DRAFT FOR REVIEW BY CITY COUNCIL

November 4, 2013

Amy Nable, Assistant Attorney General
Director of Division of Open Government
Office of the Attorney General
One Ashburton Place
Boston, MA 02108

Re: Action taken by Cambridge City Council on Open Meeting Law complaint of Charles Teague dated October 17, 2013

Dear Ms. Nable:
On behalf of the Cambridge City Council, I am writing to advise you pursuant to 940 CMR 29.05(5) of the action taken by the City Council on the Open Meeting Law complaint of Charles Teague. A copy of Mr. Teague's complaint dated October 17, 2013 is attached as Exhibit "A." Mr. Teague alleges that the actions of three members of the nine-member Cambridge City Council during a City Council meeting occurring on April 8, 2013 violated the Open Meeting Law. The City Council disagrees for the reasons stated herein.

FACTS

The Cambridge City Council is composed of nine Councillors. Five City Councillors constitute a quorum. The full City Council meets weekly on most Monday evenings throughout the year, except during July and August. At its Monday evening meeting on April 8, 2013, the City Councillors were considering a complex set of zoning ordinance amendments related to properties owned by the Massachusetts Institute of Technology in the Kendall Square area of Cambridge, which amendments would add a new Planned Unit Development District (known as PUD-5) in Section 13.80 to the Cambridge Zoning Ordinance. As part of the proposed new zoning, MIT had submitted a commitment letter to the City describing obligations that MIT would perform for the public benefit if the zoning amendment were adopted by the City Council. At the April 8 meeting, the City Council considered and voted on a number of amendments to the zoning ordinance and the commitment letter before them. One City Councillor, Minka vanBeuzekom, proposed an amendment to the zoning ordinance language that Mr. Teague denotes as the "Net Zero Emissions Amendment," (hereafter "NZEA") which in essence would have required that the buildings constructed by MIT in the area affected by the new zoning laws meet energy standards that did not exist elsewhere in the Cambridge Zoning Ordinance and had not previously been applied to any other buildings in Cambridge. Adding the amended language to the proposed ordinance language before the City Council required a majority vote of five members of the City Council. The initial vote at the meeting was five members in favor, three members against it, with one member voting present. A few moments later, Mayor Henrietta Davis announced publicly that she was changing her vote from a vote in favor to a vote of present. The NZEA thereupon failed with only four members in favor, being less than a majority. Mayor Davis explained her change of vote at the meeting as being based on her learning that passage of the NZEA might sink the entire project and jeopardize MIT's ability to see the project through, and because the zoning ordinance and MIT's development plans and obligations set forth in its commitment letter are tied together. No City Councillor challenged the right of Mayor Davis to change her vote on the NZEA. No City Councillor challenged the ruling of the chair (being Mayor Davis) that the NZEA failed. Then, the City Council voted on the enactment of the entire zoning ordinance, as amended, without the NZEA, and the motion passed seven members in favor, one member opposed, with one member voting present. The commitment letter, as it had been revised, was then adopted by the City Council as well. No City Councillor made a motion for reconsideration after the votes were taken, as permitted by the Rules of the City Council.¹

1  City Council Rule 16 provides: "A question having been taken, it shall not be in order for any member to move reconsideration thereof at the same meeting. A motion to reconsider may be made at the next meeting, provided written notice of such motion has been filed with the City Clerk within thirty-six hours of the day of the vote, Saturdays and Sundays to be excluded in the computation of the thirty-six hours. No more than one motion for reconsideration of any votes shall be entertained. Any member may move reconsideration; if reconsideration is not moved prior to the adjournment of the next regular or special meeting called for that particular purpose, the action taken by the City Council stands."

Mr. Teague's Open Meeting Law Complaint does not identify the public body complained of, but states that the Complaint is against the "City of Cambridge," and that specifically, City Councillors David Maher, Kenneth Reeves and Mayor Henrietta Davis, being three of the nine City Councillors, violated the Open Meeting Law. Mr. Teague alleges that, during the City Council's April 8 public meeting, after the initial vote passing the NZEA, Councillor Maher left the meeting briefly to speak privately with MIT representatives while Councillor Reeves was speaking at the meeting ("implementing a diversion" according to Mr. Teague). Mr. Teague alleges that when Councillor Maher returned to the meeting, he spoke privately (on camera) with Mayor Davis who then reversed her vote on the NZEA, resulting in its defeat.

Mr. Teague acknowledged in a related complaint letter he sent on October 9, 2013 to Assistant Attorney General Margaret Hurley that the thirty day limitation period for filing an Open Meeting Law Complaint regarding the actions of April 8, 2013 expired long ago. See attached letter dated October 9, 2013 from Mr. Teague to Assistant Attorney General Margaret Hurley and Exhibit "A" thereto entitled "Chronology of Citizen's Petitions," at paragraph 3, attached as Exhibit "B" hereto. However, he now seeks to evade the bar of the limitation period by stating that he just recently became aware of a photograph that has been on a person's Twitter site since April 8 showing Councillor Maher standing in a doorway near MIT representatives.

DISCUSSION

1. Mr. Teague's complaint is untimely.
Mr. Teague's Open Meeting Law Complaint should be dismissed because it is untimely. G.L.c.30A, §23(b) requires that an Open Meeting Law Complaint "shall be filed within 30 days of the date of the alleged violation." The Attorney General's regulations, at 940 CMR 29.05(3), provide that if the alleged violation of the Open Meeting Law "could not reasonably have been known at the time it occurred, then [a Complaint may be filed] within 30 days of the date it should reasonably have been discovered." The alleged violations occurred at a meeting on April 8, 2013. Any Open Meeting Law Complaint based on actions at that meeting had to be filed by May 8, 2013. Mr. Teague filed his Complaint on October 17, 2013, over five months late. Mr. Teague himself acknowledged in a related complaint letter dated October 9, 2013 that he sent recently to Assistant Attorney General Margaret Hurley that the thirty (30) day limitation period for filing an Open Meeting Law Complaint regarding the actions of April 8 expired long ago. See Exhibit B.

Mr. Teague's attempt to rely on "new evidence" to assert that he could not reasonably have known of the alleged violations until he saw a still photograph this month of Councillor Maher near MIT representatives should not be credited for a number of reasons. First, the Division of Open Government has stated consistently that: "Events that occur during an open session meeting are reasonably discoverable at the time they occur." OML Declination 4-30-13, p.l. Similarly, in OML Declination 11-5-12, the Division of Open Government stated: "Acts that take place during an open session meeting are discoverable at the time they occur. That the complainant chose not to attend that particular meeting does not change the fact that any member of the public could have attended the meeting and learned of the alleged violations on that date." The reasonableness standard is objective, not subjective; that is, it is not dependent on whether a particular individual personally learned of information beyond the limitation period. Second, the "new evidence" itself, the photo, is not actually new. It was apparently posted on Twitter the evening of the meeting. That it may have been "new" to Mr. Teague several months later is not relevant for determining the expiration of the limitation period. Third, the photo at issue is silent; it gives no indication of the content of communications, if any, among the individuals pictured. Therefore, it in no way supports allegations of an Open Meeting Law violation.

2. There was no Open Meeting Law violation.
No further action is necessary if the Open Meeting Law Complaint is dismissed as untimely. If the Complaint is not dismissed as untimely, it fails in any event for the following reasons.

a. There must be five City Councillors to constitute a quorum.
The Complaint alleges that three City Councillors violated the Open Meeting Law by deliberating only with each other. Even if that were true, because a quorum of the City Council is five, there could be no "deliberation" as defined in the Open Meeting Law among only three City Councillors. See, G.L.c.30A, §18 ("Deliberation [is] an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body .... "). Therefore, a discussion among three City Councillors does not violate the Open Meeting Law.

b. A member of a public body taking a break during a meeting and speaking briefly with a member of the public is not an Open Meeting Law violation.
The Complaint alleges that one City Councillor left the public meeting, spoke briefly with MIT representatives, and then returned to the meeting. The Attorney General's Division of Open Government has statutory authority to determine "whether there has been a violation of the open meeting law." G.L.c.30A, §23(c). There is no provision of the Open Meeting Law that prohibits the complained of behavior. One City Councillor is not a quorum. Therefore, a single City Councillor speaking with members of the public outside of a public meeting is not engaging in prohibited "deliberation."

c. The Mayor's change of vote at the meeting of April 8, 2013 is not an Open Meeting Law violation.
The final allegation in the Complaint is that the Mayor's change of vote during the public meeting of April 8, 2013 violated the Open Meeting Law. However, there is no provision of the Open Meeting Law that prescribes what procedure must be followed for a member of a public body to change her vote. Therefore, a change of vote does not violate the Open Meeting Law.

In addition to its not violating the Open Meeting Law, the vote change was not fatally flawed from a procedural perspective. The Mayor orally explained her vote change immediately after changing it, no other City Councillor objected to her vote change, and minutes later, the City Council voted on the enactment of the entire zoning ordinance, as amended, without the NZEA, and the motion passed seven in favor, one opposed, with one member voting present. The City Council's actions after the vote change essentially ratified it.² Also, as stated in City Council Rule 16, the absence of a timely motion for reconsideration by any City Councillor means that "the action taken by the City Council stands."

2  See, Roberts Rules of Order, §45, p.409: "Assembly's Prerogative in Judging Voting Procedures. The assembly itself is the judge of all questions arising that are incidental to the voting or the conduct of the votes."

3. Even if the practices complained of were timely asserted violations of the Open Meeting Law, the remedies requested by Mr. Teague are extreme and inappropriate.
Even if the Complaint had been timely and there had been Open Meeting Law violations, the three remedies requested by Mr. Teague in his Complaint are inappropriate. First, he asks for the public body to admit to an intentional violation of the Open Meeting Law even though there were no Open Meeting Law violations, and even if there were a violation, there is no indication that any such violation was intentional. "Intentional violation" as defined in 940 CMR 29.02 requires specific intent to violate the law, acting with deliberate indifference to the law's requirements, or acting contrary to advice from a court or the Attorney General regarding specific conduct. None of those elements is present in this case.

Second, Mr. Teague asks that the zoning ordinance enacted at the April 8, 2013 meeting be altered to include the NZEA. This would effect a significant change to a complex zoning law that has existed now for over six and a half months, and upon which those affected by the ordinance have no doubt acted in reliance. This is unwarranted because: the Open Meeting Law was not violated; Mayor Davis explained her vote change publicly at the meeting; no City Councillor objected; after the vote change, the City Council enacted the zoning ordinance without the NZEA; and no City Councillor moved subsequently for reconsideration of the vote. These actions constitute subsequent independent deliberative action taken by the City Council that cured any previous violations. Violations of the Open Meeting Law may be cured by subsequent independent deliberative action taken in a full meeting. McCrea v. Flaherty, 71 Mass.App.Ct. 637, 642 (2008). In addition, state law, at G.L.c.40A, §5 and G.L.c.40, §32, provide a ninety (90) day period after the publication of an enacted zoning ordinance³ to mount a legal challenge based on procedural defects to the enactment of a local zoning amendment. That limitation period expired months ago, and there was no filing of a challenge to the zoning amendment within the limitations period.

3  The MIT zoning amendment at issue was published after enactment on April 18, 2013.

Third, Mr. Teague asks that Councillors Maher and Reeves not be appointed as chairs of any City Council committees for the next two-year term. The appointment of City Council committee chairs in the next term will be made at the next Mayor's discretion.⁴ If Councillors Maher and Reeves are re-elected by Cambridge voters, it would be inappropriate in response to this Complaint to limit the ways in which these City Councillors will be allowed to serve the citizens of Cambridge in the future who elect them. It would also be inappropriate for there to be any interference with the next Mayor's authority to appoint City Council committee chairs as he/she sees fit.

4  Mayor Davis is not running for re-election as a City Councillor for the next term. Even if she were running and were elected, she would not necessarily be Mayor, as the nine City Councillors vote to elect a new Mayor after they are sworn in at the beginning of each new term.

As required by 940 CMR 29.05(5), the City Council reviewed the allegations of this Open Meeting Law complaint within 14 business days of receiving it. At its meeting of November 4, 2013, the City Council voted to adopt this letter as its response and resolution. Mr. Teague is being informed ofthe City Council's action by copy of this letter.

Very truly yours,
Donna P. Lopez
City Clerk

cc. Charles Teague
23 Edmunds Street
Cambridge, MA 02140