DA: BRA groups are too secret

October 5, 2007
By

JOHN RUCH

The Suffolk County District Attorney’s Office recently declared that two Boston Redevelopment Authority (BRA) citizen advisory committees (CAC) are violating the state Open Meeting Law with secretive meetings. The BRA disputes the official warning.

Neither of the CACs cited by the DA are in Jamaica Plain. But the local Blessed Sacrament Church redevelopment CAC drew controversy for secrecy last year. During that controversy, BRA officials actively defended the lack of CAC publicity, which they are not doing in the DA dispute.

JP will likely have more CACs in the near future for such projects as the Forest Hills MBTA land redevelopment.

“The BRA is aware of our interpretation of the law, and we expect them to abide by it,” said Jake Wark, spokesperson for DA Dan Conley. “I can tell you that the matter is not closed.”

“Essentially, our position is we don’t believe we’re violating the Open Meeting Law,” said BRA spokesperson Jessica Shumaker, who also issued a written statement describing the DA’s opinion as “without basis in law or fact.”

The Open Meeting Law requires that most meetings of “government bodies” to be open to the public, including publicizing them beforehand and offering meeting minutes afterward. Violations can result in fines and even the overturning of decisions made in secret. Defenses to alleged violations of the law, including this one, often hinge on definitions of “government bodies.”

CACs are groups of residents formed by the BRA and the Mayor’s Office to give the BRA local perspective on a planned project. A BRA project manager typically attends CAC meetings.

The DA’s warning, issued in April, focused on two CACs reviewing college expansion projects: the Harvard Allston Task Force and the Boston College Task Force.

The DA claims—and the BRA apparently does not dispute—that both of those groups held some unadvertised meetings and failed to provide minutes of some meetings. In at least one case, members of the public were turned away at the door at one Boston College Task Force meeting.

The DA said the CACs are governmental “subcommittees” of the BRA under Open Meeting Law definitions, because they help the BRA carry out its official project review function. That means both groups violated the law, according to the DA.

Wark told the Gazette that while the warning applies specifically to those two groups, its principles cover all BRA CACs.

The BRA argues that the CACs are not subcommittees, but “ad hoc” advisory groups that only have “non-decision-making functions,” according to a response letter by BRA attorneys.

The CACs “merely…assist the BRA staff members in the performance of their duties in providing information to the [BRA] board,” the BRA’s response letter. Most work by BRA staff members is not covered by the Open Meeting Law.

Shumaker noted that because the BRA considers CACs to be independent groups, it can’t impose rules on them—including an open meeting requirement.

“We encourage them to be as public as possible,” Shumaker said, adding that the final decision is up to CAC members. “It just causes them much more headaches if they try to shut people out.” Different CACs end up operating in different ways, she noted.

But, Shumaker said, open meetings are the “norm” for CACs in the modern era. She acknowledged that CACs might have been less open in the past.

“Communities are much more organized and involved now,” she said, adding that a new trend is allowing the public to speak at CAC meetings. “I’d like to think we’re going in that direction and not backwards.”

Shumaker also emphasized that most CACs are publicized, at least on the BRA’s web site (www.cityofboston.gov/bra). A calendar on the site lists many CAC meeting dates, and the minutes of many meetings are posted on the site. Shumaker said residents usually can get on an e-mail list for notice of upcoming CAC meetings—at least, if they manage to go to the CAC’s first meeting and sign up.

“We don’t believe they’re secretive in nature,” Shumaker said of CAC meetings in general. “There have definitely been crowds at CAC meetings. We know they’re not secretive because people are coming.”

The Open Meeting Law issue aside, the BRA does not give CAC meetings the same level of publicity as it does for its own community meetings held to collect input from the general public about projects. For those meetings, the BRA typically purchases advertising and actively sends out press releases.

“I don’t know why that’s different,” Shumaker said. Asked if the BRA has ever considered actively sending out press releases about CAC meetings, in addition to using the passive web site, she said, “I never thought of that,” adding that it is something the agency might consider. She indicated that buying advertising for each CAC meeting would be expensive and impractical.

In any case, CAC controversy is continuing. In August, a CAC for the Prudential Center in Back Bay kicked a Boston Courant reporter out of its meeting, claiming that press coverage would somehow compromise its work. The BRA has said it disagrees with that decision.
JP disputes

During the Blessed Sacrament CAC controversy, it was also alleged that too much publicity would hamper the group’s work—but the claim was made by the BRA itself.

And local CAC operations in general—controversial and not—present a more complex picture of the process than that drawn by BRA attorneys, though not necessarily one that supports the DA’s concerns.

Some local CACs have been well-regarded, such as the now defunct Jackson Square Coordinating Group (JCG), which met for years to help plan the redevelopment of public parcels in Jackson Square. Its regular meetings were publicized with meeting announcements, and the public was welcome to attend, though not to speak.

However, the JCG also undertook actions that appear to go beyond merely “advisory.” For example, its members wrote a “community vision” that was attached to the official request for proposals and strongly determined the selection of developers. However, the BRA still made the ultimate decision to use the document, and the JCG did not actually pick the developers.

The history of the now defunct Blessed Sacrament CAC—starting early last year—suggests a group that was less “ad hoc” than the process BRA lawyers described to the DA. As with all BRA CACs, its members were nominated—sometimes by themselves or community groups, but often by local elected officials.

Nominees were then selected, with some being rejected. The final members were “appointed,” in the language of the official press statement at the time, directly by the mayor.

Asked if the mayor can also remove CAC members, Shumaker said the question is too hypothetical. “It’s never had to be an issue and we wouldn’t want it to be an issue,” she said.

While the CAC may have been free to set its own rules, its first meeting was an “orientation” session at City Hall.

Membership also came with one aspect that is apparently unusual within the CAC realm. Members were reportedly required to a sign a pledge—one member later jokingly called it a “loyalty oath”—that said they would be removed if they failed to properly speak for whatever segment of the community they were appointed to represent. It was unclear who would decide that or how removal would happen.

Once the CAC was up and running, its meetings were not announced to the general public. Instead, BRA spokesperson Lucy Warsh told the Gazette, the public was free to call the BRA from time to time and see if a CAC meeting was coming up. The public reportedly was welcome to attend the meetings—if they found out about them.

Warsh and BRA project manager Lance Campbell at the time told the Gazette that CAC meetings are never publicized, but could not explain why, beyond suggestions that public scrutiny would interfere.

“It’s the nature of a CAC. There’s work to be done,” Campbell told the Gazette at the time, when asked why its meetings were unpublicized. Campbell noted that meeting minutes were later posted on the BRA web site.

Edmund Cape, president of the Sunnyside Neighborhood Association, at the time said there was “miscommunication” about whether members of the public were welcome at CAC meetings. “It was certainly not a process that was clearly made open,” he said at the time.

In practice, most of the meetings were conducted with little or no public scrutiny.

“Maybe that was, unfortunately, not like the others [CAC meetings],” Shumaker said about the Blessed Sacrament CAC. “If this was the case with Blessed [Sacrament], I would say that was unfortunate.”

The Blessed Sacrament CAC also illustrates a nuance to the interpretation of whether such groups are “decision-making.” The CAC clearly had no authority to make any final decisions on the project. But it did vote to approve a controversial rezoning of the site. The BRA then touted that vote at Jamaica Plain Neighborhood Council public meetings as a persuasive community decision.

At the same time the Blessed Sacrament CAC was being formed, the BRA was part of another Open Meeting Law controversy. The Boston City Council was found to have repeatedly violated the Open Meeting Law and fined $11,000 by a judge.

Of 11 illegally private City Council meetings, 10 were with BRA officials, who made their case for an extension of the BRA’s urban renewal powers, which the council eventually approved. The BRA reportedly suggested some of the meetings, but was only an attendee and therefore was not liable for the Open Meeting Law violations.