Tuesday, May 18, 2010

Open Meeting Law Violation?

Chairman Brunelle has claimed executive session privilege for the pre-meeting BOS discussion regarding the Casino issues, based on her flawed belief that "potential litigation" is an exception. It is not in this case!

Potential litigation is an exception where the litigation is imminent and certain. It cannot be the case here. The dispute provision on page 16 of 21 does NOT allow litigation until after the 10 day Notice and good faith negotiations have occurred. In other words, there is no litigation until after the notice and negotiations to resolve the dispute.

There is no basis for having had the executive session on Monday and the minutes and content of the meeting must be disclosed immediately. An injunction would be fairly straight forward here.

As it says in the Open Meeting Law Guide"
Litigation strategy:
Discussions concerning strategy with respect to ongoing litigation obviously fits within this purpose, but again only if an open meeting may have a detrimental effect on the litigating position of the governmental body. Discussions relating to proposed litigation are not covered by this exemption unless that litigation is clearly and imminently threatened.21 That a person is represented by counsel and supports a position adverse to the governmental body's does not mean litigation is imminently threatened. Nor does the fact that a newspaper reports a party has threatened to sue mean imminent litigation.

21See Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346, 352 (1983).

Her, it can't be clearly imminent and threatened, as it would be bad faith for the BOS to demand dispute resolution and good faith negotiations, with the clear and imminent intent to litigate before ever going through the conciliation process. That would be bad faith under the agreement -- so the BOS should cough up the contents of the discussions or risk the argument that they never intended to negotiate a resolution in good faith.


Al said...

I wonder who was taking the minutes?
Jackie was sitting in the BOS meeting room while the executive session was taking place in the office.
If only we knew a lawyer who would file an injunction!

AMB said...

Too bogged down with other work at the moment. It was all I could do to just research this issue. Maybe someone wants to report it to the new Open Meeting Law Tzar at Martha Coakley's office. They are new and probably looking for some publicity for the new department. This would probably be sexy to them.