ag: zoning board of appeals violated open meeting law during approval of 3200 washington st

8/16/2019 AG: Zoning Board of Appeals violated Open Meeting Law during approval of 3200 Washington St.

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THE

COMMONWEALTH OF MASSACHUSETTS

OFFICE OF

THE ATTORNEY

GENERAL

ONE ASHBURTON PLACE

BOSTON MASSACHUSETTS 02108

MAURA

HEALEY

ATTORNEY

GENERAL

TEL: (617)

727-220

www.mass.gov/ago

May

27,

2016

OML 2016 69

Edward

Coburn, Esq.

Assistant Commissioner

Inspectional Services

Legal

Division

1010 Massachusetts Avenue

4

th

Floor

Boston, MA 02108

RE: Open Meeting Law Complaint

Dear Attorney Cobum:

This

office received

a

complaint

from

Collique

Williams and Tara

Venkatraman,

dated

December

15,

2015, alleging that the Boston

Zoning Board of

Appeals (the

Board ) violated the

Open Meeting Law,

G.L.

c. 30A, §§ 18-25.

Specifically, the complaint alleges that the Board

discussed a topic during its September 15,

2015 meeting

that had not been listed on the

meeting

notice. The complaint was

originally file

with the Board on October

14,

2015, and

the

Board

responded by

letter

dated December

9,

2015.

1

We appreciate the patience and cooperation of the parties while we reviewed this matter.

Following

our review, we

fin

that

the

Board intentionally

violated the

Open

Meeting

Law

as

alleged.

In

reaching

this

determination,

we

reviewed

the original complaint, the Board's

response,

and the

request for review

file with

our office. Additionally, we spoke with you by

telephone on January 5, 2016 and with the complainants by telephone on January 13, 2016.

Finally,

we spoke with Boston

Assistant

Corporation Counsel

Allyson

Holmes on January 13,

March 30,

and April 6, 2016.

1

We remind the Board that, unless an extension of time has been requested, a public body must, within 14 business

days of receipt of an Open Meeting Law complaint, review the complaint, send a copy of the complaint to the

Attorney

General's Office, and

notify the Attorney

General's

Office

of

any

remedial action

taken. G.L.

C.30A,

§

23(b); 940 CMR 29.05(5),

(6).

O


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FACTS

We

find the facts

as follows.

The

notice posting location for Boston

public

bodies is

a

bulletin

board

on

the first floor

of Boston

City

Hall.

Boston has not adopted an

alternative notice

posting location, as it may choose

to

do pursuant 940 CMR

29.03(2)(b).

During a July 21, 2015

hearing on

a

development at

3198-3204 Washington

St.

and

11 Iffley

Road, the

Board

voted to

continue the

hearing until September

15,

2015.

The Board posted notice for its September 15, 2015 meeting directly to the City of

Boston

website.

The

date this

notice was

posted is not clear. The Board

did not

file the notice

with the City Clerk, and

no

notice was posted to the City Hall bulletin board. The online notice

for the meeting did not

include

a topic

regarding

requested

zoning

variances for 3198-3204

Washington

St. and 11 Iffley Road. The

Board

updated the online notice on September

14,

2015,

to include

discussion

of

those two

topics.

Immediately

prior

to the

September

15, 2015 Board meeting,

two

representatives of a

group

called Group Working

for 100%

Real Affordability in

Egleston (the

Group ), delivered a

letter

to each of the Board members and to the Board's

executive

director. The letter included a

cover

sheet

stating,

To

Chairperson

Christine

Araujo and the

Zoning

Board of Appeals

IMPORTANT, PLEASE

READ: Explanation

why a

vote on

3198-3204

Washington

St

and 11

Iffley Rd

today

would

violate the

Open Meeting Law. The letter included

the

following

relevant

portions:

We are writing to respectfully request that you postpone the vote

on

3198-3204

Washington Street and 11 Iffley

Road

to another date, which we

believe would

keep the

vote

in compliance with the

Open Meeting

Law

Based

on

information

from

conversations

with

the Division of Open Government in

the

Attorney General s Office,

we have determined that it would be

a

violation of the Open Meeting Law for

the Zoning

Board of Appeals to

vote

today on the projects.

The original agenda posted online from

Friday,

September

12,

2015 to Monday

September 14, 2015

did not have

[3198-3204

Washington Street and

11 Iffley

Road] on

the agenda....

[Open

Meeting LawJ requirements were not followed in posting public

notice about 3198-3204 Washington Streetand 11

Iffley

Road....notice of today s

meeting was not posted on the irst floor of

City

Hall where notices ofpublic meetings

are

posted.

Representatives of the Group

attended the September

15, 2015

hearing. During

public

comment at the hearing on 3198-3204 Washington

Street and 11

Iffley Road, a representative

from

the

Group

explained to

the Board

that

it

should not vote

on the variance

because the

meeting violated

the

Open Meeting Law. During

a

recess,

a

Group

representative

again provided

the

Board

Chair with

a copy of the

Group's

letter. Despite the letter and the warning during

public comment, the

Board decided to continue with the meeting and voted to approve variances

for projects

at

3198-3204 Washington Street and 11 Iffley Road.

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DISCUSSION

The Open Meeting Law requires that,

[ejxcept

in an emergency.. a

public

body shall

post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays,

Sundays and legal holidays.

G.L. c. 30A,

§ 20(b). The notice

must be

printed

in

a

legible,

easily understandable format and

shall

contain the date,

time

and place

of

such meeting

and a

listing of topics that the

chair

reasonably

anticipates

will be discussed at the meeting. Id. For

meetings

of a

local

public body,

unless

an

alternative posting method

has

been adopted, the

notice must be filed with the

municipal

clerk and

posted in

a manner conspicuously

visible

to the

public at all

hours

in or on the

municipal

building in which the clerk's

office

is located. G.L.

c.

30A,

§

20(c); 940 CMR 29.03(2). As

an

alternative notice posting method, a municipality

may choose to post notices to its website. 940

CMR 29.03(2)(b)a. However,

the City of Boston

has not

adopted

this alternative.

Here,

the

Board

posted

notice

of its

September 15, 2015 meeting on

the City's website.

However, the Board violated

the

Open Meeting

Law

by failing to file

a

notice for

its September

15, 2015 meeting with

the City

Clerk and

by

holding

a

meeting for which

the

legally

required

notice had not been published. See G.L. c. 30A,

§

20(b); OML 2014-153;

OML

2013-55; OML

2011-32.

The Board did so

despite having

received clear

warning immediately prior

to and

during the

meeting

that the meeting had not been

properly

noticed.

Because

the

Board

had been provided

with written

notice

that

the

September

15, 2015

meeting had not been

properly posted,

we find

that

this

violation

of the Open Meeting Law

was

intentional. An intentional

violation

is an act of omission by

a

public body or

a

member

thereof,

in

knowing violation of the Open Meeting

Law.

940 CMR 29.02. A violation is

intentional where the public

body

has acted with specific intent to violate the law [or]

acted

with

deliberate indifference

to

the law's

requirements. Id

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CONCLUSION

We find that Board discussed a topic during its September 15, 2015

meeting

that was not

included on the meeting notice.

We

find that this violation was intentional. We therefore refer

this

matter to

a hearing pursuant

to

940

CMR 29.07(3). We recommend

the following

orders be

imposed:

(i) A civil penalty of $1,000;

(ii) Mandatory attendance by all Board

members

at an Open Meeting Law training

conducted by the Division of Open Government; and

(iii)

An order

of immediate and

future

compliance with the Open Meeting Law, G.L.

c. 3OA

§§

18-25.

Please be advised

that this

letter does

not

resolve

any

other complaints that

may

be

pending

with

this office or

with

the Board.

We

invite the Board

to contact

our office at (617)

963-2540

to

discuss

the

hearing process.

Sincerely,

Kevin W. Manganaro

Assistant Attorney

General

Division of Open

Government

cc:

Law

Department, City of Boston

Collique Williams

Tara Venkatraman

This determination was issued pursuant to G.L. c. 30A,

§

23 c). A public body or any

member of

a

body aggrieved

by

a

final order of the Attorney General may obtain judicial

review through an action filed in Superior Court pursuant to G.L.

c.

30A, § 23 d). The

complaint must be filed

in

Superior Court within twenty-one days of receipt of

a

fin l

order.

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ag: zoning board of appeals violated open meeting law during approval of 3200 washington st

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