Court blasts City Council secrecy

June 27, 2008
By

JOHN RUCH

A state appeals court has heaped more criticism onto a string of secret Boston City Council meetings—one of them attended by local City Councilor John Tobin—that drew an $11,000 fine in 2006.

The court confirmed that a 2005 meeting Tobin attended violated the state’s Open Meeting Law. The appeals court vacated the lower court’s decision on 10 other meetings held in 2003-2005, saying the city should be allowed to present more evidence that those meetings were legal. But the appeals court also issued withering criticism of the council’s main defense arguments, making it appear unlikely that the final decision will be different.

“We were surprised that they appealed,” said Shirley Kressel, one of three residents who sued the city over the meetings. “They just found some things to hang onto by their fingernails.

“They don’t understand that when they’re elected, they don’t become kings. They become employees,” Kressel said of city councilors.

The City Council has changed its procedures to ensure more openness, according to a spokesperson for City Councilor Michael Flaherty, who was council president at the time of the meetings. Spokesperson John Romano said the decision to appeal was made by city attorneys, not by the council itself.

“Michael accepts the ruling,” Romano said. “He will continue fighting for better access, inclusion and transparency for all residents.”

The city’s press office did not respond to a Gazette request for comment.

Tobin continues to maintain that the meeting he attended—held with Boston University (BU) officials about a controversial bacteria outbreak in a university lab—did not violate the Open Meeting Law.

“I don’t think there was any wrongdoing there, at least not anything of a malicious type,” he told the Gazette.

At the same time, Tobin repeated his 2006 opinion that the city should not appeal the court’s decision. “I’m in favor of letting it go,” he said, but added that he could understand why the city would appeal.

All of the meetings addressed in the lawsuit allegedly were held behind closed doors, were not advertised and did not have records or minutes made available afterward. They were known as “councilor’s-only” meetings.

The Open Meeting Law requires all government or government-appointed bodies to hold advertised, public meetings with only a few obvious exceptions, such as discussions of personnel issues or real estate negotiations. The law’s purposes are to prevent secret decision-making and to ensure public, democratic input.

Even before the lawsuit, the BU meeting was the target of an Open Meeting Law warning letter sent to the council by Suffolk County District Attorney Daniel Conley.

The other 10 meetings were with Boston Redevelopment Authority (BRA) officials to discussion an extension of the BRA’s wide-ranging urban renewal powers, which the council eventually approved.

Four councilors at the time repeatedly objected to holding councilor’s-only meetings and boycotted them. The council’s membership has changed since then.

The city’s appeal of the original decision was based on two main arguments. The city claimed that one of the BRA meetings, held in 2004, actually was properly advertised. That would “cure” any previous Open Meeting Law violations because it ensured the public did have input, the city claimed.

The city further claimed that all of the other meetings were not in violation for various reasons: there was no quorum of councilors; the council did not have authority over the subject of the meeting; and/or that the meetings were convened by the BRA, not by the council itself.

The appeals court shot down most of those arguments in an opinion announced on May 1. The case is called McCrea v. Flaherty.

The 2004 meeting did not “cure” any previous violations, the court said, because that meeting included a substantially new proposal and an unannounced vote. The court also noted that the meeting was “recessed” for three hours while councilors retreated to talk privately.

Kressel said it was particularly important that the court shot down this “cure” theory. Otherwise, she said, the council could avoid public debate—“hammer it out in private and approve it in public,” as she put it.

The appeals court confirmed that the BU meeting violated the law, particularly criticizing the lack of advertising.

The court said that public notice of meetings is “an essential attribute of the law; it is manifestly pointless to conduct a meeting to which the law requires public access if no member of the public is aware that the meeting is taking place.”

The city won a technical victory on the BRA meetings. The appeals court vacated the lower court’s decision that those meetings were illegal, saying that more evidence is required to prove that. The court remanded the case for a new decision after the city is allowed to present more defense evidence.

But the appeals court also severely criticized the city’s current defense arguments. It was particularly harsh about the council’s practice of avoiding quorums—a meeting of the minimum number of councilors needed to vote on a proposal. The presence of a quorum is one of the things that triggers the need for a public meeting under the Open Meeting Law.

Under Flaherty, the council deliberately avoiding forming quorums. In some cases, councilors rotated in and out of meeting rooms so that they all got to hear the basic information without forming a quorum. At some meetings, a BRA official was reportedly responsible for keeping a running head count and turning away councilors at the door.

In other cases, the councilors simply avoided entering a meeting on their own if their presence would form a quorum.

Tobin cited quorum-avoidance as one reason he believes councilor’s-only meetings he attended were legal.

“Every meeting I took part in, the Open Meeting Law was always mentioned…There was never a quorum,” Tobin said.

But the appeals court blasted that as an “evasive strategy” that violates the letter and spirit of the Open Meeting Law. The court essentially said that the point of the law is not to avoid a quorum, but to avoid secrecy.

“We reject this strained interpretation of statutory language, asserted for the sole purpose of defeating the fundamental purpose of the law,” the court said.

The court was particularly unhappy because the council’s “rotating quorum” was previously ruled illegal in a 1989 court decision. That case, filed in 1987, was about secret council meetings about redistricting.

Asked about the claim that the council no longer operates under the councilor’s-only meeting practices, Kressel said, “How could I know?” She noted that she and her fellow plaintiffs—Kathleen Devine and one-time council candidate Kevin McCrea—only found out about the secret meetings accidentally due to their close following of the BRA power-renewal process.

But Tobin indicated that council meetings are indeed different now, and complained that it cramps their style a bit. “It’s just strange that there’s this law on the council,” while state legislators appear freer to meet privately, he said.

Tobin said the new system is also why he wasn’t fully informed about the appeal of the court decision.

“I haven’t talked to anybody [on the council] about it because we’re not allowed to talk to each other anymore,” he joked.

Kressel said that the council, under current president Maureen Feeney, has indeed changed some of its practices following a second open meeting lawsuit the same plaintiffs filed in 2006.

In that suit, the plaintiffs claimed that council committee were holding private discussions and votes on whether proposals—including the council’s own pay raise—would be presented to the full council.

The plaintiffs lost that lawsuit. But, Kressel said, the council still changed its practice and now holds public committee meetings and votes. “So that was our victory,” she said.

But, she added, there are still private deliberations in “recesses” like those referred to by the appeals court in the current case.

“They still call recesses in the middle of meetings and are out for two hours,” she said.