Citizen Jack

Thoughts for a Better City

I received the following letter in the mail today. It resolves and Open Meeting Law [OML] violation that I filed in March. Almost 5 months after the filing. When it is posted it can be read on line here, Attorney General 2011 Determinations.(see 2011-35)
Though it takes no action beyond what the City Council has already done, it does verify that an OML violation did occur.
It also did not clarify any further the notion of “intentionality” which was the crux of my complaint.

I admit that I was hoping for a training program to be required for Councilors.

Read and make up you own mind.

August 22, 2011

OML 2011-35

Peter J. McQuillan, Esq.
City Solicitor
41 Pleasant St.
Methuen, MA 01844

RE: Open Meeting Law Complaint

Dear Attorney McQuillan,

This office received a complaint filed by Jack Burke, dated March 28, 2011, alleging that the Methuen City Council (the “Council”) violated the Open Meeting Law, G.L. c. 30A, § 18- 25. The complaint alleges that Methuen City Council Chair John Cronin “sent around an e-mail to other city councilors asking them for their feedback” on whether they would support an item Councilor Cronin was considering adding to an upcoming Council meeting agenda. The complaint was first filed with the Council on January 18, 2011. We received the Council’s response to the original complaint on or about January 31, 2011.

We find that while the actions of Councilor Cronin violated the Open Meeting Law, the Council took appropriate measures to prevent a further violation and took remedial action to cure any effects of the violation. In reaching this determination we reviewed the January 18 and March 18, 2011 complaints; the Council’s January 31, 2011 response to the complaint; and the notice and minutes of the Council’s January 19, 2011 meeting. We also spoke with you by telephone on April 19, 2011. Finally, we reviewed a supplemental response from the Council, dated April 20, 2011.

FACTS
Over the past year, the City of Methuen has undertaken a charter review process through a Charter Commission. One member of the Charter Commission was Councilor Cronin. One topic debated by the Charter Commission was whether the City Council should consider a ballot question on abolishing term limits for municipal offices. The City Council would have to approve a ballot question before a municipal special election could be held. The Boston Globe reported on January 13, 2011, that Councilor Cronin would not bring the ballot question to the City Council for a vote “if he determine[d] he lack[ed] the council votes needed to schedule a special election.” John Laidler, Four Names Emerging as Methuen Mayoral Candidates, BOSTON GLOBE, January 13, 2011. On January 14, 2011, Councilor Cronin sent an email to all of his fellow city councilors with the subject line “TR-l 1-1 Resolution for the Submission of Term Limit Questions on the Ballot of a Special Municipal Election (Re. of CIr. Cronin).” The text of the email was as follow

The above requires a vote of the City Council to go to the state with a Home Rule Petition to have a Special Election. Please advise whether or not you support this concept via a phone call [phone number redacted] or email.

According to the Council’s January 31, 2011 response to the complaint, none of the councilors responded to the request by email, though three city councilors responded to the email by telephoning Councilor Cronin. h a letter to this Office dated April 20, 2011, in response to a specific request from our office, the Council affirmed that “the content of those telephone conversations was general in nature and referenced simply the agenda for the forthcoming regularly scheduled City Council meeting. No dialogue specifically referenced the subject matter of the complaint.”

The Council convened an open meeting on January 19, 2011. The meeting notice included the topic “TR- 11-6 Resolution for the Submission of Term Limit Questions on the ballot of a Special Municipal Election (Req of Chr Cronin).” The minutes of the meeting reflect that during the public participation portion of the meeting, the complainant, as well as another individual, addressed the Council regarding a possible Open Meeting Law violation by Councilor Cronin in soliciting Council members’ opinions regarding the term limits topic. Both residents requested that the Council remove the topic from the meeting agenda. When the Council reached the New Business portion of the meeting and began consideration of the term – limits topic, Councilor Cronin stated that he thought it was only fair that the public understand the Open Meeting Law allegations raised earlier in the meeting. Councilor Cronin explained that the topic was added to the agenda a week before the meeting, but he acknowledged that “the email I sent out, although I did not realize it at the time, was not appropriate according to the open meeting law.” Councilor Cronin went on to state for the record that, “[t]here was no intention of biding anything on my part because I talked to reporters before it went on the agenda and I told them what my plan was so there was no intention to hide anything from the public.” Councilor Cronin then explained his reasons for supporting the ballot question, but removed the agenda item from the Council’s consideration “because of the confusion I caused.” Council Cronin added that, “I want to make clear [that] there were no emails sent to me, I did not receive any emails, and I don’t believe the Council office received any responses.”

DISCUSSION
The Open Meeting Law was enacted “to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.” Ghiglione v. School Conmittee of Southbridge, 376 Mass. 70, 72 (1978). A “deliberation” is defined as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” G.L. c. 30A, § 18. The Open Meeting Law defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” Id. The law requires that meetings of a public body be properly noticed and open to members of the public, unless an executive session is convened. See G.L. c. 30A, § 20(a)—(b), 21.

Councilor Cronin’s January 14, 2011 email to a quorum of his fellow Council members, requesting that the members report whether or not they support a special election for a ballot question, was a deliberation in violation of the Open Meeting Law. The email was a “written communication” sent to a quorum of the Council on a matter of “public business within its jurisdiction.” G.L. c. 30A, § 18. Councilor Cronin’s solicitation could have resulted in the Council making policy decisions outside of a public meeting had Council members replied. The councilors showed commendable restraint in declining to respond to Councilor Cronin’s email.

The three councilors who spoke with Councilor Cronin over the telephone regarding the meeting agenda did not address the email’s specific request, according to the Council’s April 20, 2011 letter. The Council affirmed that “the content of those telephone conversations was general in nature and referenced simply the agenda for the forthcoming regularly scheduled City Council meeting. No dialogue specifically referenced the subject matter of the complaint.” More to the point, the phone conversations with Councilor Cronin did not involve a quorum of the Council. There are nine members of the Council, and five councilors constitute a quorum. As the phone conversations, even if serial in nature, were between or among at most four members of the Council—less than a quorum—there is no violation of the Open Meeting Law resulting from these phone calls.

The Open Meeting Law complaint that followed this violation was filed with the Council on January 18, 2011. At the January 19, 2011 Council meeting, Councilor Cronin acknowledged his error and took responsibility for the violation. Councilor Cronin withdrew the term limits topic from the meeting agenda as it had been tainted by the email deliberation, even though it had been added to the meeting notice more than 48 hours before the meeting, as required by the Open Meeting Law. See G.L. c. 30A, § 20(b). Additionally, you wrote a memo in your capacity as City Solicitor, dated January 24, 2011, to the members of the City Council describing the nature of the violation and requesting all members to review the Guide to the Open Meeting Law provided by the Solicitor’s office. These steps, combined with the release of the email in question, were the proper remedial actions given the nature of the violation.

We note that, despite the complainant’s contention, we do not believe Councilor Cronin acted to intentionally violate the Open Meeting Law. Councilor Cronin even told a reporter that he was going to poll the members of the Council before adding the topic to the agenda. Once he was made aware of the violation, he acted appropriately to remedy the situation.

CONCLUSION
Councilor Cronin’s January 14, 2011 email was an inappropriate solicitation that resulted in deliberation by the Council in violation of the Open Meeting Law. However, we find that the Council’s actions in response to the complaint filed on January 18, 2011 were appropriate. The Council 1) acknowledged the potential for a violation; 2) publicly released the email sent by Councilor Cronin; 3) removed the tainted topic from the agenda; and 4) requested that all Council members review the Open Meeting Law Guidebook. We have confidence that the Council will avoid such email communications in the future.

We now consider this matter closed.
If you have any questions regarding this determination, please do not hesitate to contact me at the number below.

Sincerely,

Jonathan Sclarsic
Assistant Attorney General
Division of Open Government
Ph: 617-963-2045

cc: Jack Burke