Just Because Its Legal, Doesn't Make it Right

"The Supreme Court has held that "the Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy." Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 283, 79 L. Ed. 2d 299, 104 S. Ct. 1058 (1984).

As the Court noted in Minnesota State Board:

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices. . . . Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard.

Id. at 284-85. After examining both policy and precedent, the Court found that "nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Id. at 285; see also Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 60 L. Ed. 372, 36 S. Ct. 141 (1915) (denying similar claim made under Due Process Clause); cf. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 717-18 (4th Cir.) (upholding state law barring lobbyists from making campaign contributions against petition-for-redress claim), cert. denied, 2000 U.S. LEXIS 1013 (U.S. Feb. 22, 2000) (No. 98-1887).

Under these cases, plaintiff has no constitutional right to a hearing before, a meeting with, or even a response from the Board of Selectmen. While some commentators have argued for a broader interpretation of the right to petition, we are immutably bound by applicable Supreme Court precedent. See State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 284, 139 L. Ed. 2d 199 (1997). Should plaintiff wish to reverse these precedents, he must do so in the appropriate forum."

So, it seems that there is no Constitutional violation here...BUT, there is absolutely nothing that forbids, or even recommends that a public body squelch public participation and debate. Allin Frawley is definitely right that just because it is legal, doesn't make it right. Indeed, it is interpretations of law like the one above, from our Federal Circuit Court, that make me question the common sense and wisdom of my profession (objection...fact not in evidence). I truly would not have believed that this was the state of the law, had I not researched it.

Thank you Marsha, for finally being forced to see the light, rather than the law. By the way Lincoln...nice cross examination, and way to control the witness.

Marsha, Marsha, Marsha...

Saw the new rules Marsha drafted. Disappointed from a resident standpoint...love it from the lawyer who sues the Town perspective. Keep the detail Marsha. It only makes it easier for the BoS to make fatal errors.

In any event, being the member who RE-instituted the category "other," I have a couple comments on these proposed rules. I give Jane Lopes the credit for me putting "other" back on the agenda, based on a comment she made in the Nemasket Forum a while back, where she described how Vic Sylvia and others would come to the mike and have long "debates" on Town issues before the Board of Selectmen. Her comments resonated with me and I really respected the tradition that she described of Middleborough citizens confronting their government in the old New England way.

Since I have come to this Town, I have always heard that "we have always done it this way." This can be frustrating at times, because sometimes the phrase is used to perpetuate error. But where public comment and input is involved, it is quite another story. The tradition of free speech and debate before the Boards of this Town should be immutable and sacrosanct. Our Board should be the primary and jealous protectors of that right.

Marsha...I cannot count the number of times that you have backed silly, outdated policies and procedures with the mantra that "we have always done it this way." In fact, wasn't it you that argued that the Board has always conducted itself without written rules, so why change it now. You fought to maintain the tradition of not adopting rules.

Now, Marsha, you have apparently decided that you are willing to give up the tradition of acting without written rules, and you are also throwing out the longstanding tradition of citizens, and the Board raising discussion. Nobody asked you to change the traditions of the Board, just to write them down on a piece of paper so that newcomers like me know what those traditions are.

Your new rules -- which do not even have a provision that allows them to be amended by this or any later Board -- give an iron fisted grip to the Chairman, who is simply an officiate of the meeting and no more powerful than any other member, and puts a jackboot right on the throats of those people who have the greatest inherent right to speak out at a meeting -- the citizens and those people who are about to decide if they want you to remain a Selectman.

Marsh...get a grip and reconsider who and what you truly are when you serve. The people you are squelching are the same people who you need to let know you are listening. Hopefully, you will redraft the silly set of rules that you are proposing -- I really don't need the extra business.

THE RULES I SUBMITTED TO THE BOARD
RULES OF PROCEDURE FOR THE MIDDLEBOROUGH BOARD OF SELECTMEN:

SECTION I : PURPOSE:
These Rules of Procedure describe the duties and methods of operation of the
Middleborough Board of Selectmen.

SECTION II : ORGANIZATION:

A) RESPONSIBILITIES OF MEMBERS:

1. All members shall make every effort to attend each scheduled meeting.
2. Members of the Board have authority only when acting as a Board legally
in session. The Board shall not be bound by any action or statement of
any individual Board member, except when such statement or action is
pursuant to instructions from the Board.

B) OFFICERS:

1. ELECTION - A chairperson and Vice-Chairperson shall be elected at the first
regularly scheduled meeting following the swearing in of members elected at
the annual Town Meeting. Election shall be by a majority vote of those
present.

2. DUTIES - The Chairperson shall preside at all meetings of the Board, and
perform all duties required by law. In the absence of the Chairperson, the Vice-Chairperson shall preside and assume all duties and responsibilities of the Chair.

C) COMMITTEES: The Board, by vote, may delegate members of the Board to
investigate Town matters, to serve on committees, and to perform other duties.

SECTION III : OPERATION:

A) TYPES OF MEETINGS:

1. ORGANIZATIONAL MEETINGS - The Board may adopt the previous
Board's policies and procedures, subject to amendment as provided in these
Rules of Procedure. The Board shall establish a schedule for meetings for
the upcoming year.

2. REGULAR MEETINGS - A more formalized meeting of the Board generally
conducted in accordance with the order of the "Agenda" contained herein.

3. WORKSHOP MEETINGS - A less formalized meeting of the Board, generally
conducted for the purpose of providing Board members with a more detailed
understanding of a limited number of issues or to permit discussion of
issues in greater depth.

4. NON-PUBLIC MEETINGS - A closed meeting of the Board held for appropriate purposes in accordance with the Massachusetts Open Meeting Law.

B) SCHEDULE OF MEETINGS: The Board shall meet every Monday evening in a
regular meeting. Each meeting shall be posted in accordance with Massachusetts law. The
weeks in which the Board is not scheduled to meet shall be reserved for workshop
sessions as called by the Chairperson or Town Manager. The Board may alter this schedule of meetings by a majority vote of its members.

C) REPORTS OF COMMITTEES: Written reports from committees received by the
Board shall be filed for review by the Selectmen.

D) REVIEW OF AUDIT REPORTS: The Board shall review the annual financial report
submitted by the auditor as soon as the report is made available and take any
action related thereto.

SECTION IV : RULES OF ORDER:

A) QUORUM - A quorum shall consist of three (3) members of the Board.

B) AGENDA - Shall be published with meeting notice, and included in the minutes. A
suggested agenda is provided below. It may be changed by the Chair, or by vote of
the Board.
1.
2.
3.
4.
5. ….etc

Adjournment.

a) A motion for adjournment will usually not be in order until after the
completion of the order of business, unless a motion has been made
at the start of the meeting to adjourn at a specified time.

Persons, including Selectmen, wishing to place an item on the agenda must notify
The Board of Selectmen’s Secretary before the agenda setting deadline, which is
12:00 Noon on the Wednesday preceding the meeting. If the person is going to
make a presentation, s/he must provide a copy of all presentation material and
documentation to be included in each Selectman's packet which shall be available
no later than 4:00 PM on the Friday preceding the meeting.

Only bona fide emergencies may be placed on the agenda for discussion at the
meeting after the agenda setting deadline has passed

C) ROLE OF THE CHAIRPERSON:

The Chairperson's duties are as follows:
1. To open the session at the time at which the Board is to meet by calling the
members to order.
2. To announce the business before the Board in the order in which it is to be
acted upon.
3. To recognize members or other speakers entitled to the floor.
4. To state and put to vote all the questions which are regularly called or
necessarily arise in the course of the proceedings, and to announce the
result of the vote.
5. To protect the Board from undue harassment or otherwise uncivil conduct,
6. To assist in expediting all business in every way compatible with the rights
of the members and public by:
a) Allowing remarks when non-debatable motions are pending.
b) Calling a recess to permit restoration of order or clarification of an
obscure point if s/he thinks it advisable.
c) Guiding the members when engaged in a debate to stay within the
rules of order.
d) Ensuring on all occasions the observance of order and decorum
among the members and the public.
e) Deciding all questions of order (subject to an appeal by any two (2)
members) unless s/he prefers to submit the question for the decision
of the Board.
f) Informing the Board on a point of order, or practice pertinent to
pending business.
7. To authenticate by his/her signature, when necessary, all acts, orders, and
proceedings as directed by vote of the Board.
8. The Chairperson may vote as a member of the Board, but is not otherwise obligated to do so.
9. Discussions which are not addressing the business before the Board, or
which are conducted in a disorderly or disrespectful manner, shall be ruled
out of order. The Chairperson shall take whatever action is necessary to
achieve and maintain order, including ordering the removal of any person
who continues disorderly conduct.

D) CONDUCT OF MEETINGS: Meetings shall be conducted in accordance with
generally accepted practices of order and decorum. In the event of a dispute
regarding procedural matters, Robert Rules of Order shall serve as a guideline
with a vote of the Board being the final deciding authority.

E) RECORDING OF VOTES: Votes shall be by verbal outcry. The
vote of each member present shall be recorded. No action shall be re-considered at
a subsequent meeting in the same calendar year except by majority vote of the
members present and voting.

F) REQUESTS FOR INFORMATION: Should it become apparent to the Chairperson or
an individual Board member, in the interim between meetings, that additional
information relative to a specific item may be needed for Board use at the next
regularly scheduled meeting, a request for this information may be submitted to
the Town Manager. Any information provided to any individual Selectman shall be provided to the rest of the Board and shall note the origin of the request.

SECTION V : EMPLOYEES:

A) DUTIES: The Selectmen’s Secretary, or his/her designee, shall be responsible
for recording the minutes of the Board's meetings, and an official copy of the
record is to be filed in the Selectmen's' Office and open to inspection by any
person at reasonable times. In addition to keeping the minutes of the meetings, and in addition to any requirements under Massachusetts law, it is the duty of said Secretary to, at a minimum, record the essentials of the
proceedings as follows:
1. The kind of meeting - regular, special, work session, or recessed.
2. Time and place of meeting.
3. The presence/absence of Board members.
4. Whether the minutes of the previous meeting were approved or amended.
5. A brief, written record of the general topics discussed.
6. All main motions and points of order and appeals, whether sustained or lost,
and all other motions that were not lost or withdrawn.
7. Record of any votes by the Board, including names of those Board members
opposed if not unanimous.
8. The hour of adjournment.

SECTION VIII: AMENDMENT PROCEDURE:
An amendment to these Rules of Procedure may be moved at a Board meeting, but
shall not be voted upon until the next regularly scheduled meeting, not less than
seven (7) days later. A copy of any amendment shall then be certified and submitted
to the Selectmen’s Secretary for inclusion in the Selectmen's' Records.

SECTION IX : EFFECTIVE DATE:
These Rules of Procedure shall take effect immediately following a majority vote of the Board of Selectmen at a regularly scheduled Selectmen's meeting.

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.

Practice of Law Without a License?

I am still researching the issue, but ask yourself the following question: If this is a basic contract claim not involving any real federal Indian gaming issues (which it is), then why do we need an attorney who is not admitted or domiciled in Massachusetts to handle the litigation? Handling an arbitration looks like the practice of law in Massachusetts requiring a license to do so. Why hire an out of state big firm lawyer to do this contract case -- which is governed by the laws of the Commonwealth -- to handle a domestic contract case? It seems to be something that the BOS has not considered. The BOS should think about this, and if an indian gaming law expert is needed for a run of the mill Massachusetts contract dispute, then hire him on a limited basis to give expert testimony.

EXCLUSIVE: A Novel Argument for Breach by The Tribe

I attribute this argument to the coffee shop guys as they were the catalyst.

Why did we not negotiate an explicit exclusive into this IGA? Good question, but the facts show that an exclusive was assumed by both parties as part of the facts. Why was it assumed? It was assumed because gambling was and is illegal in the Commonwealth. Based on that illegality, the only possible place for the casino to go would be a tribal casino on trust land in Middleborough.

The only place where trust land was possible and had been applied for was in Middleborough, so an exclusive was an assumed and built in part of the IGA. The Tribe was unable to go anywhere else to legally build a casino so Middleborough could justifiably rely on an assumption of exclusivity in Middleborough.

The only break in the exclusivity came when the Carcieri decision made it no longer possible for the Tribe to take the land into trust by way of the secretary--but the Tribe did not choose to cancel the contract at that point in time and committed to obtaining a Carcieri fix to proceed with the Middleborough casino. They even dodged the concept of any renegotiations as there already was the IGA in place. They continued to pay money to Middleborough. All of these facts helped to preserve the assumption of exclusivity, upon which Middleborough continued to justifiably rely.

Thus, I see the ability to argue that exclusivity was always a part of the agreement and that their going to Fall River was a breach of the IGA entitling us to the benefit of our bargain no matter where the Tribe builds. I think that this gives us a cause of action against Fall River and its mayor for tortious interference with known economic relations, and would allow us to sue Fall River for the benefit of our bargain (the 7M + infrastructure improvements). We may even have a claim against the Commonwealth for the same interference (if we can get past sovereign immunity).

All in all, I think an argument like this could get past a motion to dismiss if properly presented. I also note that any claim against Fall River first would be in Court--only the Tribe goes to arbitration.

Fall River Deal Stalls

Go to http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20100518/NEWS/5180312. This article makes it look like maybe the Tribe call the end of the IGA too soon. The BOS position should remain the same and there are no replays. In other words, the BOS should proceed to vote to withdraw support for the land into trust and to oppose any land into trust for the Tribe. Now that they have canceled the deal, let them stew. If they want to come back, let them go back to the table for the amounts that we originally negotiated -- which Glenn Marshall called "racist." Middleborough does not need the Tribe. The Tribe needs Middleborough.

Question for Comment.

Why can't a warrant article be placed on a Town Meeting warrant to declare the IGA terminated, based on the new facts, and to oppose any taking of the land into trust? That vote could then be sent to the BIA and our congressional delegates, and we could rezone the location as rural.

It seems only fair that with no deal, that the land should not be eligible as trust land with an open ended use. The Tribe has stated in no uncertain terms that they are not bringing the casino to Middleborough. If Middleborough sends the message that there will be a massive fight to take that land into trust, perhaps the leverage that the Tribe has oevr the state will dry up before the new gaming laws are passed. After all, the only reason the State gave into the Mashpee is the possibility of a casino on trust land. Remove that factor, and it may cause the state to rethink bumping the Mashpee to the front of the commercial casino line.

In any event, it is again time for the BOS to act, and to act strongly and definitively (Oh God we're in trouble). Take away the land into trust possibility, and the Tribe loses its luster to the State, and the Malaysians don't need the tribe in order to proceed.

My bet is that the BOS negotiates a short money deal with the Tribe, like they can keep most or the rest of the casino monies, in return for the BOS shutting up. Pretty weak, but most probable.