There’s no justification for city councillors to go behind closed doors to hear about six discrimination lawsuits facing the city, and doing so might even be illegal, councillor Craig Kelley argued Monday.
“In no way, the way I look at the [legal] exemptions for executive sessions, do any of these questions fall into either discussion of a negotiation tactic for a lawsuit or personnel matters,” he told follow councillors during a brief discussion at a roughly hourlong meeting.
After spending likely more than $15 million through last year putting to rest six discrimination suits – including the Malvina Monteiro case that was mentioned in a second council item Monday – Kelley asked in June if there were other discrimination lawsuits councillors should know about. City lawyers said there were another six.
The next month, on July 30, the nine councillors asked unanimously that City Manager Robert W. Healy “report back to the City Council in executive session the nature of the six lawsuits, their status and any others that might have been filed.”
More than 200 days later, Healy wrote to say he agreed there should be a closed-door session to talk about the lawsuits, but Kelley now believes the request was worded wrong.
“We blew it” in asking for a private briefing, Kelley said after the Monday meeting.
Because there is nothing meeting the legal standard to have a closed-door session, Kelley said, “I would argue that it’s illegal for us to go into one.”
In a letter dated Wednesday and included in the council packet, Kelley proposes having information about the six lawsuits made public and lists 10 questions about them, including what departments incurred the lawsuits, how far along the cases are in court and who is representing the city there.
“We’re not talking names here, but what kind of amounts are we talking about? What are the specific claims? Those are all things that have no business being discussed in executive session. I’d like to find out if anyone disagrees with that,” Kelley said to the council. “I’d be happy to discuss open meeting and executive session law in greater detail now.”
Only Tim Toomey spoke up at that time – Minka vanBeuzekom, who spent some of the meeting wrestling with a broken microphone, missed her chance – and fell firmly on the side of discussing the matter away from the public. “My understanding is that any legal matter pending before the court system cannot be discussed in public,” he said. “When the case is settled, executive-session minutes can be released … that’s what I would move to do.”
Mayor Henrietta Davis offered the services of City Solicitor Nancy Glowa to determine which view was right, but Kelley, a lawyer, wasn’t interested, saying he was just reading among the 10 allowed purposes of an executive session posted by the state:
Discussions concerning strategy with respect to ongoing litigation obviously fit within this purpose, but only if an open meeting may have a detrimental effect on the litigating position of the public body.
“It’s hard to imagine that the facts of the case are going to have a detrimental impact,” Kelley said. “We don’t even have to say anything … the public deserves to know what these cases are about, we deserve to know what these cases are about. We don’t have to discuss anything, but we ought to be told the facts,” he said.
The return of Monteiro
The Monteiro case was much discussed in November 2011, as it lingered into a municipal election cycle. Some voters were frustrated by the matter’s continued secrecy; even after an $8.3 million payment had been made to Monteiro and her lawyer in September and the case was over save for some final paperwork, the city insisted on silence about details of its legal proceedings and the council’s closed-door meetings on the topic. When minutes of those meetings were released after the election, they were heavily redacted.
During the same election cycle, Toomey said, “I think the city is very transparent in everything we do. And we have a very active citizenry. So I don’t think there are any secrets out there that people don’t know.” But he also was among the councillors, along with Davis, who insisted there was material in the case that showed Cambridge in a much more sympathetic light and worthy of winning in court – despite the fact the Monteiro case was litigated for more than a dozen years by several lawyers from one of Boston’s top firms, and lost on a finding of retaliation not just in a 2008 trial by jury but in judicial reviews in 2009 and 2011.
The council’s other item concerning Monteiro asked that a meeting be held “to discuss the Monteiro case and any lessons to be learned from it prior to the current city manager’s leaving office” by the council’s Civic Unity Committee, which is led by vice mayor Denise Simmons.
Toomey voted against it.