Wednesday, November 14, 2007

Did the Mass Turnpike Authority Violate the Open Meeting Law When Approving Recent Toll Hikes?

During the October 29, 2007 meeting of the Massachusetts Turnpike Authority's Board, they voted to approve toll increases on the Massachusetts Turnpike, including an increase of $0.25 in the Allston-Brighton tolls as of January 1, 2008.

In so doing, however, the MTA Board may have violated Massachusetts's Open Meeting Law by meeting privately ("back-room meetings") with lawyers during a break in the public meeting. The nature of the Board's public meeting changed after the private meetings occurred, highlighting how substantive and key the private meetings appear to have been to the subsequent Board vote.

Boston Globe Story on MTA Board Meeting

Mac Daniel, Director of Communications for the MTA, confirmed the accuracy of the reporting in the Boston Globe story about the October 29 public meeting of the MTA Board. That story reported that a break in the meeting occured after two hours but before the Board vote on the toll increase. The story also reported that during the meeting break "several back-room meetings" occured between Transportation Secretary Bernard Cohen, "fellow board members and Turnpike Authority lawyers."

Daniel clarified that the break and the "back-room" meetings were not part of an Executive Session. In particular, he said, the MTA Board did not enter Executive Session at any time prior to the vote on the toll increases, but did enter Executive Session after the vote occurred.

How many people were meeting privately in the "back-room"? The Globe story states it was the Board chairman (Secretary Cohen), "fellow board members" (i.e., plural, so at least two), and MTA lawyers.

What was discussed in the "back-room" meetings? The Globe story does not make it clear, instead only noting the reasons given subsequent to the "back-room" meetings to support the toll increase:
Any delay in approving a hike would risk damaging the authority's bond rating and possibly lead to higher interest rates, authority lawyers said...

But [Cohen] seemed blind-sided when authority staff told him after two hours of debate that a delay would make it difficult if not impossible to begin collecting the new tolls by Jan. 1, the deadline set by bondholders.
Daniel confirmed that, early in the public meeting, Secretary Cohen was considering post-poning the Board vote on the toll increase for a month, but that he was later told that any delay in approving a toll increase could have a negative impact on being able to roll out the increases by January 1, 2008. Daniel also confirmed the Globe story that concerns over the MTA's bond rating factored into the decision to vote on October 29 on the toll increase. "Cohen initially agreed with the rest of the board... that a final vote could wait another month," reported the Globe. Secretary Cohen's position changed in the latter part of the public meeting -- after the "back-room" meetings had taken place -- to supporting the toll increases.

One person present on 10/29/07 has confirmed that the public in general was neither notified that the "back-room" meetings were taking place during the break nor were the public invited to attend them.

(Daniel did not respond to an additional request for information and comment related to the meeting. Official minutes [either draft or final] of the 10/29/07 MTA Board meeting were not available for this story; Eileen Fenton of the MTA explained that the minutes are only released once they are approved at the next meeting of the Board.)

Did the MTA Board Meeting Violate the Open Meeting Law?

The Massachusetts Open Meeting Law applying to state agencies is in Massachusetts General Laws Chapter 30A, Sections 11A, 11A-1/2, 11B, and 11C. The Attorney General has issued guidelines for understanding, interpreting, and applying the OML. Many informational resources about the OML can be found at the Massachusetts Trial Court Law Libraries site. Discussion about some other OML cases are discussed on the Brighton Centered Blog.

The basic text of the statute reads:
All meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section.

No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section. [M.G.L. Ch.30A, Section 11A1/2.]

Does the OML apply at all to the MTA Board? The Law gives the definition of "Governmental body" as:
a state board, committee, special committee, subcommittee or commission, however created or constituted within the executive or legislative branch of the commonwealth or the governing board or body of any authority established by the general court to serve a public purpose in the commonwealth or any part thereof, but shall not include the general court or the committees or recess commissions thereof, or bodies of the judicial branch, or any meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it, nor shall it include the board of bank incorporation or the Policyholders Protective Board. [MGL, Ch.30A, Section 11A]
As I understand it, the MTA Board is the governing board of an authority established by the State Legislature, so the OML appears to be applicable. (Note: I am not a lawyer, so I have not pored through case law on any of these issues.) A contrary argument might be made, however, based on the Supreme Judicial Court ruling that the MTA Board was "not part of the machinery of the government" when it considered the attempted firings in 2001 by Acting Governor Jane Swift of Board members Christy Mihos and Jordan Levy. It is unclear how that particular ruling of the SJC might impact the applicability of the OML to the MTA Board.

Last year, two unions took the MTA Board to court over allegations that the Board violated the OML when they discussed the issue of removing toll booths. The nature of at least some of Suffolk Superior Court Associate Justice Diane Kottmyer's rulings in the case indicate that the Kottmyer considered that the MTA Board is subject to the OML. Another instance from July 2007 indicates that Pam Wilmot, executive director of Common Cause Massachusetts, believed that the MTA Board was subject to the OML.

Possible Violations of the OML. Assuming that the OML applies to the MTA Board, then the "back-room" meetings during a break in the public meeting of October 29th appear to violate these provisions in MGL, Ch.30A, Section 11A1/2 because:
  • The "back-room" meetings were unannounced to the public in advance;
  • There was no clear indication that the public was invited to join the "back-room" meetings, or was allowed to do so;
  • A quorum of members of the MTA Board participated in the "back-room" meetings;
  • Issues related to their decision-making authority appear to have been discussed in the "back-room" meetings; and
  • The subsequent public meeting showed a change in direction relative to the public meeting prior to the "back-room" meeting.
According to the Globe story, at least three Board members (including Secretary Cohen) appear to have been in the "back-door" meetings, which would constitute a quorum of the five-member Board. Even if fewer than a quorum were present, the possibility of an intent to circumvent the quorum requirement ocould still be a violation of the OML -- as evidenced by recent litigation regarding the Boston City Council.

Did the direction of the Board's public meeting alter after the "back-room" meetings? The Globe reported:
For two hours of the three-hour meeting, the board seemed certain to delay the vote by a month...

Transportation Secretary Bernard Cohen, who chairs the board, reopened the public meeting and shifted course. Any delay in approving a hike would risk damaging the authority's bond rating and possibly lead to higher interest rates, authority lawyers said.

Summary. All said, it appears to me that the OML applies to the MTA Board; it further appears that the MTA Board violated the OML by holding these "back-door" meetings. Since their vote on the toll increase was made subsequent to the "back-door" meetings, a legitimate case can be made for invalidating their vote.

Is Anybody Investigating Possible OML Violations?

The Attorney General is charged with enforcement of the statute. (This differs from the the case of municipalities, where the District Attorney is charged with enforcement.) Complaints of violations of the OML must be made within 21 days of the meeting, i.e., by next Monday, November 19. The obvious first step for any such investigation by the AG would be to establish if the MTA Board is subject to the OML.

I asked the AG's press office whether they have received a complaint about (or are investigating) possible violations of the OML by the MTA Board. The press officer confirmed that no such complaint has been received to date by the AG's office. He could neither confirm nor deny, however, whether any such investigation is currently being undertaken by the AG's office since that information cannot be legally disclosed.

Does Anybody Care About the Toll Increase?

Since the MTA Board vote was taken, legislation has been introduced on Beacon Hill that would block the toll increases by freezing the tolls.

Locally to Allston-Brighton, State Representatives Kevin Honan and Michael Moran are co-sponsoring the House bill, while State Senator Steven Tolman is co-sponsoring the Senate bill.

Senator Tolman and Representatives Honan and Moran wrote a letter to Secretary Cohen on October 12, 2007, requesting a "Resident Discount Program" for residents of Allston-Brighton. The letter read, in part:
Given a long history of hosting this major highway with its negative effects, and recent proposal to increase the toll at the Allston-Brighton turnpike exit, it seems appropriate and necessary to explore some means of mitigating impacts on our community.
Representative Honan also testified before the MTA's October 12, 2007 meeting in Framingham. He argued that the MTA should first provide information on projected potential revenues, and study potential benefits from Governor Deval Patrick's proposal for consolidating parts of the state transportation. He also said he was "disappointed" with the failure of the MTA install sound barriers (e.g., along Lincoln Street) that he had requested previously be done.

Does anybody care about these toll increases? Sounds like a lot of State Legislators do, including ours in Allston-Brighton.

No comments: