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.

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.

Media Circus On the Way to the Bike Lanes Press Conference...

On my way to Mayor Thomas Menino's press conference about the new Commonwealth Avenue bike lanes, I passed by Boston Police's Brighton station D-14... and saw lots of TV trucks stationed outside along with media types milling about.

Huh?

There were lots of police vehicles around -- including many motorcycles -- and the parking lot alongside the station was partially blocked off. I could hear at least one helicopter overhead.

Since it was less than half an hour before the bike lane event, I assumed that Mayor Menino was visiting station D-14 first, particularly since today is the official day of the National Night Out celebration. I thought: No biggie. Don't stop to take a photo of the circus. Just pedal on.

I was wrong on pretty much all counts.

The D-14 media swarm was surrounding Clark Rockefeller (aka "???") who kidnapped his daughter a week-and-a-half ago and was caught Saturday in Baltimore, Maryland. After landing at Logan Airport, he was brought to D-14 station. The Boston Globe has the details:

After landing at Logan at 9:45 a.m., [Clark] Rockefeller was taken to the Boston Police station in Brighton. Television news helicopters hovered overhead as he arrived in a motorcade that included two cruisers and a motorcycle escort. Rockefeller sat in the back seat with a scruffy beard and stared straight ahead as motorcycle police pushed photographers away from the car.

Rockefeller's defense attorney, Stephen Hrones, met with his client for 30 minutes today and described him as calm and collected to reporters waiting for his arraignment later this afternoon in Boston Municipal Court. When asked about the kidnapping charge, the attorney said that his client had every right to be with his daughter.

Rockefeller was brought to Brighton for booking and processing because the D-4 station normally having jurisdiction over the location of the kidnapping -- Marlborough Street in the Back Bay -- is undergoing renovations, according to Jake Wark, Director of Public Affairs at the Suffolk County District Attorney's office. Brighton's D-14 station completed its own renovations earlier this year, and hence was ready for fingerprinting and all that. After his entourage visited beautiful Brighton, Rockefeller returned downtown to the Boston Municipal Court for his afternoon arraignment.

I have been mostly avoiding the Rockefeller kidnapping story in the past week-and-a-half, thinking of it as yet another story over-hyped by the media. It's easy to imagine why, since the seven-year-old daughter is so photogenic. Little did I know that the story would bring the media circus and helicopter spectacle out to Brighton Center.

BC Football Player Admits to Facts for Indecent Assault and Battery; Case Continued for Two Years

Boston College football player Brady Smith Wednesday admitted to sufficient facts in the charges of indecent assault and battery following an incident on April 19, 2008 when he allegedly broke into a woman's on-campus dorm room and "put his hand down her pants." Brighton Municipal Court Judge James Coffey ordered the case continued for two years rather than immediately send the case to trial -- meaning that, if Smith keeps his hands clean, he will not see any jail time.

Smith is one of four members of last season's BC football team to face criminal charges of assault and battery. The other three players' cases are pending.

Smith had originally been arrested by BC police, and subsequently arraigned, on rape and breaking and entering charges, to which he pleaded not guilty at the time of his arraignment. The Suffolk County District Attorney's office recommended the case be continued on the lesser charges of indecent assault and battery based on the evidence and the desire of the victim, who plans to complete her studies in the near future, to "resolve the case before she graduates," according to the Allston-Brighton TAB.

Smith's admission of sufficient facts in the case means that he would "likely be found guilty should [the case] go to trial," according to Jake Wark, press secretary for the DA's office. Smith's admission does not represent a change in his plea in the case.

The conditions imposed by the judge for the continuation of the case include a recommendation to the Department of Probation that Smith attend Alcoholics Anonymous meetings and regularly submit to urine testing both for alcohol and illicit drugs. Should Smith violate the terms of the continuance within the next two years -- such as re-offending -- then the judge could order the case be sent to trial.

Should Smith keep to the terms of the continuance, however, the charges would likely be dismissed after two years. Wark noted that the admission of sufficient facts and the continuance would stay on Smith's record after that time; sealing an adult's record could be requested by defense counsel, but would be unusual for an adult defendant.

After Smith's arraignment in April, BC suspended him from classes and he was permanently dismissed from the football team.

Two other BC football players, Gosder Cherilus and DeJuan Tribble, have their next court date on June 11th in the Central Division of the Boston Municipal Court. They were charged with assault and battery after an incident at The Greatest Bar in July 2007. Running back A. J. Brooks was scheduled to go to trial this month on assault and battery charges stemming from a November 2007 incident on-campus. Like Smith, Brooks was kicked off the team and suspended indefinitely from the school; Cherilus and Tribble, however, continued to play last season and both were drafted by the NFL last month to play Detroit and San Diego, respectively.


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

A Novel Way of Chronicling Disorderly Conduct

Seventeen people aged 17-25 were arrested on charges of disorderly conduct late Sunday night and/or early Monday morning in the Kenmore Square area following the Boston Red Sox's victory in the American League Championship Series, according to the Suffolk County District Attorney's office.

For some of them, the judge has given them a novel sentence to write a lot of sentences:

Roxbury District Court Judge Edward Redd ordered that the remaining seven defendants, most of whom are college students, write a five-page essay detailing what they have each learned from the experience of getting arrested and that they provide the court with written verification that their parents are aware that they have been arrested and charged in connection with this incident. Judge Redd also ordered that they stay away from Fenway Park over the duration of the season. They must provide the essay and parental notification of their arrest at their arraignment on Nov. 8.

I wonder if the judge at Brighton Municipal Court has considered similar sentences as punishment for arrests/convictions in our neighborhood?  How about an extra page for extra credit to have bail reduced?  How will he mark them down for mis-spellings, grammatical errors, run-ons, and sentence fragments?  Five pages...  single- or double-spaced?  Maximum font size?  Punish the writing-challenged by having them share a cell with Bubba?  Will he require them to use the spelling "Socks" or "Sox"?

And in order to pass a sentence, must Judge Redd have read them first?


Via UniversalHub.

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.

Crowdsourced Questions for Dan Conley, Suffolk County District Attorney

Adam Gaffin's final five questions submitted to DA Dan Conley can be found here. Conley agreed to respond within one week. The questions were voted on by people over the internet; see previous post on the topic.

Q/A With Dan Conley, Suffolk County District Attorney

A local blogger, Adam Gaffin (adamg) of "Universal Hub", has arranged for a written question-and-answer with Suffolk County District Attorney Dan Conley.

People have submitted questions already, and he has whittled it down to ten. Vote for your top five; the top five questions go to the DA. Conley will have a week to answer those five questions.

No, I did not submit any questions to Gaffin's project. But I did vote.

Update (6/30/07): Journalist and commentator on the media, Dan Kennedy of Northeastern University (and blog MediaNation), refers to this process of voting on the questions as "crowdsourcing." I've never heard the term before, and the poor wikipedia entry doesn't seem entirely applicable. A neat word to watch, though.

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.