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 List archives at http://lists.ufl.edu/archives/recmgmt-l.html Contact [log in to unmask] for assistance To unsubscribe from this list, click the below link. If not already present, place UNSUBSCRIBE RECMGMT-L or UNSUB RECMGMT-L in the body of the message. mailto:[log in to unmask]