TRANSPARENCY

The 2005 Open Meeting Law suit against Boston City Council: Kevin McCrea, Kathleen Devine and Shirley Kressel vs. Michael Flaherty and the Boston City Council

Sat, 12 Sep 2009 15:45:26 -0400

The Open Meeting Law designates the District Attorney to enforce the Law on municipal OML violations. It also allows three registered voters to bring suit. Because the District Attorney (ex-City Councilor Dan Conley) refused to sue the Council after it committed a dozen such violations in 2003 and 2004, Kevin McCrea, Kathleen Devine and I filed suit, in May 2005 -- when we found out about the secret meetings. None of us are lawyers. We expected, as the Open Meeting Law provides, that a hearing would be held within 10 days, with the burden of proof on the defendants to prove their innocence, to issue a finding on the alleged violations. Instead, the City Council dragged the case on for .... well, it’s still in court, with a hearing on remedies scheduled for December 17, 2009.

After their frivolous defense failed in Superior Court, the Council filed an Appeal.

The Appeals Court ruled on one of the eleven violations and sent the remainder back to Superior Court to let the Council present the factual evidence they said they hadn’t been given an opportunity to present. But the Appeals decision also stripped away all the frivolous defense arguments the Council had been using. At that point, the Council realized that, since they really had no factual evidence to show in their defense, the game was finally over. Back in the Superior Court, the Council actually filed a Motion for Summary Judgment asking to be found guilty of all eleven alleged violations. We filed for the same.

But the Councilors asked the court not to place an injunction on them against further violations, which is a remedy provided by the Law. They promised the judge that they would honor the Law from now on. That’s right: After all these years, our legislators don’t even want the judge to tell them they have to obey the Law. They cited as evidence of their good intentions a set of Guidelines they drafted for themselves regarding compliance with the Open Meeting Law; but, as we pointed out to the court, the Guidelines are a road map to further violations, stating that Councilors may meet in sub-quorum groups and then discuss the meeting with those who did not attend their session -- exactly what they did in the meetings ruled unlawful.

Here’s why it is so important to the Councilors to avoid an injunction: If they violate again while under injunction, they can be cited for contempt of court; that will look bad for our elected officials, especially for the lawyers on the Council, and there even may be some real personal penalty attached. But if they manage to fend off an injunction, they can continue with their unlawful meeting behavior, knowing that if someone tries to bring suit, that plaintiff will have to start all over with a fresh complaint -- and face four or five years of the Council’s frivolous motions, as has happened in this case -- and indeed, as happened in a previous Open Meeting Law case brought by state Attorney General James Shannon in 1987 (they lost that one too).

I post here links to the major filings from both sides (minus some of the voluminous attachments) so you can see your City Councilors’ arguments, parsing words, creatively re-defining “meeting” and “convene” and “deliberate,” etc.

In addition to in-house legal costs, the Council (and Mayor Menino) paid over $200,000 to hire outside law firms at taxpayer expense to defend a case they could have resolved at no cost to either party with a one-hour hearing in May 2005.

These documents may also be helpful for other citizens who want to file suit against Open Meeting Law violations by municipal or state bodies (other than the state legislature, which cleverly exempted itself from the transparency requirements, both for open meetings and for public records, that it imposed on others).

Plaintiffs’ complaint here
Documents of evidence here
Shannon Consent Agreement 1989 here

Defendants Motion to Dismiss here
Plaintiffs’ Response to Motion to Dismiss here
Supplemental Memorandum of our Response here
Court ruling on Motion to Dismiss here.

Defendants’ Motion for Reconsideration here
Plaintiffs’ Opposition to Motion for Reconsideration here
Court ruling on Motion for Reconsideration here

Defendants’ Motion for Summary Judgment 2005 here.
Plaintiffs’ Opposition here
Court ruling on Motion for Summary Judgment here
Court ruling on Plaintiffs’ Motion for Reimbursement of Costs here

Defendants’ Appeal here
Plaintiffs brief in response to Appeal here
Court Ruled on Appeal here
Transcript of Appeal hearing here

Plaintiffs’ Motion for Summary Judgment 2008 here
Defendants’ Motion for Summary Judgment 2008 here
Plaintiffs’ Opposition to Defendants’ Motion here
Defendants’ Opposition to Plaintiffs Motion here
Superior Court ruling on Motions here

Hearing is scheduled for December 17, 2009.

Public Record Law Languishes Under AG Tom Reilly

Thu, 7 Sep 2006 00:00:00 -0400

An Aug. 12 Boston Globe editorial entitled “Information Lockdown” gives a glimpse of the secrecy and manipulation of public information practiced by Mayor Thomas Menino. All Public Records Law requests now go to the City Law Department, where anything inconvenient is promptly buried. Information on tax breaks, land deals, zoning finagles –anything that might let the public know there is a lot more going on around here than senior citizen concerts and Mother’s Day coffee hours—is indeed locked down.

Last September, I submitted a Public Records Law request to the Mayor for documents on the nefarious Kensington/Gaiety project. I hoped to find out why he bothered to break every law just to hand a little-known real estate speculator a hugely profitable permit to tear down the protected historic Gaiety Theatre.

I received no response and appealed, per the Law, to the Office of the Supervisor of Public Records, in the Office of the Secretary of the Commonwealth. The Supervisor, Alan Cote, explained that without a response claiming specific exemptions from the law, he couldn’t determine that the requested records were indeed public documents, and without this determination, the Attorney General’s Office (AGO) won’t enforce, so the case was closed. Menino was thus informed (if he didn’t know before) that simply by stonewalling, he can disarm the whole state machinery for transparency in government.

On further examination, I learned that there is a much more troubling problem here. The Supervisor has spent several years trying to get the AGO to “take whatever measures he deems necessary to insure compliance,” as the Law and regulations provide, with the requirement that the documents be given to the Supervisor for determination; but the AGO insists on interpreting its powers most narrowly and refuses to intervene before the Supervisor’s determination that the documents are public – a Catch 22 for citizens, and a golden loophole for politicians.

In a March 2006 interview, Cote told the Boston Herald that the AGO "is not actively pursuing" all the cases he refers, and that in some cases it has reversed his decisions, diminishing his authority. The AGO in response claimed to have forced disclosure in almost 80% of cases referred by the Supervisor. The statistics I obtained from the AGO indicate that 84 of 144 referrals, 58%, were thus resolved. But more to the point, the number referred by the Supervisor to the AG has dropped dramatically, from an average of 22 a year in 1999-2004 to seven a year in 2005-2006, in anticipation of non-action. Mine was one of the cases not referred.

This matches my experience with the AGO regarding another public disclosure protection, the Open Meeting Law (OML). In 1987, Attorney General James Shannon successfully sued the Boston City Council for violating the OML, obtaining a consent agreement that further violations would be subject to Contempt of Court charges. When I and my two co-plaintiffs were preparing our OML suit last year, we asked the AGO to participate, since the consent agreement was still in effect. We were refused.

Sunlight, said Justice Louis Brandeis, is the best disinfectant; and heaven knows we need some serious disinfecting in the halls of power these days. Yet, The Attorney General’s Office, since 1999 run by Tom Reilly, seems to be closing the shutters. And I can only assume that a policy in controversy in his office for several years must have come to his personal attention, and is not merely the independent product of misguided staff.

Tom Reilly, now a gubernatorial candidate, has long had a powerful political ally in Tom Menino. Was Reilly using his power to protect Menino from public scrutiny? Or is this simply Reilly’s idea of public accountability: You can have whatever politicians feel like giving you.

The Turnpike tunnel crisis has focused media attention on Reilly, with comments about the need for more proactive action by the Attorney General’s Office when there are signs of trouble. I think we’ve got a sign of trouble when politicians hide their papers from the citizens. Non-disclosure of public records is tantamount to a cover-up.

If the letter of the law is truly the issue, the AGO could have advocated for reform legislation to explicitly increase AGO power, or supported bills that were filed to give the Supervisor more authority to enforce, allowing him to conduct investigations, compel disclosure of documents, issue subpoenas and obtain sworn testimony.

Ideally, the AGO should be working with the Supervisor to establish a central state digital archive of all public documents, systematically incorporating (after proper removal of exempt information, of course) all new documents as generated, and all accessible freely on the internet. (Other states do this already; they save millions in paper storage costs and prevent accidental (and not-so-accidental) document destruction and loss.) Citizens shouldn’t have to beg for months to get copies of their own documents from their public servants – and shouldn’t have to put up with threats of open-ended bills for hundreds (often thousands) of dollars in labor to find and copy them.

We may not get any more sunlight from Tom Reilly as AG (let’s hope his successor, Martha Coakley, is more interested), but we have to wonder what he’d do as governor.

Democracy depends on an informed citizenry; we all know what goes on when those in power can hide what they do. We can’t t’row da bums out if we don’t know who’s da bums!

Shirley Kressel
Published in South End News

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Boston Herald
State public records chief vents `frustration' with AG
March 14, 2006

The state's public records czar says the attorney general's office is weakening his ability to open up documents to the inquisitive public. Alan Cote, the state's supervisor of public records, said Attorney General Tom Reilly's office "is not actively pursuing" all the cases he sends it, and in some cases has reversed decisions of his. Cote said that can cut into his authority and create confusion....

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Boston Globe
Editorial: Information Lockdown
August 12, 2006
Copyright New York Times Company

FROM SMALL-TOWN mayors to US presidents, many a politician has resorted to withholding public records in an attempt to hide an explosive or embarrassing scandal. Whenever it happens, citizens shake their heads in dismay, even though many have come to accept it as inevitable. This week, Mayor Menino came up with a unique twist to this tactic: His lawyers refused to release a taxpayer-funded report on police civilian review boards, even though many of its details have already been published and debated, and the executive summary has now been leaked to a Globe reporter.
Before the refusal came the foot-dragging. When Menino's office wants the public to know something be it his latest crime strategy or his crowning at a hip-hop conference as T Mizzie City Hall aides manage to get the information in the right hands quickly. That was not the case here: Calls went unreturned, aides claimed ignorance about a well-publicized report, and the city used snail mail to deliver the news it was not releasing any information....