Boston City Council: What Are They Hiding?

Journalism professor Dan Kennedy has a great post today at Media Nation about the Boston City Council's review of an 80-page report that it commissioned urging the state legislature to exempt it from the Massachusetts open meetings laws. He takes issue with statements made by councilors complaining that the law is "confusing" and creates a "chilling effect." Remarkably, the report contends that the open meetings laws violate the councilors' free speech rights, according to the Boston Herald. I'd like to see the councilors make that claim to a judge with a straight face.  I heartily agree with Kennedy's biting analysis:

Councilor Michael Flaherty is quoted as saying that the law creates a "chilling effect," claiming, "You can't even have a conversation with colleagues in the hallway or in a session." That's an interesting observation. The law says that a quorum — that is, a majority — of members cannot discuss official business outside the context of a legal, publicly announced meeting.

If Flaherty had said, You can't even have a conversation in the hallway with six or more colleagues about city business, that would be accurate. It would also underscore the absurdity of his complaint.

The Massachusetts open meetings laws, the main provisions of which are located at Mass Gen. Laws. ch. 39, §§ 17, 23A, 23B, 23C and Mass Gen. Laws ch. 30A, §§ 11A, 11A 1/2, 11B, 11C, only apply to gatherings of a quorum of a governmental body's members where those attending members discuss or consider official business within the scope of their official authority.  A "quorum" means a simple majority of members of the governmental body. Because the Boston City Council has 13 members, a quorum is 7 councilors. The open meetings laws do not apply to a chance meeting or a social gathering at which matters relating to official business are discussed so long as no final agreement is reached. See Commonwealth of Massachusetts Office of the Attorney General, Open Meeting Law Guidelines, at 8 (2008).

This is not rocket science. It's hard to see how these councilors have gotten so confused that they're afraid of having conversations in the hallway. In recent litigation, the City Council seemed to have a pretty good grasp on the mathematical details, when it argued to the Appeals Court of Massachusetts that it could legitimately hold closed meetings by rotating councilors through a room to allow deliberation while ensuring that a majority of councilors were never present at the same time.  The Massachusetts appeals court rejected "this strained interpretation of statutory language, asserted for the sole purpose of defeating the fundamental purpose of the law."  McCrea v. Flaherty, 885 N.E.2d 836, 845 (Mass. App. Ct. 2008).

One has to wonder why the Council is so frightened of government transparency.  I hope the Mayor, whose approval is required in order for the Council to seek an exemption from the state legislature, will see through this baseless effort to weasel out of the straightforward requirements of the law.

For additional information on the Massachusetts open meetings laws, see the Open Meetings Laws in Massachusetts section of our legal guide.

Update:  Robert Ambrogi has an excellent post on the report.

Jurisdiction: 

Subject Area: 

Comments

The censoring of Council communications.

Our Boston City Council's budget includes about a hundred people and the stenographic services grandfathered in by E. Fritch Associates. Regrettably the stenographic software isn't up to date scopist software so we can have closed captioning on Council cablecasts and webcasts of public meetings. Council central staff and staff director A. Braga routinely deflect or delay access to public records of the Council such as the stenographic machine output.

It's a kind of extortion where if you ask for information from the Council you're told if you bother us for information we will cut you off Council email lists. Ironically the communications resources of our Boston City Council could be made moe available at http://cityofboston.gov/citycouncil For example Council committee meetings' public notices could be posted on the web instead of only the abbreviated calendar listings for public meetings. Minutes of our Council are too brief to be understood by most citizens, references to previous transactions in the Council Minutes are ambiguous and no cross references are provided for related Docket numbers. The City Clerks office is adamant about their denials and shortcomings instead of welcoming feedback about improving Council communications.

by Paul Walkowski. Report Tabs 1-5, 6, 7, 8, 9, 10, 11, 1

Please send Tabs 1-5, 6, 7, 8, 9, 10, 11, 12, 13 for the
Report to the President
and Committee on Rules and Administration
August 2008
Addressing the Effect of Judicial Decisions
on the Boston City Council's
Operation and Statutory Independence
Prepared by:
Paul Joseph Walkowski
Special Projects Assistant to the President and
Committee on Rules & Administration

Tabs 1-5, 6, 7, 8, 9, 10, 11, 12, 13 aren't in the Report
and are listed in the Table of Contents as

          > Table of Contents
          >
          > Letter to the President
          > About the Author
          > Executive Summary ........................... Page 2
          > Overview & History .......................... Page 4
          > Form of government & methodology ............ Page 6
          > Case Summaries .............................. Page 8
          > Effect of Decisions ......................... Page 24
          > The importance of the city council's
          > internal exemption ...................... Page 26
          > A. Generally ............................ Page 27
          > B. The Historic basis for exemption...... Page 30
          > Remedial Responses .......................... Page 40
          > Proposed G.L. Affecting the
          > relationship between the executive and
          > legislative branches of government ...... Page 41
          > Political options ....................... Page 41
          > Addressing the Open Meeting Law ......... Page 43
          > Open Meeting Law changes necessary ...... Page 64
          > Proposed G.L. on Open Meeting Law
          > Option 1 ................................ Page 69
          > Option 2 ................................ Page 70
          > Option 3 ................................ Page 71
          > Open Meeting Law ........................ Page 72
          > Conclusions ................................. Page 76
          > A note about the salary ordinance ....... Page 78
          > Case Law .................................... Tabs 1-5
          > 1821 Charter ................................ Tabs 6
          > 1854 Charter Revisited ...................... Tab 7
          > 1885 Charter, Shift of Executive Powers ..... Tab 8
          > 1909 Charter, Consolidation of Power ........ Tab 9
          > 1948 Plan A Charter Offered ................. Tab 10
          > 1951 Charter Revisions, Council Exemption ... Tab 11
          > 1910 Finance Commission Report .............. Tab 12
          > 1909-1910 List of Incidental Expenses ....... Tab 13
          > Presentation of Charter History ............. Tab 14

Cc:
http://www.citmedialaw.org