Judge Rules BC Task Force a Government Body -- At Least For Now

The City of Boston was dealt several setbacks recently in a lawsuit against them over the city's approval of the Boston College institutional master plan.

In the case of Galvin et al. vs. Boston Zoning Commission et al., Superior Court Justice Charles Spurlock [right] issued a preliminary ruling on June 29th that there are "sufficient facts to support an inference" that the BC Task Force, an official advisory body of the Boston Redevelopment Authority (or, in the judge's words, "a subcommittee of the BRA"), is a government body, and hence subject to the state's Open Meeting Law. The ruling was issued in response to a series of pre-trial motions by lawyers on both sides of the case.

The ruling is significant in that it is consistent with the ruling of Suffolk County District Attorney Dan Conley in June 2007 that the BC Task Force and the Harvard Allston Task Force are government bodies that are subject to the state's OML, a ruling that the city continues to dispute.

Two Brighton residents, Patrick Galvin and Mark Alford, filed their lawsuit against the city in July 2009 in response to the city's approval of BC's IMP. The BRA Board voted in January 2009 to approve the IMP; the Boston Zoning Commission approved it, with modification, in June 2009; and Mayor Thomas Menino subsequently signed it.

Justice Spurlock's order, while not a final ruling in the case, indicates that the task force will continue to be a defendant in the lawsuit. To date the task force has not, to my knowledge, responded at all to the complaints nor have they been represented in front of the court by legal counsel.

Implicit in the judge's ruling is that the lawsuit will go forward into additional phases, such as discovery and, potentially, trial. This alone suggests that there may be a protracted legal battle over BC's IMP that could impact the university's ambitious expansion plans.

This preliminary ruling by Justice Spurlock appears to be a major headache for the city, since its lawyers argued strongly to try and keep the task force out of the lawsuit. Now not only is the task force in this lawsuit as a defendant, but the judge has made an initial ruling that would appear to imply that all of the BRA's task forces are subject to the state's OML -- and, by extension, the state's Public Records Laws and ethics laws.

Let's hope the task force members -- now confirmed by the preliminary ruling to be part-time, unpaid municipal employees -- are doing a better job at retaining their emails than some other city employees who have recently been in the news.


Other Rulings by Judge

The judge also turned down two separate motions by the defendants that would send the case to Land Court and expedite it.

While not noted in the ruling, the judge appears to have allowed Boston College earlier this spring to join the lawsuit as a defendant without objection from the plaintiffs (as expressed in a December 2009 hearing). BC's lawyers have been filing motions repeatedly with the court -- including the Land Court and expedition motions -- actions that are normally allowed only for parties to the case.

The plaintiffs did not, however, win on every issue. The judge: ruled that their allegation of OML violations were filed too late according to the statutory 21-day limit; rejected their attempt to make a claim for violations of civil rights and their rights under the Equal Protection Clause; said that he would not consider possible criminal violations of the state's ethics laws, since those should be brought in front of the district attorney instead; that the individual members of the task force could not be named separately as co-defendants in the lawsuit, appearing to lift their individual liability (while not ruling on the government body's collective liability); and that the task force itself did not impact the rights of the plaintiffs, because the task force was only an advisory body to the BRA.

I suspect that that last ruling will be hotly contested in the case, and that we haven't heard the last of it.

The ethics issue, too, promises to be complicated as the case moves forward. While ruling that this civil action is not the appropriate venue for a criminal allegations of conflict-of-interest against individual members of the BC Task Force, the judge also stated case law that ethics civil violations are administrative matters that are rectified by processes within governmental agencies. But if the BRA Board and BZC relied upon recommendations from their advisory panel (the task force) that were allegedly biased due to financial conflicts-of-interest, then nothing in the ruling appears to prevent the plaintiff's arguments from going forward in seeking to invalidate approval of BC's IMP in a tainted process.

Spurlock was assigned to the case earlier this year after the previous judge, Christine Roach, recused herself after repeatedly suggesting her potential conflicts to the lawyers.


Update: The Boston Bulletin has a story on the ruling.

Judge Repeatedly Suggests She Be Recused in BC Expansion Lawsuit Case

At Tuesday's first hearing in the case of Galvin et al. v. Boston Zoning Commission et al., Judge Christine M. Roach considered three motions by the defendants in the lawsuit: adding Boston College as a defendant in the case (plaintiffs were unopposed); whether the Boston College Task Force should be removed from the defendants in the case (plaintiffs opposed); and whether the whole case should be moved to land court instead of superior court (unclear plaintiffs position, but I suspect they were opposed).

In the process of hearing the arguments about the task force's status as a governmental body, Judge Roach repeatedly offered up reasons why the attorneys could ask her to be recused from the case: first, that prior to becoming a judge, she was a commissioner in the State Ethics Commission in 2003-5; and second, that she has previously represented the City of Boston (although not the BRA or BZC) when she worked in private practice.

It seemed to me that the judge really wanted to be asked to be recused from the case. It was as if she were saying: Please, please, will somebody ask for me to be recused? Here are all the reasons you could use to justify recusal! I won't be offended!

Judge Roach's ethics background may be relevant because the defendants introduced an opinion letter on Monday -- marked "confidential" -- sent by the legal counsel of the State Ethics Commission that reaches a different opinion on the applicability of the state's Open Meeting Law from the Suffolk County District Attorney's office June 2007 advisory opinion. Violations of the OML by the task force are among the allegations in the lawsuit.

The judge's previous litigation work for the city also may be relevant because two of the named defendants are city agencies (Boston Redevelopment Authority and Boston Zoning Commission), while a motion being discussed Monday had to do with whether or not a city advisory body -- the Boston College Task Force, an official advisory body to the BRA's Board -- would be kept as a defendant in the case.

The judge added to these reasons by further pointing out that the current year's docket is ending later this month, so that the continuation of the case will almost certainly be passed on to another judge in 2010.

She put a deadline of next Monday for the parties to file motions both on whether or not she should be recused and whether or not she should rule on any of these three motions before the court.

And, no, Jan Schlictmann did not make a court appearance Monday for the plaintiffs.


No Obvious Relief to Task Force Members

During Monday's hearing, Judge Roach suggested that one possible ruling the court could enter would be to remove the task force as a defendant, but still allow the usual discovery process. If discovery later resulted in the task force appearing to be involved in the substance of the case, then they could be re-entered as defendants.

This hypothetical outcome would still seem to entail some kind of testimony by members of the task force during the discovery process, regardless of whether or not they are named as defendants. So removing the task force as a defendant in the case might not necessarily get them off the hook.


Image of gavel by vitualis provided through a Creative Commons license.

'A Civil Action' Attorney Schlictmann Enters Lawsuit Over BC Expansion

Two Brighton residents, Pat Galvin and Mark Alford, sued the City of Boston earlier this year over the review process and approval of Boston College's expansion plans into the former St. John's Seminary property. The plaintiffs object to BC's plans to construct athletic stadiums and dormitories on the land, as well as the city's review process of the university's institutional master plan which they assert violated the state's Open Meeting Law.

Galvin and Alford filed their lawsuit in Suffolk Superior Court pro se, meaning that they were representing themselves.

No longer. As of November 11 -- in documents I saw at the courthouse on Thursday -- they are represented by two lawyers: Orestes Brown and Jan Schlictmann [right].

Yes, that Schlictmann. The guy who was the protagonist of the best-selling book "A Civil Action" by Jonathan Harr and the movie starring John Travolta [left] as Schlictmann.

Schlictmann was portrayed in the book as being so obsessed with the Woburn case that he drove his firm (and many of its employees) to the verge of financial bankruptcy -- just before the court ruled in his clients' favor. The book opens with the scene where Schlictmann's Porsche is repossessed on the morning before the verdict.

More recently, Schlictmann has been in the news on two other high profile, local cases:

But if people thought Schlichtmann might mellow after being immortalized in Jonathan Harr’s classic piece of reporting and the movie of the same name, forget about it. Schlichtmann is still fighting, only now his adversaries include the Massachusetts Turnpike Authority over proposed toll increases, ink and paint manufacturers over a factory explosion that ravaged a Danvers neighborhood, and former colleagues over legal fees.

Schlictmann has not had much success in the turnpike lawsuit.

His presence in the lawsuit of Galvin et al. v. Boston Zoning Commission et al., however, seems to be an indication that the plaintiffs are interested in a no holds barred pursuit of their case at every step of the way.

This case just got way more interesting.


Image of Jan Schlictmann from his page on the Legal Broadcast Network. Image of John Travolta in A Civil Action from imdb.com.

BC Task Force Meets in Secret and Relents on 150-Bed Dormitory

The Boston Redevelopment Authority's Boston College Task Force will recommend to the BRA Board approval of 150-bed dormitory on the former St. John's Seminary land purchased by BC in 2004-7, while recommending against an additional 350-bed dormitory on the property. They will further recommend that the BRA Board require that a different site be adopted for the 350-bed dorm, rather than allow it to be re-proposed by the university after conducting a site study.

The recommendations were crafted as the result of a secret meeting held by the task force last week -- and through subsequent email activity and phone calls -- according to several members of the task force.

Such meetings -- unannounced and not open to the public -- in order to deliberate, vote, and craft recommendations on various elements of BC's Institutional Master Plan, appear to be in violation of the Massachusetts Open Meeting Law for municipalities (MGL 39, Section 23B), according to an opinion issued on June 1, 2007 by Suffolk County District Attorney Janis Noble. (In the statute, the district attorney is charged with its enforcement.) The DA's opinion rejected the BRA legal counsel's arguments that the task force should not be subject to the law.

Several members of the task force have repeatedly stated during the past year-and-a-half that they would not follow the OML, relying on the BRA legal counsel's position instead of the DA's opinion.

The task force's position on the 150-bed dorm is a concession by the task force from their previous positions in a series of letters they wrote between 2004 and September 2008. The recommendations are described in a letter released by the task force in advance of their presentation to the BRA Board Thursday afternoon, part of which reads:

1. Working with the BRA, the Task Force and the community, Boston College must house the remaining 350 students not accommodated by its current housing proposals on its traditional campus. The Task Force pointed to multiple sites for additional housing on the traditional campus (page 13 of our letter of September 5, 2008). A majority of the Task Force accepts the College’s plan to locate a 150-bed dormitory on the Brighton campus as a means to house all of its undergraduate students on-campus by 2018. The Task Force recognizes that this reverses our long-standing position on housing students on the so-called Brighton campus; we also recognize widespread community opposition to this proposal. In making this most difficult concession, the Task Force believes that the College should act decisively to forge common ground with the community by accepting an affirmative obligation to house 350 more students on its traditional campus.
2. Given the clear sensitivity to housing students on the so-called Brighton campus, the proposed residence hall must be a “dry dorm” where alcohol is prohibited.
3. The siting of the 150-bed dormitory needs to be sensitive to the landscape and physical features of the former Archdiocesan grounds. The historic stonewall, for example, needs to be preserved.

BC has resisted preservation of those stone walls along Commonwealth Avenue because they instead wish to have the roadway widened in order to allow for the "Boston College" T station (the terminus of the Green Line "B" train) to be moved into the center of the roadway.


Image of "The Secret And Magic Circle Meeting Begins" by :Duncan provided through a Creative Commons license.

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.]

Applicability. 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.

Governor Patrick Defying Public Records Law

Massachusetts Governor Deval Patrick has requested advisors to assemble a set of "completed studies" of gambling for his perusal, as he ponders what to do with the Wampanoag proposal to put a casino in Middleborough. (Not Middleboro, as the Boston Herald thinks to spell it.)

The Boston Globe got wind of this and took the obvious next step: requesting copies of those documents under the Massachusetts Public Records Law. The request certainly falls within the public interest: I would be interested in knowing what information is contained in them in order to understand the reason why the State should, or should not, allow slot machines in the proposed casino.

Governor Patrick's lawyers have decided to refuse to provide the documents, citing an exemption clause for executive privilege. (Oh, no, Governor Patrick sounding like President Bush!) This clause is described in the "Guide to the Massachusetts Public Records Law."

The Supervisor of Public Records, in the Public Records Division off the Office of the Secretary of the Commonwealth, oversees compliance with the Law. The Boston Globe has appealed to the Supervisor the Governor's refusal to provide the documents.

While it is possible that a few pages of documents might have been written by advisors to Governor Patrick in order to help him understand the gambling studies and their impact on policy-making, the gambling studies themselves are most likely public records and hence not exempt. The executive privilege exemption in the Guide reads:

Exemption (d) provides a limited executive privilege for policy development. It applies to:

inter-agency or intra-agency memoranda or letters relating to policy
positions being developed by the agency; but this sub-clause shall not
apply to reasonably completed factual studies or reports on which the
development of such policy positions has been or may be based.

Factual studies are not exempt from the public records law, but memoranda or letters relating to them may be. The "completed studies" on gambling sure sound like the former, not the latter. I think the Governor is going to lose this one, but who knows how long it will take for the Supervisor to order the records released.


In an odd coincidence, the Boston Globe also reported on how the executive director of the state's pension, Michael Traviglini, will propose for a boost in his salary -- and possibly also extremely lucrative performance bonuses. Traviglini doesn't want to release his salary proposal in advance of a meeting with the Pensions Reserve Investment Management Board. "It is just a proposal, and there is nothing in the public meeting law that proposals are public," he said. I think he meant the Massachusetts Open Meeting Law.

Yes, his point might be valid, but the copy of the proposal is public under the Public Records Law at the moment it is in the hands of a state official, which he is. A better argument of his should have been that the salary proposal represented a personnel document, some of which can be exempt from the Public Records Law under exemption (c) as described in the Guide:

Generally, personnel information which is useful in making employment decisions regarding an employee is sufficiently personal to be exempt pursuant to the first clause. Such information may include employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information.

But note the other point made in the Guide:

Historically, this office has broadly interpreted the personnel exemption, however, based on more recent judicial decisions, a more narrow interpretation is necessary. The nature of some materials and the context in which they arise take them beyond what the Legislature contemplated when exempting personnel information.

The salaries of state employees are public information, which is quite obvious when you know that the Boston Herald requested them and published them in an online database. But is a salary proposal a public document? I suspect yes, but I'm not sure; it would, nonetheless, be a stronger case for Traviglini to argue for an exemption via this route.

A day later, the Glober reported that State Treasurer Timothy Cahill killed the salary proposal.


These two cases show how often public officials, even a lawyer Governor, often mis-understand the State's Open Meeting Law and Public Records Law.


UPDATE (8/9/07 9:00 am): The Boston Globe ran an editorial this morning furthering their argument that Governor Patrick should release the gambling studies under the Public Records Law:

The administration is splitting hairs by arguing that the completed studies are exempt from public disclosure as part of the governor's "deliberative process." Transparency will be essential if casino gambling is to succeed in the Commonwealth.

For more information on the state's Open Meeting Law, click on the label below.

Boston College Institutional Master Plan: Links

Various links for Boston College (BC) Institutional Master Plan (IMP):

• All Postings Related to Boston College's Institutional Master Plan (IMP)
  
• Boston College's Master Plan: Housing
• Boston College's Master Plan: Athletics
• Boston College's Master Plan: Parking
• Boston College's Master Plan: Demolishing Houses on Foster Street
• Pictures From Walking Tour
• Massachusetts Open Meeting Law

Q/A with Suffolk County DA Dan Conley

Suffolk County District Attorney Dan Conley has responded to five crowdsourced questions put together by Universal Hub's Adam Gaffin.

I was particularly curious about the question submitted (not by me) about the Open Meeting Law:

Question: Why does your office not prosecute violations of the Open Meeting Law? Or, if you don't have the resources to devote to such prosecutions, how about providing some advice and assistance to the citizens who are willing to take up the cause of transparency in government?

DA Conley: We do handle open meeting law complaints and, through it, we do our best to foster transparency and accountability. The open meeting law is very broadly written - and intentionally so - but its fundamental purpose is to ensure that citizens have access to the decisions made by their representatives. There are few state laws so important to the practice of democracy, and I was very glad to learn that so many Universal Hub readers voted for this question.

As District Attorney and as a former member of the Boston City Council, I can tell you from first-hand experience that very few violations of the open meeting law are intentional. Most people in government try to act in the spirit of the law, but because the law is broadly written, it can sometimes lead to disagreements over the interpretation and applicability of the law even among reasonable, well-intentioned people (including lawyers). There is also sometimes misunderstanding over what the remedies the law provides. It can impose fines on institutions found in violation, but rarely against individuals; it can order a correction of any past transgressions, usually by making public any meeting minutes or information previously withheld; and it can order an end to any practices not in keeping with the law. As DA, I've found the best course is usually to explain to officials, in writing, the rules by which they must abide and bring them into voluntary compliance.

My advice to citizens who really take this issue to heart - and, in fact, to every citizen - is to participate in the life of your community. It's a rewarding experience and one that, I think, will reinforce my contention that most of those in public office really do care about what the average resident thinks and therefore genuinely wants as open and transparent a process as possible.

Beyond that, should you encounter what you feel is a violation of the law, first bring it to the attention of the offending agency. Document your experience in a letter, then follow up with a phone call. If the agency or its representative is not responsive, then don't hesitate to bring it to my office - we can and will take action.

A-B TAB Reports Extensively on Open Meeting Law Issue

The Allston-Brighton TAB has published a substantial piece on the Open Meeting Law issue and the BRA institutional task forces. It's nice to see extensive reporting like this in the local paper!

The TAB article quotes Ray Mellone, chair of the Harvard Allston Task Force, as still planning on holding private meetings as a periodic part of that task force's metings. It also quotes Jean Woods, chair of the Boston College Task Force, as confirming both that a private Executive Committee meeting had occurred recently and that private meetings were an integral part of BC Task Force operation.

There are obviously some legal arguments to be sorted out, since both the DA's office and the anonymous, third-party attorney quoted in the TAB article have cited case law in support of their opposing conclusions.

It'll be interesting to watch how this all plays out. When the issue came up on Monday, it sure did cause a lot of strong emotions to be expressed.

Harvard Allston Task Force Chair Will Defy District Attorney's Instructions

The Boston Globe ran an article on Friday that the Suffolk County District Attorney's office wrote a letter to the Boston Redevelopment Authority declaring that the BRA's institutional task forces are subject to the Open Meeting Law. As I blogged on Friday, the June 1, 2007 letter by Assistant District Attorney Janis Noble also directed the BRA to instruct the task forces that they were subject to the OML, and agree to conduct future meetings in public.

We learned at last night's public meeting of the Harvard Allston Task Force that the BRA intends to do neither.

Gerald Autler, Senior Project Manager for the Boston Redevelopment Authority, said that it continues to be the position of the BRA that the institutional task forces are not subject to the OML. He said that he wanted to let the lawyers from the BRA and DA's office sort out the legal issues; in the meantime, however, he would "leave it up to the chair [of the Harvard Allston Task Force] to decide" if they would continue to hold private meetings without public notice or attendance. Strike #1: no instructions to the Harvard Allston Task Force on applicability of the OML. I don't believe he even provided them with copies of the letter, or copies of the OML, or anything like it... he's keeping them in the dark.

Ray Mellone, chair of the Harvard Allston Task Force, said that he would continue to hold meetings closed to the public as he saw fit. "I have no reason to suspect that [we] don't have the right to meet in Executive Session... I am not going to say that we are not going to do it again." He even stated that they would meet privately next Monday, June 18, with Harvard representatives... conveniently failing, of course, to tell the public when and where the meeting will take place. Strike #2: the Harvard Allston Task Force will continue to hold private meetings with the developer, Harvard.

While Autler and Mellone appeared to want the meeting to end on a positive note, a number of attendees of the meeting voice their concerns and objections over this defiance of the DA's instructions.

"District Attorney Daniel Conley is the chief law enforcement officer in this district," said Gregory Glennon, a candidate for Boston City Council and an Assistant District Attorney himself. "To disregard the chief law enforcement officer is outrageous."

Allston resident Tommy Lally offered an explanation for why the community wants all the meetings to be open: "It is not that we don't trust you," he said, speaking directly to task force chair Mellone. "There is a lot of mistrust in this room, but it is not directed towards you. [It is] directed towards the BRA and Harvard."

A solution was offered by two task force members, who said that they saw no reason that next Monday's meeting couldn't allow public attendance (although without opportunity to comment during the meeting). Their suggestion was brushed aside by Mellone.

As Glennon noted, the next step in the process is for the BRA to respond formally to the legal opinion expressed in the letter from the DA's office. Stay tuned.

Suffolk DA: BRA's Institutional Task Forces in Violation of Massachusetts Open Meeting Law

The Boston Globe reported today on an opinion issued by the Office of the Suffolk County District Attorney, Daniel Conley. The June 1, 2007 letter states that two of the Boston Redevelopment Authority's institutional task forces -- the Harvard Allston Task Force and the Boston College Task Force -- are subject to the Massachusetts Open Meeting Law (G.L. c. 39, Sections 23A,B,C). The argument follows closely the Attorney General's Guidelines on interpreting and applying the Law.

The DA's office's opinion further identifies a series of violations by each of the two task forces. The most serious of the alleged violations were holding secret meetings -- not announced publicly in advance, and to which the public was not allowed to attend. In at least one meeting by each of the two task forces, they met privately with both the BRA and the institution (Harvard University or Boston College).

The DA's office's opinion was the result of two complaints lodged by me on March 1, 2007 (regarding the Harvard Allston Task Force) and April 18, 2007 (regarding both task forces). A more recent complaint of a violation was not included in the opinion, presumably because insufficient time had elapsed to provide the BRA to respond to the factual basis for that allegation. I have reason to believe that there have been one or two additional complaints filed with the DA's office from persons and/or organizations.

No, I did not tell the Boston Globe about the DA's opinion; they found out about it on their own, decided to write a story, and then called me.

I think the opinion issued by the DA's office can be summarized very simply:

The BRA's institutional task forces should conduct their public business in public, not in private.

The opinion instructs the BRA:

1. To fix the various past violations by publishing minutes of all meetings, both public and private, that have been held;
2. To instruct the task forces on the applicability of the Open Meeting Law and its requirements;
3. To take steps to prevent future violations; and
4. To agree to conduct future meetings in public.
   

Personally, I don't understand why the BRA might be motivated to encourage those advisory bodies to hold secret meetings -- which are now clearly identified as in violation of the Law -- with the BRA and the universities. Maybe such speculation should be left to conspiracy theorists, but it sounds like they are trying to push processes, such as secret meetings, to pursue some "unknown" agenda of the BRA. I wish they would go back to the regulatory duties of their agency "reviewing proposed development projects," rather than possibly pushing the agenda of "encouraging growth industries."

Transparency in government is a good thing that should be supported by the public and public officials alike. It dismays me that our public agency, the BRA, seems opposed to the concept. Even if they argue that the task forces are not subject to the Law, they could easily instruct the task forces to follow all of the Law's requirements voluntarily as a matter of good public policy.

Finally, I sincerely doubt that the members of these two task forces were knowingly conducting their meetings in violation of the Open Meeting Law. The burden should rightly have been on the BRA's legal counsel to advise the task forces accurately on the Law and what it requires of them. I hope that BRA's legal counsel now puts this problem behind them by issuing clear guidelines to the task forces on how to conduct their meetings consistent with the Law.

See a previous posting for more information on the Massachusetts Open Meeting Law.

Who Else Is Violating the Massachusetts Open Meeting Law?

Who has been violating the law lately? See the article at Massachusetts Common Cause, which reprints Jack Flynn's article for The Republican:

In Springfield, the state-run Finance Control Board voted behind closed doors last year to give Schools Superintendent Joseph P. Burke a $13,000 raise and one-year contract extension.

After an appeal by The Republican, Hampden District Attorney William M. Bennett ruled that the vote should have been taken in public. He ordered the board to avoid any further violations.

In Boston, the City Council was caught skirting the law 11 times during a two-year period. In a 20-page ruling last year, Suffolk Superior Court Judge Nancy Staffier Holtz slapped the council with an $11,000 fine after concluding that the violations were intentional.

And in Amherst, the Select Board suffered two rebukes from Northwestern District Attorney Elizabeth D. Scheibel for illegally using e-mails to conduct business - once in 2005 to discuss the July 4 parade, and again in 2006 to discuss the Amherst Survival Center.

And in a report back in 2006:

Norfolk County District Attorney William Keating’s office has investigated 97 allegations of Open Meeting Law violations in the past five years, and last year found five such violations. Plymouth County District Attorney Timothy Cruz’s office investigated 106 in the past five years and found 24 violations.

Here are a few more:

• "Georgetown School Committee's student affairs and activities subcommittee violated the state's Open Meeting Law when it failed to file and post notices for two meetings this year." (Boston Globe 11/19/06)
  
• Needham Selectmen "violated the Open Meeting Law on three occasions in 2004 by discussing in secret session raising the cap from 10 years to 20 years on the lease of town-owned land. The golf club leases 58 acres from Needham." (Boston Globe 4/12/07)

Regarding the Boston City Council's violations, the Boston Globe article 3/28/06 summarizes them:

According to the lawsuit, the City Council held 10 closed-door meetings -- from June 3, 2003, to March 24, 2005 -- to discuss a request by the Boston Redevelopment Authority to renew its urban renewal program.

The suit also alleges that the City Council held a secret meeting on Jan. 20, 2005, to discuss the exposure of three Boston University lab workers to bacteria from tularemia, an illness caused by exposure to rabbits.

The problem is that there is no state requirement for collecting and tracking complaints of violations of the law. At least Massachusetts Common Cause is attempting to do so as a watchdog group.

The Massachusetts Open Meeting Law

A number of people have been asking about the details of the Massachusetts Open Meeting Law.

There are three separate laws. The one relating to Cities, Towns, and Districts is Massachusetts General Laws, Chapter 39, Section 23B. Some terms are defined in Chapter 39, Section 23A.

The Attorney General has issued a set of guidelines on interpreting and applying the Open Meeting Law.

There is case law referred to in the Attorney General's guidelines which specifies that committees (or subcommittees), created by an agency that is itself subject to the Law, are also subject to the Law, even if they are only advisory committees. [See Nigro v. Conservation Commission of Canton, 17 Mass. App. Ct.433 (1984).] As stated in the Attorney General's guidelines:

The fact that the jurisdiction of the subcommittee or special purpose committee extends only to making recommendations to the parent governmental body does not render the Law inapplicable.

What to Look For

This Law is there to protect the public... including you. Here are the specifics of what you should expect for how meetings are conducted when an agency -- or a committee or task force established by it -- is subject to the Law:

1. All meetings are open to the public.
2. All meetings are announced to the public at least 48 hours in advance, where Sundays do not count.
   
3. All meetings have agendas likewise announced at least 48 hours in advance.
4. Summaries of all meetings will be taken, and made available to the public upon request. A reasonable time frame is 2-4 weeks to write and approve the summaries, and 10 days to respond to a public request for the document.
   
5. A quorum of committee members is half, unless the committee otherwise issues instructions in advance.
6. The committee may not enter into Executive Session, except for nine (9) narrow reasons. Basically, the reasons are so limited that it is unlikely that an advisory committe or task force would ever have justification to enter into Executive Session.
   
7. If desiring to enter into Executive Session, this must be preceded by a public meeting in which the reason for doing so is given, discussed, and a roll call vote is taken by the members.
8. Summaries of Executive Session also must be written down. They are to be released to the public once the reason for entering Executive Session no longer applies.

What you cannot expect is the opportunity for the public to talk at an open meeting. The committee itself decides who they recognize to speak at their meetings, and no time is required to be set aside for public comment. The exceptions to this, for example, are the public meetings that are required to be held in direct response to each regulatory filing under Article 80. Most task force meetings are not in this latter category.

What to Do If There is a Violation

The District Attorney is charged with enforcing this Law (for Cities, Towns, and Districts). Members of the public who believe that the Law has been violated should contact the District Attorney's office; the Appellate Division usually handles the inquiries. Alternatively, three members of the public may file suit in court. A court may issue an order invalidating any action taken at a meeting that violates the Law, but it is necessary for the complaint to be registered within 21 days of public knowledge of the infraction. Court hearings on Open Meeting Law cases are required to be on an expedited timetable.

Since I have been involved in this to some extent recently, I encourage members of the public who believe the Law may have been violated by one of the task forces to contact me to discuss the issue. Research I have done into the public watchdog groups indicates that most violations are inadvertent: a particular committee does not realize that they are subject to the Open Meeting Law, or they do not know what actions they are required to follow to be in compliance.

More Information

More information can be found at the Massachusetts Common Cause website for their project, "Massachusetts Campaign for Open Government".