charter prohibits the City Council from any direct or indirect involvement in the conduct of the executive or administrative business of the City. City Council of Boston v. Mayor of Boston, 383 Mass. 716, 723 (1981); see St. 1948, c.452, §17G, inserted by St. 1951, c.376, §1. Thus, the City Council could take no part in any decision or deliberation related to zoning.
The allegations and attachments to the plaintiffs' complaint do not show the Boston City Council illegally conducting City Council business with the Director of the BRA. Rather, the materials disclose that the BRA director made himself available to discuss BRA business with individual City Councillors that was in fact outside the jurisdiction of the City Council and would otherwise never come under its purview.
On December 15,2004, the City Council approved a BRA proposal for Urban Renewal Plan Extensions. Complaint, P 18. The Order approved by the City Council on December 15,2004, was filed with the Council on October 26, 2004 and thus could not have been the subject of any decision or deliberation requiring a quorum at the time of the alleged violations. While it is alleged that an Order relating to Urban Renewal Plan Extensions had been filed with the City Council on February 5, 2003, it must be noted that the "Order of Councillors Felix D. Arroyo, Maura A. Hennigan, Chuck Turner and Charles C. Yancey" relates to proposed state legislation that is outside the jurisdiction of
10
the Boston City Council and not to any order, ordinance or resolution over which the Boston City Council then had jurisdiction. Complaint, P 11; Attachment 1.9
Indeed, as evidenced by Council President Flaherty's June 3, 2003 memorandum to the Boston City Council, the alleged "meetings" with the BRA were informational sessions during which the City Council took no vote and made no decisions. See Memorandum of Council President Michael F. Flaherty, dated June 3, 2003, attached to Plaintiffs' Complaint as Attachment 2. Furthermore, the plaintiffs' complaint admits that the purpose of the June 19, 2003 meeting was for the BRA to provide information to the City Council. See Complaint P 13. Similarly, the City Council's January 20, 2005 meeting with representatives of Boston University was conducted to receive information regarding a public health issue. See Memorandum of Council President Michael F. Flaherty, dated January 20, 2005, attached to Plaintiffs' Complaint as Attachment 9. However, no quorum was required, no deliberation occurred and no vote was taken.
In fact, according to the City of Boston Charter and the Rules of the Boston City Council, the Council may only deliberate and decide on matters that are properly before it in the form of resolutions, orders or ordinances. See St. 1948 c. 452, §17D; Rules of the Boston City Council, Rule 5. Mayor Thomas M. Menino transmitted the City Council Order regarding Urban Renewal Plan Extension on October 26, 2004. See Exhibit 1. Said Order was referred to the Planning and Economic Development Committee the same day. Id. The full Council passed the Order on December 15, 2004, and Mayor Menino approved the Order on December 23, 2004. See Exhibit 2. Therefore, the informational
______________________________9 The plaintiffs' insinuation that this measure was not scheduled for hearing by City Council President Flaherty is false and misleading. City Council records show that Docket No. 000294 was duly referred to Council's Committee on Planning and Economic Development on February 5, 2003 and that it was ultimately placed on file without action on December 17, 2003. See Exhibit 4.
11
sessions held with the BRA, referred to in PP 13, 14, 15 and 17 of plaintiffs' complaint, did not violate the Open Meeting Law, as the Urban Renewal matter was not properly before the Council prior to October 26, 2004. Thus, before Mayor Menino transmitted the Order, the City Council could not have "deliberated" on its contents.
Moreover, although the plaintiffs claim that these alleged "meetings" do not meet the enumerated exceptions listed in G.L. c. 39, § 23B, (see Complaint 127) the City Council never intended to hold an executive session, and further, the informational sessions do not meet me definition of executive session. See G.L. c. 39, § 23A. Therefore, the exceptions to the Open Meeting Law do not apply to such informational sessions. Since these informational sessions do not meet the definitions of "meeting," "executive session" or "deliberation," the plaintiffs' claim that the Boston City Councilviolated the Open Meeting Law is completely without merit, and, therefore, theircomplaint should be dismissed as a matter of law.
Even assuming arguendo that the City Council's informational sessions with the BRA violated the Open Meeting Law, any such violations were cured by the duly noticed, open session of the City Council held on December 15, 2004 during which the Urban Renewal Plan Extension was passed. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council of Lawrence, 403 Mass. 563, 566 (any violation of the Open Meeting Law through certain private, individual consultations between a city council's president and other members of the council had been cured by subsequent council meetings, held in compliance with the statutory requirement, before the action was commenced). The December 15, 2005 session was held prior to the filing of the instant complaint thus curing any alleged violation of the Open Meeting Law.
12
4. The Plaintiffs failed to show that the alleged "meetings" were relative to matters over which the City Council has supervision, control, jurisdiction or advisory power.
As stated above, governmental bodies can only be said to have conducted a "meeting" if "a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered..." G.L. c. 39, § 23A (emphasis added). Furthermore, a governmental body can only "deliberate" on "public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added). It is clear that the City Council's alleged "meetings" did not violate the Open Meeting Law, as the subject matter of these sessions were relative to matters over which the City Council has no supervision, control, jurisdiction or advisory power.
The City Council's January 20, 2005 Tularemia Briefing regarding the Boston University tularemia outbreak is a matter of public health. Such matters are the exclusive province of the Boston Public Health Commission, which is "not subject to the supervision of any other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over public health matters in the City of Boston without oversight from other official government bodies, the City Council's briefing on the Tularemia incident did not violate the Public Meeting Law, as the City Council could not decide or deliberate toward a decision on a matter of public health.
13
5. The Plaintiffs failed show that the City Council was conducting "public business."
The Boston City Council is the legislative body of the city." See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The City Council may not "directly or indirectly .. . take part in the employment of labor, the making of contracts, or the purchase of materials, supplies or real estate;... nor in the conduct of the executive or administrative business of the city or county; nor in the appointment or removal of any city or county employee; nor in the expenditure of public money except such as may be necessary for the contingent and incidental expenses of the city council." City Council of Boston v. Mayor of Boston. 383 Mass. 716, 723 (1981); see St. 1948, c. 452, § 17G, inserted by St. 1951, c. 376, § 1. The City Council's authority is limited largely to a check on the mayor's executive function through the power of appropriation. Id.; see St. 1948, c. 452, § 17D, inserted by St. 1951, c. 376, § 1. Therefore, matters that are within the scope of "public business" upon which the City Council may deliberate and decide are equally limited. Although there is no prohibition against the City Council discussing matters of public concern, such as the circumstances surrounding the accidental exposure of Boston University personnel to an infectious disease, such discussions are separate and apart from doing "public business," since, as explained above, the City Council is powerless to deliberate or decide on any action beyond its jurisdiction. Therefore, the plaintiffs have failed to show that any of the alleged "meetings" violate the Open Meeting Law, as such "meetings" required no quorum and no deliberations or decisions on matters
14
within the scope of the City Council's jurisdiction occurred. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
THE RELIEF SOUGHT BY THE PLAINTIFFS IS OVERLY BROAD
The plaintiffs request inter alia that the Court invalidate the December 15, 2004 vote of the City Council, which passed the Urban Renewal Plan Extension Order. Such relief is overbroad and not appropriate in light of the claimed allegations. Specifically, the December 15, 2004 vote was cast after a public hearing during which a quorum of the City Council publicly deliberated and passed the Order transmitted by Mayor Menino on October 26, 2004. This session was a "meeting" of the City Council as defined by G.L. c. 39, §23B, and, therefore, its decision to pass the Order should not be invalidated due to allegations regarding other alleged "meetings" during which no such deliberation or decision occurred. Furthermore, as stated above, the duly noticed December 15,2005 session, during which the City Council deliberated the same issue complained of by the plaintiffs, cured any alleged violation of the Open Meeting Law. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council ofLawrence. 403 Mass. 563, 566. Therefore, the plaintiffs' request to invalidate the Council's vote, as well as their request for an order requiring the Council to "carry out the provisions of the Open Meeting Law at all future meetings" and all other requests should be denied. .
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CONCLUSION
For the foregoing reasons, the plaintiffs failed to state a claim pursuant to G.L. c.39, §23B for which relief can be granted.
WHEREFORE, The Boston City Council and Michael F. Flaherty, as CityCouncil President, respectfully requests that this Honorable Court dismiss the Complaintagainst them with prejudice and enter separate and final judgment.
CERTIFICATE OF SERVICE
I hereby certify that on this day a truecopy of the above document was servedupon each party appearing pro se by U.S.class, postage paid.
Ronald G. Nelson
Respectfully submitted,Defendants BOSTON CITY COUNCILand Michael F. Flaherty, as CityCouncil President,
By their attorney,Merita A. HopkinsCorporation Counsel
Mark Sweeney, BBO# 490160Ronald G. Nelson, BBO # 652035Assistant Corporation Counsel.City of Boston Law DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4097
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Tuesday, March 31, 2009
Cost Savings for the City
Sam Yoon is holding an Oversight Committee hearing this evening in Codman Square looking for ways to save money in the budget. I am going to the hearing and applaud Sam for holding the hearing. The funny thing however is that nearly all of the items I will put forth, have already been put forth before and Sam, Michael Flaherty and of course the Mayor have done nothing about these for years. My suggestions:
Kevin McCrea
218 West Springfield Street
Boston, MA 02118
617-267-2453
March 30, 2009
1) Change municipal health plan. The Boston Municipal Research Bureau estimates we could save $25 million a year by switching to the State Plan.
2) BRA
a. Eliminate city capital funding to the BRA in the yearly budget. The BRA
is self funded and does not need payments from the City of Boston
until they become transparent and answer all questions from the city council and the citizens about what that money is for. The BRA is not
laying off workers, while the City of Boston is laying off teachers.
b. Eliminate Chapter 121A tax breaks for all projects that are not for affordable housing in blighted areas, such as One Beacon Street. The City of Boston loses approximately 5 million dollars a year in real estate taxes on this single building. Examine two dozen other 121A’s such as New Boston Market and Post Office Square.
c. Take back any City owned properties that have been given to the BRA without compensation such as Hayward Place, City Hall Plaza, and the $2.4 million land given in Dorchester for the Salavation Army. These three properties are worth at least 300 million dollars.
d. Take back revenue streams that the BRA has taken from the City of Boston, such as the leasing of “air rights” at the Ames Building, Winthrop Square Garage, the leasing of Yawkey Way to the RedSox (this street is paid for by the citizens of Boston, why does the BRA get the revenue?)
e. Charge the BRA money for its office space such as at City Hall.
f. Tax land that the BRA has, after getting it properly assessed, especially income producing properties.
3) PILOT
a. We need to require consistent payments from our non-profit partners in the city, especially the hospitals and universities. The target is one quarter of what they would otherwise pay if the land was not tax free. We need to examine whether uses such as parking garages and restaurants should be exempted as well. Institutions should not be able to expand without negotiating proper PILOT payments, especially if city land or zoning exemptions are part of that expansion.
4) Increase the Financial Commission budget so that they can identify where money
is being wasted and/or contracts are not being honored or performed correctly.
5) DPW-
a) Currently the DPW is reactive not proactive. We need to have a long term
plan on when streets are going to be repaved. This allows homeowners, utilities and businesses to plan ahead to upgrade their use requirements. This will mean fewer street cuts, better roads with less maintenance, saving money.
b) Subcontracted street cleaners should not be hired to clean streets where the cars have not been required to move. The middle of the streets are not dirty, the edges are what needs to be cleaned.
6) Park and Neighborhood signs-As Mitt Romney identified when he was Governor,
putting politician names on street and park signs is a waste of taxpayer money. We need to stop this practice permanently.
7) Eliminate no bid contracts. Competition will help reduce costs
8) Change the law back to putting the city council central staff at 12 people. We no longer require a $70,000 job to figure ways the city council can avoid the open meeting law.
9) Eliminate the city council practice of giving bonuses to employees, changing their pay rate “at reappointment time” for one week and doubling their salaries.
10) Pension reform. Eliminate “one day one year” practice which allows situations as Paul Walkowski where someone can work less than 2 years and receive 3 years pension reward. Eliminate provisions for higher pension pay when filling in for higher grade employees.
11) Publish online all expenses and income, city contracts, etc. so that all the citizens can examine our finances for further savings.
12) Sell all surplus property owned by the City of Boston. This will add money to the general fund to pay for teachers, schools, etc.
13) Use financial tools such as auditing and zero based budgeting to identify cost savings, such as the Boston Fire Department with their well publicized call box Division and maintenance issues.
14) Change the Boston election cycle so that the Mayoral election is held in the same year as the presidential election. This will halve the cost of elections and increase voter participation.
15) Strengthen Public Records Laws and Open Meeting Laws so that councilors, citizens, unions, etc. can make informed decisions about our City budget.
Kevin McCrea
218 West Springfield Street
Boston, MA 02118
617-267-2453
March 30, 2009
1) Change municipal health plan. The Boston Municipal Research Bureau estimates we could save $25 million a year by switching to the State Plan.
2) BRA
a. Eliminate city capital funding to the BRA in the yearly budget. The BRA
is self funded and does not need payments from the City of Boston
until they become transparent and answer all questions from the city council and the citizens about what that money is for. The BRA is not
laying off workers, while the City of Boston is laying off teachers.
b. Eliminate Chapter 121A tax breaks for all projects that are not for affordable housing in blighted areas, such as One Beacon Street. The City of Boston loses approximately 5 million dollars a year in real estate taxes on this single building. Examine two dozen other 121A’s such as New Boston Market and Post Office Square.
c. Take back any City owned properties that have been given to the BRA without compensation such as Hayward Place, City Hall Plaza, and the $2.4 million land given in Dorchester for the Salavation Army. These three properties are worth at least 300 million dollars.
d. Take back revenue streams that the BRA has taken from the City of Boston, such as the leasing of “air rights” at the Ames Building, Winthrop Square Garage, the leasing of Yawkey Way to the RedSox (this street is paid for by the citizens of Boston, why does the BRA get the revenue?)
e. Charge the BRA money for its office space such as at City Hall.
f. Tax land that the BRA has, after getting it properly assessed, especially income producing properties.
3) PILOT
a. We need to require consistent payments from our non-profit partners in the city, especially the hospitals and universities. The target is one quarter of what they would otherwise pay if the land was not tax free. We need to examine whether uses such as parking garages and restaurants should be exempted as well. Institutions should not be able to expand without negotiating proper PILOT payments, especially if city land or zoning exemptions are part of that expansion.
4) Increase the Financial Commission budget so that they can identify where money
is being wasted and/or contracts are not being honored or performed correctly.
5) DPW-
a) Currently the DPW is reactive not proactive. We need to have a long term
plan on when streets are going to be repaved. This allows homeowners, utilities and businesses to plan ahead to upgrade their use requirements. This will mean fewer street cuts, better roads with less maintenance, saving money.
b) Subcontracted street cleaners should not be hired to clean streets where the cars have not been required to move. The middle of the streets are not dirty, the edges are what needs to be cleaned.
6) Park and Neighborhood signs-As Mitt Romney identified when he was Governor,
putting politician names on street and park signs is a waste of taxpayer money. We need to stop this practice permanently.
7) Eliminate no bid contracts. Competition will help reduce costs
8) Change the law back to putting the city council central staff at 12 people. We no longer require a $70,000 job to figure ways the city council can avoid the open meeting law.
9) Eliminate the city council practice of giving bonuses to employees, changing their pay rate “at reappointment time” for one week and doubling their salaries.
10) Pension reform. Eliminate “one day one year” practice which allows situations as Paul Walkowski where someone can work less than 2 years and receive 3 years pension reward. Eliminate provisions for higher pension pay when filling in for higher grade employees.
11) Publish online all expenses and income, city contracts, etc. so that all the citizens can examine our finances for further savings.
12) Sell all surplus property owned by the City of Boston. This will add money to the general fund to pay for teachers, schools, etc.
13) Use financial tools such as auditing and zero based budgeting to identify cost savings, such as the Boston Fire Department with their well publicized call box Division and maintenance issues.
14) Change the Boston election cycle so that the Mayoral election is held in the same year as the presidential election. This will halve the cost of elections and increase voter participation.
15) Strengthen Public Records Laws and Open Meeting Laws so that councilors, citizens, unions, etc. can make informed decisions about our City budget.
Tuesday, September 01, 2009
Boston Municipal Research Bureau lays out the financial mess our politicians have put us in.
Note how the warnings of disaster get louder and louder over the years with our politicians doing nothing about them:
April 2003 - Boston halts workforce growth
http://www.bmrb.org/content/upload/SR03-2.pdf
December 2003 - Boston's Shrinking Workforce
highlights employee count of 15,809 - has anybody noticed any service improvements since he hired 1500 extra people? All with health and pensions that aren't even close to funded?
http://www.bmrb.org/content/upload/sr038.pdf
July 2005 - Boston's $2 billion budget - Employee spending causes tight operations
http://www.bmrb.org/content/upload/sr038.pdf
March 2006 - Boston's Personnel Spending Surges Despite Employee Cuts
http://www.bmrb.org/content/upload/sr061.pdf
July 2006 - Boston's FY 2007 budget is set, concerns loom
highlights rapidly growing health insurance costs for workers and retirees
http://www.bmrb.org/content/upload/no63.pdf
April 2007 - Caution Ahead - Boston's rising personnel costs
READ THE CONCLUSION ON THIS ONE
June 2007 - Boston's employee earnings in 2006 - higher earnings put more focus on the affordability of generous benefits
http://www.bmrb.org/content/upload/SR072.pdf
July 2008 - Rising personnel costs are cause for concern
http://www.bmrb.org/content/upload/Personnel082.pdf
March 2009 - Personnel level unsustainable among fiscal stress
http://www.bmrb.org/content/upload/SR091.pdf
April 2003 - Boston halts workforce growth
http://www.bmrb.org/content/upload/SR03-2.pdf
December 2003 - Boston's Shrinking Workforce
highlights employee count of 15,809 - has anybody noticed any service improvements since he hired 1500 extra people? All with health and pensions that aren't even close to funded?
http://www.bmrb.org/content/upload/sr038.pdf
July 2005 - Boston's $2 billion budget - Employee spending causes tight operations
http://www.bmrb.org/content/upload/sr038.pdf
March 2006 - Boston's Personnel Spending Surges Despite Employee Cuts
http://www.bmrb.org/content/upload/sr061.pdf
July 2006 - Boston's FY 2007 budget is set, concerns loom
highlights rapidly growing health insurance costs for workers and retirees
http://www.bmrb.org/content/upload/no63.pdf
April 2007 - Caution Ahead - Boston's rising personnel costs
READ THE CONCLUSION ON THIS ONE
June 2007 - Boston's employee earnings in 2006 - higher earnings put more focus on the affordability of generous benefits
http://www.bmrb.org/content/upload/SR072.pdf
July 2008 - Rising personnel costs are cause for concern
http://www.bmrb.org/content/upload/Personnel082.pdf
March 2009 - Personnel level unsustainable among fiscal stress
http://www.bmrb.org/content/upload/SR091.pdf
Saturday, February 14, 2009
Mayor obfuscates in response to my call for fiscal responsibility
This week Tom Menino decided to comment a bit on my positions on his absence of foresight and leadership on schools, funding and staffing levels. He has not commented on the fact that he has given away hundreds of millions of dollars of taxpayer property for free. He clearly is not happy that I have been telling people that we have hired 1200 new employees (7% increase) in the last 5 years and only 200 are cops and 75 are teachers.
From the South End News:
“Menino disagreed with McCrea’s assertions in a statement sent to South End News on Feb. 10.
"I have said and continue to say that education is an absolute priority and protecting classrooms from deep cuts has always been my goal," said Menino. "Unfortunately, we can’t tighten our belts out of this unprecedented global economic crisis, and there is no singular solution to our troubles. I’ve asked the Legislature to give Boston the tools it needs to raise much needed revenue at a local level, and my administration will continue to meet with City unions to negotiate a one-year wage freeze that could protect core services and save hundreds of jobs.
"Superintendent Johnson and I firmly believe in working with students, parents, and families to address the unreasonable transportation costs that put money into the gas tanks of underused school buses rather than classrooms. I am also hopeful that our partners at the federal level will craft a responsible economic recovery plan that prioritizes critical investments in our schools."
Menino spokesperson Nick Martin further addressed McCrea’s statistics in an e-mail Feb. 10, saying he was "not sure what source" McCrea had cited.
"[T]he Boston Municipal Research Bureau put out a report last July showing that between 2004 [and] 2008, BPS hires accounted for approximately 64 percent of new positions," wrote Martin. He also talked about fire fighter hirings.
The Mayor’s spokesman is comparing apples to oranges, an old political trick designed to confuse the issue. I am talking about teachers and police officers, I never once mentioned fire fighters. I also believe actual teachers in the classroom are more important than the multiple bureaucratic layers of administration above them. Before we cut teachers, we need to cut administration.
Here is the report Menino's spokesman is referring to.
And here is the conclusion of the report: “ Conclusion: The escalating growth of Boston’s employee health insurance and pensions costs and projected future benefit expenses are reasons enough to be especially concerned about an increase of 680 positions over the past two years.”
In other words, the report Menino cites already warned him last year that these problems were coming. His response: budget for 142 new hires and pay raises for all his staff!
My research team has additional follow up:
1) The BMRB report cites 16,049 employees in 2004 (city budget records cite 16,048) and the 2009 budget calls for 17,217 employees or an increase of 1,168 employees since 2004 - your quote of a 1200 employee increase (approximately) or 7.3% over 5 years is accurate.
2) Based on the Globe report below, the claim of 200 additional police is accurate - January 1, 2009 article in the Boston Globe –
3) The city puts 1/1/2009 teacher headcount at 4,576 in the 2009 budget. The March 2004 "BPS At a Glance" puts the number of teachers in the system for the 2003-2004 school year at 4,488 (general fund only) - a difference of 88. Therefore by a count of 1 teacher, 100 additional teachers would be slightly more accurate than 75 additional teachers if you are citing numbers rounded to the nearest 25.
(Please note that all budgets prior to 2008 have been removed from the city’s website greatly exacerbating the difficulty of performing future budget analysis and cross checking of various versions of the budget which are subject to revision.) Not very transparent of the city!
Menino's spokesman in the SEN article isn't wrong - it's just apples and oranges - he's talking total hires - we are talking about teachers. They've hired a lot of people - but only 100 of them or so are teachers - depending on what numbers you look at. Roughly 650 of the hires in the school dept aren't teachers.
So, I stand corrected. My new statement is as follows:
The Mayor has hired about 1200 people in the last 5 years. 200 are police officers, 100 are teachers. Why are we talking about laying them off? Let’s look at the other 900 staff positions first before we start talking about laying off teachers and eliminating programs.
From the South End News:
“Menino disagreed with McCrea’s assertions in a statement sent to South End News on Feb. 10.
"I have said and continue to say that education is an absolute priority and protecting classrooms from deep cuts has always been my goal," said Menino. "Unfortunately, we can’t tighten our belts out of this unprecedented global economic crisis, and there is no singular solution to our troubles. I’ve asked the Legislature to give Boston the tools it needs to raise much needed revenue at a local level, and my administration will continue to meet with City unions to negotiate a one-year wage freeze that could protect core services and save hundreds of jobs.
"Superintendent Johnson and I firmly believe in working with students, parents, and families to address the unreasonable transportation costs that put money into the gas tanks of underused school buses rather than classrooms. I am also hopeful that our partners at the federal level will craft a responsible economic recovery plan that prioritizes critical investments in our schools."
Menino spokesperson Nick Martin further addressed McCrea’s statistics in an e-mail Feb. 10, saying he was "not sure what source" McCrea had cited.
"[T]he Boston Municipal Research Bureau put out a report last July showing that between 2004 [and] 2008, BPS hires accounted for approximately 64 percent of new positions," wrote Martin. He also talked about fire fighter hirings.
The Mayor’s spokesman is comparing apples to oranges, an old political trick designed to confuse the issue. I am talking about teachers and police officers, I never once mentioned fire fighters. I also believe actual teachers in the classroom are more important than the multiple bureaucratic layers of administration above them. Before we cut teachers, we need to cut administration.
Here is the report Menino's spokesman is referring to.
And here is the conclusion of the report: “ Conclusion: The escalating growth of Boston’s employee health insurance and pensions costs and projected future benefit expenses are reasons enough to be especially concerned about an increase of 680 positions over the past two years.”
In other words, the report Menino cites already warned him last year that these problems were coming. His response: budget for 142 new hires and pay raises for all his staff!
My research team has additional follow up:
1) The BMRB report cites 16,049 employees in 2004 (city budget records cite 16,048) and the 2009 budget calls for 17,217 employees or an increase of 1,168 employees since 2004 - your quote of a 1200 employee increase (approximately) or 7.3% over 5 years is accurate.
2) Based on the Globe report below, the claim of 200 additional police is accurate - January 1, 2009 article in the Boston Globe –
3) The city puts 1/1/2009 teacher headcount at 4,576 in the 2009 budget. The March 2004 "BPS At a Glance" puts the number of teachers in the system for the 2003-2004 school year at 4,488 (general fund only) - a difference of 88. Therefore by a count of 1 teacher, 100 additional teachers would be slightly more accurate than 75 additional teachers if you are citing numbers rounded to the nearest 25.
(Please note that all budgets prior to 2008 have been removed from the city’s website greatly exacerbating the difficulty of performing future budget analysis and cross checking of various versions of the budget which are subject to revision.) Not very transparent of the city!
Menino's spokesman in the SEN article isn't wrong - it's just apples and oranges - he's talking total hires - we are talking about teachers. They've hired a lot of people - but only 100 of them or so are teachers - depending on what numbers you look at. Roughly 650 of the hires in the school dept aren't teachers.
So, I stand corrected. My new statement is as follows:
The Mayor has hired about 1200 people in the last 5 years. 200 are police officers, 100 are teachers. Why are we talking about laying them off? Let’s look at the other 900 staff positions first before we start talking about laying off teachers and eliminating programs.
Thursday, April 01, 2010
My editorial against closing libraries
This printed in these weeks edition of the South End News.
Recently it has been reported that there is an emergency fiscal "crisis" with the Boston Public Libraries and that 10 of the 26 branch libraries may have to be shuttered. But, the numbers do not add up, and there is no real emergency. The crisis is one of honest government, proper planning, and responsible investigative journalism.
First the numbers: according to the Boston Globe, the library budget this year is 41.1 million dollars, for which it is reported there is a 3.6 million dollar shortfall, which is about nine percent. The announced response to this is to close 38 percent of the branch libraries? Clearly, more than meets the eye is going on here. Three million, six hundred thousand dollars is less than two tenths of one percent of the 2.4 billion dollar City budget, and hardly rates as a crisis forcing us to board up public institutions without a proper vetting of how important they are to our civic life.
As thoroughly explained in the enlightening book "Shock Doctrine" by Naomi Klein, governments and politicians have moved away from being honest with their citizens by creating false "crises" to force "reforms" on people that they could not do democratically. In a debate last year, Mayor Menino trumpeted the fact that he had not closed one library during our national economic meltdown. I pointed out that he had indeed closed the Kirstein library, and he retorted that it just moved to Copley Square. Will he use the same logic for these 10 branch libraries? He certainly didn’t run on a platform of closing 40 percent of our civic institutions. Closing libraries is the modern equivalent of book burning, as Adrian Walker’s bank robber subject John McGrath so aptly put it this week.
I believe the media is most to blame for this state of affairs. Why aren’t they asking these basic financial questions? As I and others such as the Municipal Research Bureau and the Massachusetts Taxpayers Foundation have been pointing out for years, we have an unsustainable financial model, especially when it comes to pensions and health care for government workers. This didn’t just happen in the last month, and it is no excuse to ram the shuttering of all these libraries down our throats without an honest, transparent analysis and discussion of our long-range civic goals and priorities. Last year at this time, City Hall was telling the press that we were facing 900 school layoffs and 200 police layoffs. As I wrote last year, this was again another fake "crisis" and was just being used to scare the populace so that the politicians looked good when they cut far fewer jobs, or none as in the case of policemen. I am saying it here now: the City of Boston is not going to close 10 libraries this year, City Hall is not being honest with the citizens, and if I am wrong I will personally donate $50,000 for books to the library system. I believe for the media to have their own sustainable economic model, they need to start doing their job and asking these questions, instead of asking where Tom and Gisele were last night.
We espouse that we are the Athens of America, but the recent news would suggest otherwise. We are talking about closing schools and closing libraries because of lack of money, but yet when two convenience store clerks are murdered the politicians are quick to come up with funds and proposed rules for requiring security cameras. I feel I am living more in Oceania than in Utopia. Yet the facts again point out the fallacy in their thinking. Surendra Dangol was killed in a convenience store with a security camera; it took 20 days to arrest his alleged killer. Gerardo Serrano was killed in a convenience store without a security camera; it took only four days to arrest his alleged killers. I didn’t hear a single politician ask about the cost of those proposed cameras and rules. It takes real leadership to say to a shocked and grieving public that to make a just and safe society we need to spend more on libraries and schools, and less on security cameras.
What is the solution? First of all, pray for Mother Nature to give us $7.5 million during this Easter season. What do I mean? Well, with help from Councilor Ayanna Pressley’s office I have figured out that we budgeted 15 million dollars for snow removal this year, and thankfully, we have only spent $7.5 million so far. So, if we can somehow make it through to Easter without breaking out the plows we will have a pot of gold that can help us survive the "crisis" for another year while we have a well-thought-out discussion on the future of libraries in Boston.
Mayor Menino has been talking about using eminent domain downtown; he could take back Heyward Place and put the $2 million his friend collects for parking fees tax free back into City coffers. We could ask why we are giving $30 million in tax breaks and grants to Liberty Mutual, or perhaps ask their CEO Ted Kelly to at least make a 3.6 million contribution from his $27 million dollar salary to the libraries in exchange for those credits. Most important of all, perhaps, we should ask how the taxpayers got put on the hook for $800 billion in TARP debt, but we couldn’t get 3.6 million dollars for libraries?
When my mother was working a full-time job and raising her three children on her own, we didn’t have money for a TV, let alone childcare. She had us go to the library after school and wait until she could pick us up. I sat for hours safely reading, learning, and imagining wonderful things. I wouldn’t want any child in Boston to lose out on that same sense of wonder, safety and potential that is enclosed within each and every library because of a dishonest, fake "crisis."
Kevin McCrea is a South Ender and former candidate for Mayor of Boston.
Recently it has been reported that there is an emergency fiscal "crisis" with the Boston Public Libraries and that 10 of the 26 branch libraries may have to be shuttered. But, the numbers do not add up, and there is no real emergency. The crisis is one of honest government, proper planning, and responsible investigative journalism.
First the numbers: according to the Boston Globe, the library budget this year is 41.1 million dollars, for which it is reported there is a 3.6 million dollar shortfall, which is about nine percent. The announced response to this is to close 38 percent of the branch libraries? Clearly, more than meets the eye is going on here. Three million, six hundred thousand dollars is less than two tenths of one percent of the 2.4 billion dollar City budget, and hardly rates as a crisis forcing us to board up public institutions without a proper vetting of how important they are to our civic life.
As thoroughly explained in the enlightening book "Shock Doctrine" by Naomi Klein, governments and politicians have moved away from being honest with their citizens by creating false "crises" to force "reforms" on people that they could not do democratically. In a debate last year, Mayor Menino trumpeted the fact that he had not closed one library during our national economic meltdown. I pointed out that he had indeed closed the Kirstein library, and he retorted that it just moved to Copley Square. Will he use the same logic for these 10 branch libraries? He certainly didn’t run on a platform of closing 40 percent of our civic institutions. Closing libraries is the modern equivalent of book burning, as Adrian Walker’s bank robber subject John McGrath so aptly put it this week.
I believe the media is most to blame for this state of affairs. Why aren’t they asking these basic financial questions? As I and others such as the Municipal Research Bureau and the Massachusetts Taxpayers Foundation have been pointing out for years, we have an unsustainable financial model, especially when it comes to pensions and health care for government workers. This didn’t just happen in the last month, and it is no excuse to ram the shuttering of all these libraries down our throats without an honest, transparent analysis and discussion of our long-range civic goals and priorities. Last year at this time, City Hall was telling the press that we were facing 900 school layoffs and 200 police layoffs. As I wrote last year, this was again another fake "crisis" and was just being used to scare the populace so that the politicians looked good when they cut far fewer jobs, or none as in the case of policemen. I am saying it here now: the City of Boston is not going to close 10 libraries this year, City Hall is not being honest with the citizens, and if I am wrong I will personally donate $50,000 for books to the library system. I believe for the media to have their own sustainable economic model, they need to start doing their job and asking these questions, instead of asking where Tom and Gisele were last night.
We espouse that we are the Athens of America, but the recent news would suggest otherwise. We are talking about closing schools and closing libraries because of lack of money, but yet when two convenience store clerks are murdered the politicians are quick to come up with funds and proposed rules for requiring security cameras. I feel I am living more in Oceania than in Utopia. Yet the facts again point out the fallacy in their thinking. Surendra Dangol was killed in a convenience store with a security camera; it took 20 days to arrest his alleged killer. Gerardo Serrano was killed in a convenience store without a security camera; it took only four days to arrest his alleged killers. I didn’t hear a single politician ask about the cost of those proposed cameras and rules. It takes real leadership to say to a shocked and grieving public that to make a just and safe society we need to spend more on libraries and schools, and less on security cameras.
What is the solution? First of all, pray for Mother Nature to give us $7.5 million during this Easter season. What do I mean? Well, with help from Councilor Ayanna Pressley’s office I have figured out that we budgeted 15 million dollars for snow removal this year, and thankfully, we have only spent $7.5 million so far. So, if we can somehow make it through to Easter without breaking out the plows we will have a pot of gold that can help us survive the "crisis" for another year while we have a well-thought-out discussion on the future of libraries in Boston.
Mayor Menino has been talking about using eminent domain downtown; he could take back Heyward Place and put the $2 million his friend collects for parking fees tax free back into City coffers. We could ask why we are giving $30 million in tax breaks and grants to Liberty Mutual, or perhaps ask their CEO Ted Kelly to at least make a 3.6 million contribution from his $27 million dollar salary to the libraries in exchange for those credits. Most important of all, perhaps, we should ask how the taxpayers got put on the hook for $800 billion in TARP debt, but we couldn’t get 3.6 million dollars for libraries?
When my mother was working a full-time job and raising her three children on her own, we didn’t have money for a TV, let alone childcare. She had us go to the library after school and wait until she could pick us up. I sat for hours safely reading, learning, and imagining wonderful things. I wouldn’t want any child in Boston to lose out on that same sense of wonder, safety and potential that is enclosed within each and every library because of a dishonest, fake "crisis."
Kevin McCrea is a South Ender and former candidate for Mayor of Boston.
Monday, July 20, 2009
Now Flaherty stealing my ideas!!
Between Flaherty and Yoon taking my ideas, and then the Mayor saying that he is already working on those issues after the Councilors bring them up, we may yet end up making this City better run!
Today in the Globe there is an article about Flaherty calling for the City to change over to the State health care plan.
The Financial Commission and the Boston Municipal Research Bureau have been telling the City to do this for quite some time.
Here is a link to my blog where I suggest we do this back in March.
The quality of coverage by the Globe might lead one to believe that they are not worth the $1 entry fee if one is interested in City politics.
Today in the Globe there is an article about Flaherty calling for the City to change over to the State health care plan.
The Financial Commission and the Boston Municipal Research Bureau have been telling the City to do this for quite some time.
Here is a link to my blog where I suggest we do this back in March.
The quality of coverage by the Globe might lead one to believe that they are not worth the $1 entry fee if one is interested in City politics.
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