ENSE PETIT PLACIDAM SVB LIBERTATE QVIETEM
http://en.wikipedia.org/wiki/Seal_of_Massachusetts

The Commonwealth of Massachusetts
District Attorney of Suffolk County
Daniel F. Conley

Office of the Legal Counsel
One Bullfinch Place
Boston MA 02114-2997

617 619-4000 telephone
617 619-4316 fax

June 1, 2007

Kevin J. Morrison, Esq.
General Counsel
Boston Redevelopment Authority
One City Hall Square
Boston MA 02201-4300

Gerald Autler, Project Manager
Harvard Allston Task Force
Boston College Task Force
Boston Redevelopment Authority
One City Hall Square
Boston MA 02201-4300

Re: Harvard Allston Task Force and Boston College Task Force
    a.k.a. Allston-Brighton Task Force and
    Allston-Brighton Community Task Force
    Applicability of GL c39 ss23A, 23B, 23C

Dear Attorney Morrison & Mr. Autler:

      As you ar aware, the Suffolk County District Attorney's Office
received an inquiry as to whether the Harvard Allston Task Force
("Harvard Task Force") and the Boston College Task Force
("BC Task Force") (collectively, the "Task Forces") are subject to the
requirements of GL c39 ss23A, 23B, 23C, collectively the
Open Meeting Law.

This complaint was sent to you, via facsimile, on April 19, 2007.

On April 27, 2007, this Office formally requested that the Boston
Redevelopment Authority ("BRA") respond to the complaint by
May 2, 2007, and indicate whether any of the factual allegations
contained therein are disputed.

Kevin Morrison, Esquire
Gerald Autler
June 1, 2007
Page 2 of 6

Subsequent efforts to obtain a response have also not been
answered.

This Office has not received such response and thus assumes that the
BRA concedes the facts alleged in the complainant's letter.

In light of that concession, and for the reasons set forth below, it
is the opinion of this Office that both of the Task Forces are subject
to the requirements of the Open Meeting Law and thus must provide
public notice of all meetings at least forty eight hours before the
meeting is held and disclose meeting minutes.

[ Should clearly state the legal authority of the district attorney
  in the matter. ]

       The Open Meeting Law applies to all "governmental bodies",
including "every board, committee or subcommittee of any district,
city, region, or town, however elected, appointed or otherwise
constituted." GL c39 s23A.

A "governmental body" further includes local redevelopment
authorities, such as the BRA. GL c39 s23A.

Where members of a "governmental body" meet to discuss public business
in private, even where members do not intend to vote on, or make a
final decision on issues, this action constitutes a "meeting" under
the Open Meeting Law.
Gerstein v Superintendent Search Screening Committee, 405 Mass. 465 1989;
District Attorney for the Plymouth District v. Board of Selectmen of
Middleborough, 395 Mass. 529 1985.

Thus, if there is a simple "exchange of views" by a simple majority of
the members of a governmental body on a public issue, then the
governmental body must comply with the requirements of the Open
Meeting Law. Id.

      Here, the Harvard Task Force was appointed to provide input and
feedback to Harvard University and the BRA regarding proposed
initiatives and development and, according to the BRA's website, to
serve as an "advisory board" to the BRA.

Kevin Morrison, Esquire
Gerald Autler
June 1, 2007
Page 3 of 6

Similarly, the BC Task Force was created to advise the BRA and Boston
College as to proposed initiatives and expansion.

These functions fall squarely under the tenets of the Appeals Court's
decision in Nigro v. Conservation Comm'n of Canton, 17 Mass App Ct 433 1984.

Specifically, Nigro held that a "governmental body" includes a
subcommittee of any board or commission of any city or town.  Id. at
434.

Moreover, a subcommittee or special purpose committee that contains
individuals who are not part of the parent group is still subject to
the requirements of the law if they are carrying out the delegated
functions or responsibilities of the parent body. Id.; see also
Attorney General's Open Meeting Law Guidelines.

Furthermore, the law is still applicable when the role of the
subcommittee extends only to making recommendations to the parent
board because "a subcommittee cannot formulate a recommendation
without deciding what it should be." Id. at 436.

      The BRA is responsible for filing and reviewing expansion
initiatives as part of the approval process for Harvard University's
proposed Allston campus.

Similarly, the BRA is responsible for filing and reviewing any
expansion initiatives and the institution's master plan, including
Boston College's expansion into the real property comprising the
former St. John's Seminary.

As the Task Forces solicit community input and advice regarding
expansion and development for both Harvard University and Boston
College and provide that information to the BRA for use in the
ultimate filing and reviewing of initiatives, the Task Forces are
carrying out the functions and responsibilities of the BRA and are,
therefore, subject to the requirements of the Open Meeting Law.

Kevin Morrison, Esquire
Gerald Autler
June 1, 2007
Page 4 of 6

      To date, both Task Forces have failed to comply with the
requirements of the Open Meeting Law.

Specifically, the members of the Harvard Task Force met in private on
April 9, 2007, with officials from Harvard University and the BRA to
discuss community benefits as part of the Article 80 regulatory
process.

It is this Office's understanding that the members entered into an
executive session without following the public notice procedures as
outlines in GL c39 s23B.

This meeting was a violation of the Open Meeting Law.

This violation, however, can be cured by making the minutes of this
meeting available to the public and, in the future, providing the
requisite notice for all Harvard Task Force meetings.

Similarly, the Harvard Task Force has failed to provide minutes for a
meeting that occurred on February 27, 2007.

Additionally, the Harvard Task Force failed to provide the requisite
forty eight hours notice prior to a March 28, 2007, subcommittee
meeting.

The complainant finally informed this Office that the Harvard Task
Force planned to meet again, privately, in April.

It is this Office's position that any Task Force meetings that are
conducted without comporting with the public notice requirements and
posting of meeting minutes will be considered a violation of the Open
Meeting Law. See GL c39 s23B.

      The BC Task Force has similarly violated the Open Meeting Law.

On April 17, 2007, the BC Task Force, along with members of the BRA
and officials from Boston College, met privately prior to a public
meeting.

This Office understands that representatives from Boston College
presented portions of their proposed master plan and answered
questions posed to them by BC Task Force members.

Kevin Morrison, Esquire
Gerald Autler
June 1, 2007
Page 5 of 6

This Office was further informed that when members of the public
arrived at the meeting, they were turned away by the BRA staff and BC
Task Force members.

Additionally, the BC Task Force met privately between March 20, 2007,
and April 9, 2007, and decided to form a subcommittee regarding issues
concerning abutters.

No public notice was provided in advance of this meeting.

These meetings were violations of the Open Meeting Law.

These violations, however, can be cured by making the minutes of the
meetings available to the public and, in the future, providing the
requisite notice for all BC Task Force meetings.

Finally, the complainant informed this Office that the BC Task Force
failed to record and post minutes of a meeting that occurred on
January 16, 2007.

The Open Meeting Law mandates that "the records of each meeting shall
become a public record and be available to the public." GL c39 s23B.

As such, it is imperative that meeting minutes are recorded and made
available.

      In order to satisfactorily resolve these complaints, the Task
Forces must cure the above violations by making available to the
public meeting minutes for any meeting, including subcommittee
meetings, that have occurred including, of course, meetings that were
not publicly disclosed.

The Task Forces should also be instructed by the BRA on the
applicability of the Open Meeting Law and of the requirements of the
Open Meeting Law.

If the Task Forces cure the current violations, take steps to prevent
future violations, and agree to conduct future meetings in public,
with both the required notice and disclosure of meeting minutes, this
Office will consider the complaint to have been satisfactorily
resolved.

Kevin Morrison, Esquire
Gerald Autler
June 1, 2007
Page 6 of 6

      Thank you for you attention to this matter and for your
cooperation with this Office's investigation. If you have any
questions, please contact me at 617 619-4079.

Sincerely,
Daniel F. Conley, District Attorney
By His Assistant
Janis DiLoreto Noble
Assistant District Attorney

cc:
Michael Pahre
William Sinnott, Corporation Counsel for the City of Boston

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