By Kevin McCrea
http://electkevin.blogspot.com

Monday, May 30, 2005

City Council's Response to Open Meeting Law Suit

   What do lawyers do?? Deny, Deny, Deny....

   Anyhow, here is the City Law Department's response to our
   suit. Please feel free to email us with flaws you find in
   their arguments!

   CITY OF BOSTONLAW DEPARTMENT City Hall, Room 615Boston, MA 02201
   THOMAS M. MENINO Mayor
   MERITA A. HOPKINS Corporation Counsel
   May 26, 2005
   Shirley Kressel 27 Hereford Street Boston, Massachusetts
   Kevin McCrea218 West Springfield Street Boston, Massachusetts
   Kathleen Devine 49 Symphony Road #33 Boston, Massachusetts
   RE: Kevin McCrea. Shirley Kressel and Kathleen Devine v. Michael F. Flaherty and the Boston City Council
   Superior Court No. 05-1798-B
   Enclosed pursuant to Superior Court Rule 9A, please find the following documents:
   1. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 12(b)(6); and
   2. THE DEFENDANTS', MICHAEL F. FLAHERTY AND BOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS.
   Please respond within the time allowed. Thank you for your attention to this matter.
   Yours truly,
   Ronald G. Nelson
   Assistant Corporation Counsel(617)635-4097
   RGN/jlfEnclosure
   TEL.: (617) 635-4034 FAX: (617) 635-3199COMMONWEALTH OF MASSACHUSETTS

   SUFFOLK, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
   KEVIN McCREA, SHIRLEY KRESSEL, and KATHLEEN DEVINE, Plaintiffs,
   v.
   MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL, Defendants.
   THE DEFENDANTS', MICHAEL F. FLAHERTY andBOSTON CITY COUNCIL, MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 12(b)(6)

   Now come the Defendants, Boston City Council and Michael F. Flaherty, as City Council President ("Defendants") in the above-captioned matter and move this Honorable Court, pursuant to Mass. R. Civ. P. 12(b)(6), to dismiss all counts of the plaintiffs' complaint
   against the Defendants. As reasons for this Motion, the Defendants state:
   1) The plaintiffs fail to state a claim under G.L. c. 39, §23B; and
   2) The relief sought by the plaintiffs is overly broad.
   The plaintiffs, therefore, have failed to state a claim upon which relief can be granted, and their complaint should be dismissed with prejudice.
   As further grounds for its motion, the Defendants submit the attached Memorandum of Law.
   CERTIFICATE OF SERVICE
   I hereby certify that on this day a true copy of the above document was served upon each party appearing pro se by U.S.mail, first class, postage paid.
   Ronald G" Nelson
   Date"
   Respectfully submitted,
   Defendants BOSTON CITY COUNCIL and Michael F. FIaherty, as City
   Council President,
   By their attorney, Merita A. HopkinsCorporation Counsel
   Mark Sweeney,BB0P490160Ronald G. Nelson, BBO # 652035Assistant Corporation CounselCity of Boston Law Department City Hall, Room 615Boston, MA 02201(617) 635-4097
   2
   COMMONWEALTH OF MASSACHUSETTS
   SUFFOLK, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURTCIVIL ACTION NO. 05-1798-B
   KEVIN McCREA, SHIRLEY KRESSEL,and KATHLEEN DEVINE, Plaintiffs,v.MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL, Defendants.
   THE DEFENDANTS', MICHAEL F. FLAHERTY and BOSTON CITY COUNCIL, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS
   INTRODUCTION
   This is an action, pursuant to GL. c. 39, section 23B, the state Open MeetingLaw, that seeks (1) to sanction the Boston City Council for a purported violation of lawin connection with a January 20,2005, informational briefing provided to CityCouncillors regarding a
   tularemia outbreak at a Boston University research facility(hereinafter, the "Tularemia Briefing"), and (2) to invalidate a December 15, 2004, voteof the Boston City Council to approve the extension of Boston Redevelopment Authority(BRA) Urban Renewal Plans. The
   plaintiffs' claims against the Boston City Council andMichael F. Flaherty, as City Council President, should be dismissed as a matter of lawbecause the plaintiffs clearly fail to state a claim pursuant to G.L. c. 39, §23B upon whichrelief can be granted.
   This memorandum will discuss the provisions of the Open Meeting Law generallyas well as the particular allegations regarding the Tularemia Briefing and the UrbanRenewal Extensions and will conclude that the Boston City Council fully complied withthe Open Meeting
   Law in both instances.
   FACTS1
   The Boston City Council is the legislative body of the City of Boston. See St.1948, c. 452, §11, as appearing in St. 1951, c. 376, § 1. In order to conduct publicbusiness, a quorum of seven out of thirteen Councillors is necessary. Complaint, P 10.On June 3, 2003,
   members of the City Council participated in the first of severalinformational sessions with BRA regarding Urban Renewal Plan Extensions. Complaint,P 12. On June 19, 2003, members of the City Council participated in a secondinformational session with the BRA.
   Complaint, P 13. Plaintiff Shirley Kressel waspresent for this informational session, which she characterized as a meeting during whichthe BRA provided information on Urban Renewal Plan Extension. Id. On August 14,2003 another informational meeting was held with
   the BRA with only two Councillors inattendance. Complaint, P14; Attachment 3. Several other such informational sessionswere held in order to promote dialogue on issues of concern to the City Council. Id. Atno time during any of the above referenced informational
   sessions did the Councillorsdeliberate, decide or vote on any matter properly before them that required a quorum.
   THE MEETING WAS CHARACTERIZED AS ONE WHERE THE BRA WAS ATTEMPTING TO INFLUENCE THE DECISION-MAKING OF THE COUNCILORS, BY MAKING A PRESENTATION ABOUT THE PAST, CURRENT AND FUTURE OPERATIONS OF THE URBAN RENEWAL PLANS, ANSWERING QUESTIONS, AND ALLAYING COUNCILORS'
   FEARS WHICH MIGHT PRECLUDE THEIR APPROVAL OF THE BRA'S REQUESTED URBAN RENEWAL PLAN EXTENSIONS. THE COUNCILORS, FOR THEIR PART, WERE ACTING SO AS TO NEGOTIATE FROM THE BRA REASSURANCES OF EXISTING, AND GRANTING OF NEW POWERS, OVER THE URBAN RENEWAL PLANS, AS A
   CONDITION OF VOTING APPROVAL LATER. THIS POSITION OF NEGOTIATION IN THE EXTENSION RENEWAL PROCESS IS CONFIRMED IN THE LETTER BY MICHAEL ROSS, ATTACHED.
   THE NUMBER OF COUNCILORS IN ATTENDANCE AT THESE MEETINGS IS IMMATERIAL; THE NUMBER INVITED IS RELEVANT. ALL COUNCILORS WERE NOTIFIED; THESE WERE THEREFORE MEETINGS OF THE FULL GOVERNMENTAL BODY.
   ______________________________________________1The defendants assume these facts, as alleged in the plaintiffs' complaint, only for the purposes of pursuing their Motion to Dismiss and, therefore, the subsequent statements should not be construed as an admission to
   the allegations plead in the complaint.
   2
   See Complaint, Attachment 2. On December 15, 2004, during a duly noticed opensession, the City Council deliberated and passed an Order transmitted to it by MayorThomas M. Menino on October 26, 2004, regarding Urban Renewal Plan Extension.Complaint, P18; Exhibits 1
   and 2.2. On January 20, 2005, the City Council participatedin the Tularemia Briefing with Boston University regarding the outbreak at one of itsresearch facilities. Complaint, P 19. At no time during this briefing did the Councillorsdeliberate, decide or vote on
   any matter properly before them that required a quorum andwas within their jurisdiction to consider. On March 21, 2005, acting on a complaint filedby plaintiff Kathleen Devine, Assistant District Attorney Donna J. Patalano sent a letter to Council President
   Flaherty, stating that the Suffolk County District Attorney's Officehas concluded that the Tularemia Briefing "did not fall into any of the enumeratedexceptions provided pursuant to the Open Meeting Law." Complaint, P 21; Attachment 11.
   On March 24,2005, several City Councillors attended another informationalsession with the BRA. Complaint, P 23-25. Although plaintiff McCrea wrote severalletters to the Suffolk District Attorney's Office complaining that the March 24, 2005informational session
   violated the Open Meeting Law, to date, the District Attorney'sOffice has not responded to his complaint. Complaint, P 31 and 36.________________________________2 Although as a general rule a court may not consider documents outside of the pleadings
   withoutconverting a motion to dismiss into one for summary judgment, exceptions to this general rule exist "fordocuments central to plaintiffs' claim; or for documents sufficiently referred to in the complaint."Watterson v. Page. 987 F. 2d 3 (1st Cir. 1993). An
   exception also exists for official records, the authenticityof which the plaintiffs do not dispute. See id., quoting Cortec Indus., Inc. v. Sum Holding L.P.. 949 F. 2d42, 48 (2d Cir. 1991), cert. Denied, 503 U.S. 960 (1992).
   ARGUMENT
   DEFENDANTS' MOTION TO DISMISS SHOULD BE GRANTEDWHERE THE PLAINTIFFS FAIL TO STATE A CLAIM UNDERG.L. c.39,§23B
   The plaintiffs' allegations, that the Boston City Council conducted "meetings" in violation of G.L. c. 39, §23B, are completely without merit.3 General Laws ch. 39, §23B provides that "[a]ll meetings of a governmental body shall be open to me public .... No quorum
   of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except4 as provided by this section." G.L. c. 39, §23B (emphasis added). "Executive session" is defined by G.L. c. 39, § 23A as "any meeting
   of a governmental body which is closed to certain persons for deliberationon certain matters." G.L. c. 39, § 23A (emphasis added). "Meeting" is defined as "any corporal convening and deliberation of a governmental body for which a quorum is required in order to
   make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered; but shall not include any on-site inspection of any project or program." G.L.
   c. 39, § 23A (emphasis added). "Deliberation" is defined as "a verbal exchange between a quorum of members of a governmental body attempting to
   ____________________________________________________3 The Defendants also assert that the plaintiffs' standing to pursue their claim is, at the moment, tenuous.The Open Meeting Law allows three registered voters to seek relief against a governmental body
   inviolation of the law. See G.L. c. 39,§ 23B. In the instant complaint, while captioned in the name of threepurported registered voters, Mr. McCrea, Ms. Kressel, and Ms. Devine, the complaint is only signed by Mr. McCrea pro se. Since Mr. McCrea does not appear to
   be an attorney licensed to practice law in the Commonwealth of Massachusetts, his signature is on his own behalf, and, therefore, the complaint is deficient, as it lacks the required number of registered voters. 4 The exception refers to the enumerated exceptions
   under which a governmental body may hold an"executive session." See G.L. c. 39, § 23B.
   4
   arrive at a decision on any public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added).
   THE QUORUM IS NEEDED AT TIME OF DECISION, NOT AT TIME OF MEETING AND DELIBERATION.
   While these provisions make it clear that the public's business must be conducted in public, it is equally clear that not every discussion of issues of public concern is subject to the Open Meeting Law. In the case of the Boston City Council, only pending
   legislative measures that are within the City Council's jurisdiction are subject to the OpenMeeting Law since those are the only matters upon which the City Council may deliberate or make decisions. See G.L. c. 39, § 23B. As discussed below, neither the Tularemia
   Briefing nor the briefings provided to City Councillors by the BRA director were related to pending legislation within the Boston City Council's jurisdiction and thus it is clear from the plain language of the statute that the plaintiffs' claims have no merit.THE
   MEETING WAS PRESUMABLY CONVENED BECAUSE OF A POSSIBLE DANGER TO THE CITY'S RESIDENTS OF ALLOWING THE CONSTRUCTION OF A LEVEL 4 BIODEFENSE LABORATORY PROPOSED FOR THE SOUTH END, BY BOSTON UNIVERSITY MEDICAL CENTER, WHOSE COMPETENCE TO OPERATE SUCH A LABORATORY WAS
   CALLED INTO QUESTION BY THE TULAREMIA EXPOSURE. THIS MATTER WAS EXTREMELY IMPORTANT TO THE CITIZENS OF BOSTON; THE COUNCILORS WERE EXERCISING THEIR GENERAL OVERSIGHT OVER THE HEALTH AND WELFARE OF THE CITY. IN FACT, BECAUSE IT INVOLVED A MODIFICATION TO AN URBAN
   RENEWAL PLAN, AND THE DISPOSITION OF CITY-OWNED LAND, TWO ACTIONS SUBJECT TO CITY COUNCIL APPROVAL, THE LAB WAS LEGALLY WITHIN THEIR JURISDICTION, ALTHOUGH THEY MAY NOT HAVE BEEN GIVEN THE OPPORTUNITY TO EXERCISE THEIR POWERS OVER THESE ACTIONS.
   The City Council is the City of Boston's legislative body. See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The business of the City Council is to act on legislation in the form of orders, ordinances or resolutions, i.e.. to legislate. See id.
   Legislation may take the form of orders, ordinances or resolutions. See St. 1948 c. 452, §17D. In order for the Council to legislate, a quorum of the body must be present at a duly noticed public session. See St. 1948 c. 452, §17D; Rules of the Boston City Council,
   Rules 25 and 5.6 Here it is clear on the face of the complaint and its attachments
   _______________________________________5 Rule 2, entitled Quorum, states:"A quorum of the council shall consist of seven members and any member may call for a roll call onthe question of the presence of a quorum. If at any time any meeting is called to order, or if
   during ameeting, a roll call shows less than a quorum, the presiding officer shall call a recess of not more than tenminutes, after which time, if a quorum is not present, the meeting may be adjourned by me presidingofficer." .6 Rule 5, entitled Matters Properly
   Before Council, states:"No motion or proposition of a subject different from the one under consideration shall be admittedunder the color of an amendment.
   5
   that none of the briefings were related at the time of their occurrence to any order,ordinance or resolution pending before the City Council for which a quorum of members was required.
   1. The Plaintiffs Complaint is untimely filed.The plaintiffs claim that the January 20, 2005 Tularemia Briefing with Boston University and informational sessions with the BRA held prior to the December 15, 2004 session, during which the City Council passed an Order
   approving the Urban Renewal Plan Extension, violated the Open Meeting Law. However, pursuant to G.L. c. 39, §23B, a complaint to "invalidate an action taken at any meeting at which any provision of this section has been violated" must be "filed within twenty-one
   days of the date when such action is made public." G.L. c. 39, §23B. Failure to adhere to this strict statute of limitations bars any such complaint. See Benevolent & Protective Order of Elks, Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566
   (1988). The plaintiffs seek to "invalidate the December 15, 2004 vote by the City Council approving the BRA proposal for Urban Renewal Plan Extensions." That vote occurred at a duly noticed public session of the City Council, and therefore became public
   immediately. See Benevolent & Protective Order of Elks. Lodge No. 65. & others v. City Council of Lawrence. 403 Mass. 563, 566. The plaintiffs did not file their complaint until May 7,
   THE DECEMBER 15 VOTE IS KNOWN TO THE PUBLIC, BUT THE ACTION(S) TAKEN AT THE MEETINGS WHICH VIOLATED THE OPEN MEETING LAW HAVE STILL NOT BEEN MADE PUBLIC. WE ARE DEMANDING THAT RECORDS OF THESE MEETINGS BE MADE PUBLIC, AND THAT THE VOTE BE NULLIFIED BECAUSE IT IS
   THE CULMINATION OF DELIBERATIONS MADE IN VIOLATION OF THE LAW. THE INTENT OF THE LAW IS TO PROTECT THE PUBLIC FROM ACTIONS WHICH WERE MADE WITHOUT PROPER PUBLIC FORUM; WE ASK THE COURT TO PROVIDE THE REMEDY AVAILABLE TO PURSUE THE INTENT OF THE LAW, GIVEN THE
   CONCEALMENT OF THE PROCESS AT THE TIME, AND BEGIN THE CLOCK WHEN THE NOTES FROM THOSE MEETINGS ARE PUBLISHED. ________________________________________Any motion, order, or resolution which has been previously debated and acted upon in the currentmunicipal year, or
   which conflicts with the city charter, federal or state constitution or with rules prescribedby existing city ordinance, federal law or state law, or which in the opinion of the presiding officer doeshave a direct bearing on the business of the council shall be
   referred to the committee of the whole, andshall not be further considered by the council except upon report by that committee. There shall be noappeal from the decision of the chair hereunder, and this rule shall not be subject to suspension. Uponinvocation of
   this rule by the president, no motion shall apply, nor shall unanimous consent to speak on thematter so referred be in order.
   The committee of the whole may report that any motion, order, or resolution, so referred to it, is out oforder for the reasons contained in Rule 5, and its report shall be a final disposition of the matter, subject to
   6
   2005, more than twenty-one days after the vote became public. The statute of limitations of G.L. c. 39, § 23B therefore bars the plaintiffs from seeking an order invalidating the City Council's vote. See Benevolent & Protective Order of Elks, Lodge No. 65, & others
   v. City Council of Lawrence, 403 Mass. 563, 566. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
   2. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the Tularemia Briefing.
   The plaintiffs allege that the Boston City Council "held a 'councillors only meeting' to discuss Boston University exposing three of its researchers to tularemia." Complaint, P19. Tularemia is "an infectious disease of rodents, man and some domestic animals that is
   caused by the bacterium Francisella tularensis...." The American Heritage College Dictionary, 3rd Ed. Under state regulation, cases or suspect cases of tularemia must be reported to "the board of health in the community where the case is diagnosed or suspect case
   is identified." 105 CMR 300.100. The local board of health must then report to the state Department of Public Health. 105 CMR 300.110. m the City of Boston, the board of health is the Boston Public Health Commission, a body politic and corporate and political
   subdivision of the Commonwealth established by St. 1995 c. 147, §3.7
   A memorandum from City Council President Flaherty, dated January 20, 2005, stated that "[a]s a result of this exposure and in conjunction with the Mayor, I would like to invite all Councillors to a Councillors only meeting today at 12:30 p.m. in my office (the
   Council President's office) to discuss the incident. Representatives from BU will
   ___________________________________________an appeal. The same provisions as those governing appeals from rulings of the presiding officer shallgovern such appeal."
   7
   provide Councillors with a briefing as well as be available for questions." Complaint, Attachment 9.
   The complaint fails to allege that at the time of the Tularemia Briefing, January 20, 2005, there was any order, ordinance or resolution pending before the Council for which a quorum would be required that related to either tularemia or Boston University. Nor could
   such an allegation be made as there was no order, ordinance or resolution for which a quorum would be required for legislative action regarding either subject matter pending before the Council on January 20, 2005. See Boston City Council, Legislative Calendar for
   the January 26, 2005 Council Session, attached hereto as Exhibit 3.8
   Thus, the January 20, 2005 briefing regarding the Boston University Tularemia incident is a matter of public health. The Tularemia Briefing did not relate to any matter upon which the City Council could decide or deliberate, as such matters are the exclusive
   province of the Boston Public Health Commission that is "not subject to the supervision of any other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over
   public health matters in the City of Boston without oversight from other official government bodies, the City Council's briefing on the Tularemia incident did not violate the Open Meeting Law, as the Council could not decide or deliberate toward a decision on a
   matter of public health.
   THE CITY COUNCIL HAD LONG BEEN CONSIDERING LEGISLATION TO PROHIBIT BIOSAFETY LEVEL 4 LABORATORIES IN BOSTON, SIMILAR TO CAMBRIDGE'S LAW. SUCH AN ORDINANCE HAD BEEN FILED IN CITY COUNCIL ON MAY 20, 2003 BY COUNCILORS TURNER, ARROYO AND HENNIGAN. THE CITY COUNCIL
   HELD A HEARING ON MARCH 28, 2004, WHERE MANY RESIDENTS, BOSTON UNIVERSITY MEDICAL CENTER STAFF, AND SCIENTISTS TESTIFIED. OBVIOUSLY, THE COUNCIL DEEMED THAT IT HAD SOME DECISION-MAKING ROLE IN THIS MATTER SUFFICIENT TO HOLD A PUBLIC HEARING. IF NOT, WE WOULD ASK
   PRESIDENT FLAHERTY WHY HE IS CONVENING PUBLIC HEARING ON MATTERS THAT DO NOT CONCERN THE CITY COUNCIL.
   Finally, although the plaintiffs make much of Assistant District Attorney Donna J. Patalano's March 21, 2005 letter to Council President Flaherty, stating that the Suffolk County District Attorney's Office has concluded that the Tularemia Briefing "did not fall
   ______________________________________________7 The Boston Public Health Commission's "Report of Pneumonic Tularemia in Three Boston UniversityResearchers" may be found at http://bphc.org/reports/pdfs/report_202.pdf.
   8
   into any of the enumerated exceptions provided pursuant to the Open Meeting Law," it is clear the District Attorney's Office did not take the foregoing into consideration during its investigation of Kathleen Devine's complaint. It is telling that the District
   Attorney's Office has taken no further action in this matter or sought any order from this Court or the Supreme Judicial Court, pursuant to G.L. c. 39, § 23B.
   THE DISTRICT ATTORNEY'S OFFICE IS CAPABLE OF MAKING A RULING BASED ON STATE LAW. THAT THE CITY COUNCIL PRESIDENT WAS INSTRUCTED TO OBEY THE OPEN MEETING LAW ONCE AND NOT A SECOND TIME DOES NOT DIMINISH THE FORCE OR VALIDITY OF THE RULING.
   3. The Plaintiffs fail to show that the City Council decided or deliberated on any matters requiring a quorum in connection with the BRA briefings.
   The complaint alleges that on June 3, 2003, June 19, 2003, August 14, 2003, and September 23, 2003, unnoticed meetings of the City Council were held to discuss Urban Renewal Plan Extensions with the BRA. Complaint, P 12, 13, 14, 17. Again, none of the briefings
   referred to in the plaintiffs' complaint required a quorum of the City Councilbecause no pending legislative matters were before the Council at the time of the alleged violations. Indeed, even if a quorum of Councillors were present at these various informational
   sessions, which is not alleged in the complaint, the Council did not decide or deliberate on any pending matter. Nor could the Council have deliberated or decidedany issue because no legislation was pending before it at the time of the briefings. See Exhibit 3; see
   also G.L. c. 39, § 23A.
   The Boston Redevelopment Authority is a separate body corporate and politic under the provisions of St. 1960, c. 652 and G. L. c. 121B, § 1, defining "Operating agency," and thus is not subject to the supervision or control of the Boston City Council. The City
   Council's only authority with respect to urban renewal is its ability to approve Urban Renewal Plan Extensions derived from its authority to approve original Urban Renewal Plans under G.L. c.121 B, § 48. Thus, the only decision or deliberation that the
   8Exhibit 3 is an official listing of all business then pending before the City Council on file.
   9
   Boston City Council could make with respect to Urban Renewal Plans, the December 15,2005, vote, was completely in compliance with the Open Meeting Law and the plaintiffsdo not contend otherwise. Complaint, P 18.
   THE CITY COUNCIL HAD JURISDICTION OVER THE TERM EXTENSION OF URBAN RENEWAL PLANS AND OTHER MAJOR MODIFICATIONS TO THESE PLANS. THIS ISSUE WAS UNDER DISCUSSION BY THE COUNCIL LONG BEFORE THE DECEMBER 15, 2004 VOTE (SEE TIMELINE). MEETINGS AND DELIBERATIONS WERE
   ONGOING WITH THE BRA AT LEAST AS EARLY AS JUNE 3, 2003, MANY MONTHS BEFORE AN ORDER FOR EXTENSION WAS OFFICIALLY DELIVERED TO THE COUNCIL ON OCTOBER 26, 2004 FOR VOTING.
   Zoning issues in Boston are handled by the Boston Zoning Commission, an administrative agency established by St. 1956, c. 665, § 1. The Boston City Charter prohibits the City Council from any direct or indirect involvement in the conduct of the executive or
   administrative business of the City. City Council of Boston v. Mayor of Boston, 383 Mass. 716, 723 (1981); see St. 1948, c.452, §17G, inserted by St. 1951, c.376, §1. Thus, the City Council could take no part in any decision or deliberation related to zoning.
   The allegations and attachments to the plaintiffs' complaint do not show the Boston City Council illegally conducting City Council business with the Director of the BRA. Rather, the materials disclose that the BRA director made himself available to discuss BRA
   business with individual City Councillors that was in fact outside the jurisdiction of the City Council and would otherwise never come under its purview.
   On December 15,2004, the City Council approved a BRA proposal for Urban Renewal Plan Extensions. Complaint, P 18. The Order approved by the City Council on December 15,2004, was filed with the Council on October 26, 2004 and thus could not have been the subject of
   any decision or deliberation requiring a quorum at the time of the alleged violations. While it is alleged that an Order relating to Urban Renewal Plan Extensions had been filed with the City Council on February 5, 2003, it must be noted that the "Order of
   Councillors Felix D. Arroyo, Maura A. Hennigan, Chuck Turner and Charles C. Yancey" relates to proposed state legislation that is outside the jurisdiction of
   10
   the Boston City Council and not to any order, ordinance or resolution over which the Boston City Council then had jurisdiction. Complaint, P 11; Attachment 1.9
   THIS ORDER WAS FILED TO ADDRESS THE BRA'S PURSUIT OF STATE LEGISLATION WHICH WAS INTENDED TO CIRCUMVENT CITY COUNCIL'S JURISDICTION OVER URBAN RENEWAL PLAN EXTENSION. IT WAS NOT, OBVIOUSLY, CALLING FOR A HEARING TO DECIDE ON PASSAGE OF STATE LEGISLATION.
   CITY COUNCIL DOES NOT HOLD HEARINGS AND MEETINGS ONLY ON ORDERS, ORDINANCES OR RESOLUTION OVER WHICH THEY HAVE IMMEDIATE VOTING RESPONSIBILITY, BUT ON MATTERS AFFECTING THE GOVERNANCE AND WELFARE OF THE CITIZENRY.
   Indeed, as evidenced by Council President Flaherty's June 3, 2003 memorandum to the Boston City Council, the alleged "meetings" with the BRA were informational sessions during which the City Council took no vote and made no decisions. See Memorandum of Council
   President Michael F. Flaherty, dated June 3, 2003, attached to Plaintiffs' Complaint as Attachment 2. Furthermore, the plaintiffs' complaint admits that the purpose of the June 19, 2003 meeting was for the BRA to provide information to the City Council. See
   Complaint P 13. Similarly, the City Council's January 20, 2005 meeting with representatives of Boston University was conducted to receive informationregarding a public health issue. See Memorandum of Council President Michael F. Flaherty, dated January 20, 2005,
   attached to Plaintiffs' Complaint as Attachment 9. However, no quorum was required, no deliberation occurred and no vote was taken.
   In fact, according to the City of Boston Charter and the Rules of the Boston City Council, the Council may only deliberate and decide on matters that are properly before it in the form of resolutions, orders or ordinances. See St. 1948 c. 452, §17D; Rules of the
   Boston City Council, Rule 5. Mayor Thomas M. Menino transmitted the City Council Order regarding Urban Renewal Plan Extension on October 26, 2004. See Exhibit 1. Said Order was referred to the Planning and Economic Development Committee the same day. Id. The full
   Council passed the Order on December 15, 2004, and Mayor Menino approved the Order on December 23, 2004. See Exhibit 2. Therefore, the informational
   ______________________________9 The plaintiffs' insinuation that this measure was not scheduled for hearing by City Council President Flaherty is false and misleading. City Council records show that Docket No. 000294 was duly referred to Council's Committee on
   Planning and Economic Development on February 5, 2003 and that it was ultimately placed on file without action on December 17, 2003. See Exhibit 4.
   WHAT DOES IT MEAN TO BE "PLACED ON FILE"? I DON'T BELIEVE THERE WAS EVER A HEARING. THIS IS IMMATERIAL.
   11
   sessions held with the BRA, referred to in PP 13,14,15 and 17 of plaintiffs' complaint, did not violate the Open Meeting Law, as the Urban Renewal matter was not properly before the Council prior to October 26,2004. Thus, before Mayor Menino transmitted the Order,
   the City Council could not have "deliberated" on its contents.
   Moreover, although the plaintiffs claim that these alleged "meetings" do not meet the enumerated exceptions listed in G.L. c. 39, § 23B, (see Complaint 127) the City Council never intended to hold an executive session, and further, the informational sessions do not
   meet me definition of executive session. See G.L. c. 39, § 23A. Therefore, the exceptions to the Open Meeting Law do not apply to such informational sessions. Since these informational sessions do not meet the definitions of "meeting,""executive session" or
   "deliberation," the plaintiffs' claim that the Boston City Councilviolated the Open Meeting Law is completely without merit, and, therefore, theircomplaint should be dismissed as a matter of law.
   Even assuming arguendo that the City Council's informational sessions with theBRA violated the Open Meeting Law, any such violations were cured by the dulynoticed, open session of the City Council held on December 15, 2004 during which the-Urban Renewal Plan
   Extension was passed. See Benevolent & Protective Order of Elks,Lodge No. 65, & others v. City Council of Lawrence, 403 Mass. 563, 566 (any violationof the Open Meeting Law through certain private, individual consultations between a citycouncil's president and
   other members of the council had been cured by subsequentcouncil meetings, held in compliance with the statutory requirement, before the actionwas commenced). The December 15, 2005 session was held prior to the filing of theinstant complaint thus curing any alleged
   violation of the Open Meeting Law.
   12
   4. The Plaintiffs failed to show that the alleged "meetings" were relative to matters over which the City Council has supervision, control, jurisdiction or advisory power.
   As stated above, governmental bodies can only be said to have conducted a "meeting" if "a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or
   advisory power is discussed or considered..." G.L. c. 39, § 23A (emphasis added). Furthermore, a governmental body can only "deliberate" on "public business within its jurisdiction." G.L. c. 39, § 23A (emphasis added). It is clear that the City Council's alleged
   "meetings" did not violate the Open Meeting Law, as the subject matter of these sessions were relative to matters over which the City Council has no supervision, control, jurisdiction or advisory power.
   The City Council's January 20,2005 Tularemia Briefing regarding the Boston University tularemia outbreak is a matter of public health. Such matters are the exclusive province of the Boston Public Health Commission, which is "not subject to the supervision of any
   other department, commission, board, bureau, agency or officer of the city..." St. 1995 c. 147, § 3(a). Since the Public Health Commission has exclusive jurisdiction over public health matters in the City of Boston without oversight from other official government
   bodies, the City Council's briefing on the Tularemia incident did not violate the Public Meeting Law, as the City Council could not decide or deliberate toward a decision on a matter of public health.
   THE CITY COUNCIL IS PURPORTING THAT IT HAS NO POWER OVER ANYTHING IN BOSTON, AND THEREFORE ITS CLOSED MEETING PRACTICES CANNOT DO ANY HARM. THIS IS A POOR DEFENSE STRATEGY; COUNCIL CAN NOT EXCUSE ITSELF FROM OBEYING THE LAW BECAUSE IT IS A WEAK BODY BY BOSTON'S
   CHARTER AND PLANNING STRUCTURE.
   THIS IS SPECIFICALLY UNTRUE IN THE MATTERS INVOLVED IN THIS CASE. CITY COUNCIL'S VOTE WAS REQUIRED ON THE EXTENSION OF THE URBAN RENEWAL PLANS. COUNCIL'S HEARING AND MEETINGS ON THE HAZARDS OF THE BIOSAFETY LAB WERE UNDERTAKEN BECAUSE CONSTITUENTS WERE CONTACTING
   THEIR COUNCILORS TO PROTECT THEM, AND SOME COUNCILORS WERE PROPOSING AN ORDINANCE BARRING SUCH LABS IN BOSTON.
   13
   5. The Plaintiffs failed show that the City Council was conducting "public business."
   The Boston City Council is the legislative body of the city." See St. 1948, c. 452, § 11, as appearing in St. 1951, c. 376, § 1. The City Council may not "directly or indirectly .. . take part in the employment of labor, the making of contracts, or the purchase of
   materials, supplies or real estate;... nor in the conduct of the executive or administrative business of the city or county; nor in the appointment or removal of any city or county employee; nor in the expenditure of public money except such as may be necessary for
   the contingent and incidental expenses of the city council." City Council of Boston v. Mayor of Boston. 383 Mass. 716, 723 (1981); see St. 1948, c. 452, § 17G, inserted by St. 1951, c. 376, § 1. The City Council's authority is limited largely to a check on the
   mayor's executive function through the power of appropriation. Id.; see St. 1948, c. 452, § 17D, inserted by St. 1951, c. 376, § 1. Therefore, matters that are within the scope of "public business" upon which the City Council may deliberate and decide are equally
   limited. Although there is no prohibition against the City Council discussing matters of public concern, such as the circumstances surrounding the accidental exposure of Boston University personnel to an infectious disease, such discussions are separate and apart
   from doing "public business," since, as explained above, the City Council is powerless to deliberate or decide on any action beyond its jurisdiction. Therefore, the plaintiffs have failed to show that any of the alleged "meetings" violate the Open Meeting Law, as
   such "meetings" required no quorum and no deliberations or decisions on matters
   CITY COUNCIL HAD JURISDICTION OVER THE EXTENSION OF THE BRA'S URBAN RENEWAL PLANS. THE BRA STARTED TO SEEK A BLANKET EXTENSION OVER THE PLANS IN NOVEMBER 2003 VIA THE URBAN RENEWAL TASK FORCE (SEE TIMELINE).
   THESE MEETINGS DID NOT REQUIRE A QUORUM BECAUSE THEY WERE NOT VOTING MEETINGS. BUT THEY WERE DELIBERATION MEETINGS, AND THAT IS THE CRITERION FOR THE OPEN MEETING LAW.
   14
   within the scope of the City Council's jurisdiction occurred. Thus, the plaintiffs' complaint should be dismissed as a matter of law.
   THE RELIEF SOUGHT BY THE PLAINTIFFS IS OVERLY BROADThe plaintiffs request inter alia that the Court invalidate the December 15, 2004 vote of the City Council, which passed the Urban Renewal Plan Extension Order. Such relief is overbroad and not appropriate in light
   of the claimed allegations. Specifically, the December 15, 2004 vote was cast after a public hearing during which a quorum of the City Council publicly deliberated and passed the Order transmitted by Mayor Menino on October 26, 2004. This session was a "meeting" of
   the City Council as defined by G.L. c. 39, §23B, and, therefore, its decision to pass the Order should not be invalidated due to allegations regarding other alleged "meetings" during which no such deliberation or decision occurred. Furthermore, as stated above, the
   duly noticed December 15,2005 session, during which the City Council deliberated the same issue complained of by the plaintiffs, cured any alleged violation of the Open Meeting Law. See Benevolent & Protective Order of Elks, Lodge No. 65, & others v. City Council
   ofLawrence. 403 Mass. 563, 566. Therefore, the plaintiffs' request to invalidate the Council's vote, as well as their request for an order requiring the Council to "carry out the provisions of the Open Meeting Law at all future meetings" and all other requests
   should be denied. .
   ALL THE COUNCIL MEETINGS WITH THE BRA FROM JUNE 3 2003 UNTIL THE DECEMBER 2004 VOTE WERE ABOUT THIS VOTE; THE COUNCILORS DID DELIBERATE DURING THESE MEETINGS. SEE ATTACHED LETTER FROM COUNCILOR MICHAEL ROSS TO CONSTITUENTS WHO CONTACTED HIM ABOUT HIS APPROVING VOTE
   ON THE EXTENSION, ACKNOWLEDGING EXTENSIVE DELIBERATIONS: "...I ARGUED THIS POINT REPEATEDLY DURING THE COUNCIL'S DELIBERATIONS WITH THE BRA." THIS LETTER ALSO DESCRIBES REFORMS TO THE BRA'S PROPOSAL WHICH WERE NEGOTIATED BY THE COUNCILORS DURING THESE DISCUSSIONS.
   15
   CONCLUSION
   For the foregoing reasons, the plaintiffs failed to state a claim pursuant to G.L. c.39, §23B for which relief can be granted.
   WHEREFORE, The Boston City Council and Michael F. Flaherty, as CityCouncil President, respectfully requests that this Honorable Court dismiss the Complaintagainst them with prejudice and enter separate and final judgment.
   CERTIFICATE OF SERVICE
   I hereby certify that on this day a truecopy of the above document was servedupon each party appearing pro se by U.S.class, postage paid.
   Ronald G. Nelson
   Respectfully submitted,Defendants BOSTON CITY COUNCILand Michael F. Flaherty, as CityCouncil President,
   By their attorney,Merita A. HopkinsCorporation Counsel
   Mark Sweeney, BBO# 490160Ronald G. Nelson, BBO # 652035Assistant Corporation Counsel.City of Boston Law DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4097
   16

http://electkevin.blogspot.com
By Kevin McCrea

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance