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.

City Unsuccessfully Sought to Remove BC Task Force From Lawsuit

The City of Boston unsuccessfully sought, in an emergency motion, to remove the Boston College Task Force from the list of defendants of the lawsuit filed earlier this summer by Brighton residents Patrick Galvin and Mark Alford over the city's review and approval of Boston College's institutional master plan.

The city's corporation counsel and outside legal counsel filed a motion on October 19th as an emergency motion seeking to "cure the misjoinder and dismiss as a defendant the improperly named BC Task Force."

The emergency motion was rejected on November 13th with a hand-written notation -- by the judge in the case, I assume, although I cannot read the signature -- on the court documents stating that:

There are no emergencies in this case. And the court will entertain no further emergency motions. Any and all pending motions shall be heard on the hearing date currently scheduled for 12/14/09. The parties may submit any [revised?] pleadings up until 12/11/09.

The original lawsuit named the Boston Zoning Commission, Boston Redevelopment Authority, and Boston College Task Force as defendants. Boston College has filed a motion with the court to enter the case as an additional defendant.

According to that notation, the parties are due in Suffolk Superior Court today for a hearing on the matter. Based on the court documents to date that I have inspected, I expect the hearing to address two substantive issues: whether or not to remove the BC Task Force as a defendant in the case; and whether or not to add Boston College as an additional defendant in the case. And assuming the case goes forward, they will probably also begin to set up a series of substantive hearings on various elements of the lawsuit.

BC Files With Court to Enter Lawsuit Over IMP Approval

Boston College filed court papers last month in order to join the lawsuit filed by two Brighton residents against the city of Boston over it's approval of BC's institutional master plan.

Those two Brighton residents, Patrick Galvin and Mark Alford, filed their lawsuit with the city in Suffolk Superior Court in July over the city's review and approval of BC's IMP earlier in the year. The Boston Redevelopment Authority's Board voted to approve the IMP in January and the Boston Zoning Commission voted to approve the IMP in May and June; both the BRA and the BZC are named as defendants in the lawsuit. Mayor Thomas Menino signed his approval of the IMP in June, although neither he nor his office are named as defendants.

BC was not named as a defendant in the lawsuit, but in the motion they filed with the court on November 9th they seek "leave to intervene as a defendant." They assert in the motion that they meet the requirements "for both intervention as of right and permissive intervention."

No response regarding BC's motion had been filed by the plaintiffs with the court as of last Thursday.


Big Gun Lawyers Involved in Case

BC was represented in the motion by legal counsel from the large law firm Goodwin Procter LLP. In their court filings, Goodwin Procter has at least two partners -- Anthony M. Feeherry and Lawrence E. Kaplan -- involved in the case, as well as two other associates.

I reported on Friday that the plaintiffs are now themselves represented by counsel which includes Jan Schlictmann, the attorney who was the subject of the best-selling book A Civil Action by Jonathan Harr.

The city is in various documents represented by its own Corporation Counsel as well as a smaller firm Rosenberg, Schapiro, Englander, Chicoine & Leggett, P.C -- which appears to have the direct involvement of two of the named partners, Edward S. Englander and Denise A. Chicoine, in the case.

With all those lawyers involved in the case -- particularly the partners -- I would be willing to bet that quite a lot of money is being spent on both sides.

Two Brighton Residents Sue City Over Boston College Expansion

Two Brighton residents, Patrick Galvin and Mark Alford, have jointly sued the City of Boston over its approval of Boston College's expansion plans into the former St. John's Seminary land purchased by BC in 2004-7 from the Archdiocese of Boston.

The suit was filed in Superior Court Thursday afternoon. It names three defendants, all official governmental bodies of the City of Boston: the Boston Redevelopment Authority, whose Board approved BC's Institutional Master Plan in January 2009; the Zoning Commission, which approved the IMP in May 2009; and the BC Task Force, an official advisory body to the BRA Board (and appointed by Mayor Thomas Menino), who wrote a letter to the BRA Board generally supporting most of the elements in BC's IMP.

Mayor Menino was not named as a defendant in the suit, which is a bit surprising (to this non-lawyer) given that he also had to approve BC's IMP. He objected to several details of the IMP as initially approved by the Zoning Commission; the ZC later approved modifications, and then Mayor Menino formally signed off in June 2009.

The plaintiffs own property on Lake Street abutting the former St. John's Seminary land BC refers to as their "Brighton Campus." BC's approved IMP calls for construction on that land of athletics facilities (baseball stadium, softball stadium, support building, tennis courts), an auditorium, museum and new building for their fine arts department, and a parking garage. A related Article 80 large project at 188-196 Foster Street (also part of the land bought from the Archdiocese of Boston) to build housing for BC's School of Theology and Ministry was submitted by the Jesuit society and approved in November 2008 by the BRA Board, although it was initially included in BC's IMP. The Zoning Commission changed the zoning at the property as part of its June 2009 IMP approval process.

No monetary figure for damages is specified in the suit.


Image of the scales of justice in Haarlem, The Netherlands by lant_70 provided through a Creative Commons license.


UPDATE: The Boston Globe now has a story on it.