McCrea v. Flaherty

• Decision Date: 01 May 2008
• Docket Number: No. 07-P-224.,07-P-224.
• Parties: Kevin McCREA & others<SMALL><SUP>1</SUP></SMALL> v. Michael F. FLAHERTY & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

885 N.E.2d 836

71 Mass. App. Ct. 637

Kevin McCREA & others¹ v. Michael F. FLAHERTY & another.²

No. 07-P-224.

Appeals Court of Massachusetts, Suffolk.

Argued December 6, 2007.

Decided May 1, 2008.

Rory FitzPatrick, Boston (William G. Potter with him) for the defendants.

Kathleen Devine, pro se.

Shirley Kressel, pro se, was present but did not argue.

Present: COHEN, KAFKER, & GRAINGER, JJ.

GRAINGER, J.

The city council of Boston (council) finds itself, not for the first time, on the losing end of a determination that it has improperly excluded the public from its deliberations. Specifically, the defendants, Michael Flaherty in his capacity as president of the council and the council itself, appeal the grant of summary judgment in favor of the plaintiffs, three residents of Boston who complained of multiple violations of the open meeting law, G.L. c. 39, §§ 23A-23C.

Background. The complaint, amended for reasons not germane here, alleged repeated violations of the open meeting law from 2003 through 2005. The plaintiffs asserted that on at least ten separate occasions the defendants met to discuss public issues falling within the council's supervision, control, jurisdiction or advisory power as set forth in § 23A of the statute, but without providing public notice or public access to the meetings as required by § 23B.³ The plaintiffs alleged that six private meetings were held in violation of the statute between June 3 2003, and the end of 2004 to deliberate on the subject of extending Boston's urban renewal plans as administered by the Boston Redevelopment Authority (BRA). Further, they alleged that on January 20, 2005, the council held a meeting to discuss a tularemia⁴ outbreak at the Boston University biolaboratory, again excluding the public from its discussion of a matter of public import in violation of the open meeting law. Finally, the plaintiffs alleged that three more BRA-related meetings, on January 13, February 17, and March 24, 2005, violated the statute. In addition to their request for invalidation of the council's vote on December 15, 2004, approving the extension of the BRA urban renewal plans, see note 3, supra, the plaintiffs sought injunctive relief directing the council to comply with the statute, and their costs for bringing the action.

At issue in this appeal is the ruling on the defendants' motion for summary judgment. The motion was premised on two theories: (1) that the meeting held on December 15, 2004 (see note 3, supra), was properly noticed and thus "cured" any prior lack of compliance in the previous six meetings, and (2) that the four meetings held after that date were not subject to the open meeting requirement, either because there was no quorum present, because they did not concern any matter over which the council had "supervision, control, jurisdiction or advisory power," or because, in the case of the three meetings concerning urban renewal, they were scheduled by the director of the BRA rather than by the council, and thus were not a "corporal convening ... of a governmental body." G.L. c. 39, § 23A, inserted by St. 1975, c. 303, § 3.

The motion judge denied the defendants' motion and, moreover, rendered summary judgment for the plaintiffs. See Mass. R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). The judge declared that the council had violated the statute on eleven occasions,⁵ and imposed a fine of $1,000 for each violation. The judge further issued an injunction stating: "The Boston City Council and any committee thereof shall comply with the requirements of the Open Meeting Law, G.L. c. 39, Section 23B in the future. This shall include compliance with the requirements relating to executive session...."

The defendants appeal. We refer to additional facts and the parties' affidavits as they become pertinent to the issues.

Discussion. We begin with the familiar principle that "[t]he standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass.R.Civ.P. 56(c). "[The reviewing court] may consider any ground supporting the judgment." Augat, Inc., supra at 120, 571 N.E.2d 357. Our review of the judge's legal conclusions is de novo. Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 243, 867 N.E.2d 300 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 907, 169 L.Ed.2d 729 (2008).

The defendants have raised issues and asserted arguments based on the language of, and interaction between, specific provisions of the statute. It is therefore necessary to consider the purpose of the law, and the manner in which the Legislature has chosen to carry out that purpose. We begin with the presumption of public access to the workings of government: "All meetings of a governmental body shall be open to the public." G.L. c. 39, § 23B, first par., as appearing in St.1976, c. 397, § 6. The requirement of public access requires a meaningful opportunity, created in advance, for public presence: "[N]otice of every meeting of any governmental body shall be filed with the clerk of the city ... in which the body acts, and the notice or a copy thereof shall, at least forty-eight hours . . . prior to such meeting, be publicly posted in the office of such clerk or on the principal official bulletin board of such city." G.L. c. 39, § 23B, sixth par.

The Legislature has recognized that not everything done by public officials and employees can or should occur in a public meeting. Public officials confer routinely on administrative and logistical matters, and meet on occasion for purposes unrelated to their public function. Furthermore, disclosure of certain matters is not always in the public interest.⁶ Therefore, the Legislature has created exceptions to the presumption of access. These are found in the executive session provisions of § 23B and in § 23A's definitions of statutory terms.

In order for a "meeting" to occur there must be "a corporal convening and deliberation" by a governmental body. G.L. c. 39, § 23A. "Deliberation," in turn, requires a "verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction." Ibid. Thus, gatherings unconnected to the consideration of public business and small groups of officials that do not meet the minimum number required to conduct public business are exempted. These exceptions, which are generally crafted to avoid "unduly hamper[ing]" public officials in performing their duties, Ghiglione v. School Comm. of Southbridge, 376 Mass. 70, 72, 378 N.E.2d 984 (1978); see G.L. c. 39, § 23B, fourth par., are construed narrowly in keeping with the law's overriding purpose, and we decline to imply further exceptions. See District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 632-633, 481 N.E.2d 1128 (1985).

Moreover, the statute provides for public access to the decision-making process when it is in a formative stage, several steps removed from the eventual result. Thus the "verbal exchange" requirement of § 23A has been found to be satisfied by a session in which the body "gather[s] information to aid it in arriving at a decision." Gerstein v. Superintendent Search Screening Comm., 405 Mass. 465, 470, 541 N.E.2d 984 (1989) (where screening committee was charged with recommending candidates, interviews consisting of "questions asked by the committee members, supplemented by the candidates' answers, conveyed information about the candidates to the committee members present" and thus constituted "verbal exchange"). See District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. at 634 n. 6, 481 N.E.2d 1128 (consultation of board with its attorney regarding proposed contract was "meeting"). In sum, courts will generally construe the provisions of open meeting laws liberally to reflect their purpose of "eliminat[ing] much of the secrecy surrounding the deliberations and discussions on which public policy is based." Ghiglione v. School Comm. of Southbridge, 376 Mass. at 72, 378 N.E.2d 984. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 806 n. 9, 711 N.E.2d 589 (1999).

With this background in mind, we examine the issues as they arise in connection with each meeting, or group of meetings.

1. The BRA meetings. (a) Did the meeting of December 15, 2004, "cure" the previous meetings? Relying principally on Benevolent & Protective Order of Elks, Lodge No. 65 v. City Council of Lawrence, 403 Mass. 563, 531 N.E.2d 1254 (1988), the defendants argued that the December 15, 2004, meeting, at which the council voted in favor of the BRA proposal, "cured" the previous violations of which the plaintiffs have complained. In Elks, the Supreme Judicial Court concluded that two properly noticed public meetings, which followed violations that may have occurred when the president of the city council privately conversed with other city council members, "made unnecessary an order [pursuant to § 23B], requested three months later, requiring that the meetings be open." Id. at 566, 531 N.E.2d 1254. Later case law has further recognized that violations of the open meeting law may be cured by subsequent "independent deliberative action" taken in a full meeting. Pearson v. Selectmen of Longmeadow, 49 Mass.App.Ct. 119, 125, 726 N.E.2d 980 (2000). See Allen v. Selectmen of Belmont, 58 Mass.App.Ct. 715, 718, 720, 792 N.E.2d 1000 (2003). Such independent deliberative action "help[s] to accomplish the purpose of the open meeting law." Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence, 403 Mass. 531, 558, 531 N.E.2d 1233 (1988). See Pearson, supra at 125 n. 9, 726 N.E.2d 980. However, where the subsequent meeting is ...