The City Council held a five-minute meeting Friday to go into closed-door session for a report and discussion about its failed appeal in a wrongful-termination suit.

There were several residents on hand unhappy they didn’t get to speak — although their voices were heard unofficially — and councillor Craig Kelley laid out his opposition to going into the closed-door session without public comment in a dense, four-page citation of city and state law and a spoken summation.

“I don’t see anything in our rule to say we don’t have public comment,” Kelley said. “I think it’s good public policy and we don’t have anything to lose.”

But his dissent was short, as a motion from councillor and state Rep. Tim Toomey had already been made to go into the closed-door session. When the vote was taken, it was 5-2-2, with Henrietta Davis and Ken Reeves absent; Mayor David Maher and Leland Cheung, Marjorie Decker, Denise Simmons and Toomey in favor; and Kelley and Sam Seidel opposed.

Seidel’s vote came as something of a surprise, and he had to repeat his murmured vote twice before it could be heard clearly.

The session has to do with Malvina Monteiro vs. City of Cambridge, a wrongful-termination lawsuit the city appealed but lost Monday. The cost to the city, and its taxpayers, are estimated at more than $10 million. City Manager Robert W. Healy once vowed the city wouldn’t pay “a dime,” but the rejection by the appeals court makes its unclear what’s next to avoid settling with the plaintiff, a Cape Verdean who was once executive secretary for the city’s Police Review & Advisory Board.

The meeting lasted from 9:14 to 9:19 a.m., ending as the councillors filed out to go to another room and as residents — mainly among the most common visitors and public speakers at public meetings, such as North Cambridge’s Michael Brandon, East Cambridge’s Heather Hoffman and Mark Jaquith and recent council candidate Silvia Glick — expressed their dismay. Candidate Minka vanBeuzekom was also present.

“For the record, mayor, this violates the open-meeting law,” Brandon called out. He’d earlier tried a citizen’s “charter right” veto, which Maher smiled at.

Responding to Maher’s rote announcement there would be no votes taken during the closed-door session, Glick called out, “Why would you take any votes? Then they’d be on the record.”

There were hisses from the audience of roughly a dozen people, and someone called out, “You can’t hide forever.”

All councillors are up for reelection in November.

Kelley’s letter to his fellow councillors and City Clerk Margaret Drury and argument in favor of public comment being heard are reprinted here:

Margaret and David:

The way I read the Plan E City Charter, excerpted below, citizens of Cambridge must have a reasonable opportunity to comment at tomorrow’s meeting in regard to any matter considered at it, which in this case is the vote to go into Executive Session.

Also, as I read our Rule 23 C about public comment, the first sentence clearly gives citizens and City employees a reasonable chance to comment at any meeting of the City Council.  I’ve attached the relevant language with emphasis on the first sentence.  I admit that there are some specific terms about signup and so forth that are not in keeping with the timing of tomorrow’s meeting, but, giventhe context of our Charter and the overall language on public comment, it would be quite a stretch to read those specifics as disallowing public comment in a special meeting such as the one called for tomorrow.

In keeping with the above requirements that citizens and City employees be given a reasonable chance to comment at any City Council meeting, I note that I could find no rule specifically prohibiting or regulating public comment at special meetings.

I have also attached some information from the Attorney General concerning Executive Session.  I worry that we’ll go into Executive Session immediately, while much public discussion could be had about matters already completely available to the public, such as what this most recent decision decided, how much money the City is likely on the hook for at this point, the status of the two follow-up related cases and so forth.

Finally, I have attached a FAQ about the Open Meeting Law that seems to clearly allow us, in public meeting, to discuss issues relevant to the Monteiro case that are not suitable for Executive Session, such as the issues I raised above.

On a related note, I would think it is a terribly foolish and dangerous idea to not allow public comment, to not have this meeting televised and to go prematurely into Executive Session even if there weren’t clear legal guidance on everything but having the meeting televised.  We have followed poor advice down this multi-million dollar rathole long enough and it is far beyond time that we started thinking for ourselves. Important issues of public trust are at stake and holding largely private discussions on such a public matter would erode such trust.

In short, at tomorrow’s meeting we should allow traditional public comment, we should televise the meeting, we should engage in public discussion about elements of the case that would not be prejudicial to the City’s position and then we should clearly delineate why we want to go into Executive Session prior to voting on the matter.

I hope that we can, at the start of tomorrow’s meeting, immediately allow for public comment in the same fashion as we do at all other City Council meetings and that, following public comment, we can engage in a public discussion of those items that are not prejudicial to the City’s position, such as a summary of the case thus far, the amount the City owes, under the decision, to the plaintiff, how much a failed appeal costs in interest, how much we have paid in legal fees and so forth.  I also hope that, despite the late notice, the meeting can be televised, though I can’t argue there is a legal requirement for that to happen.

Should you have any questions about this communication, please feel free to call me on my cell at 978-302-6642 or to try me at home at 617-354-8353.
Many thanks.

Craig

FROM THE PLAN E CITY CHARTER (MGL c. 43, secs. 93-116):

Section 98. The city council shall fix suitable times for its regular meetings. The mayor, or the vice-chairman of the city council, or any four members thereof, or any three members thereof in the case of a city council composed of seven members, may at any time call a special meeting by causing written notices, stating the time of holding such meeting and signed by the person or persons calling the same, to be delivered in hand to each member of the city council, or left at his usual dwelling place, at least twelve hours [at least 48 hours per City Council Rule 18 and OML notice requirements] before the time of such meeting. Meetings of the city council may also be held at any time when all the members of the city council are present and consent thereto. Except in the cases of executive sessions authorized by section twenty-three A of chapter thirty-nine [repealed and replaced by sec. 21 of ch. 30A (see below)], all meetings of the city council shall be open to the press and to the public, and the rules of the city council shall provide that citizens and employees of the city shall have a reasonable opportunity to be heard at any such meeting in regard to any matter considered thereat.

FROM THE RULES OF THE CITY COUNCIL, AS AMENDED:

RULE 23 C. Public Comment.

1. Regular business meetings

a. Under the provisions of Chapter 43, Section 98 of the General Laws, Tercentenary Edition, citizens and employees of the city shall have reasonable opportunity to be heard at any meeting of the City Council in regard to any matter considered thereat. Opportunities for citizens and employees to be heard at all regular meetings, except for working/roundtable meetings, shall be provided directly after the reading of the record, if requested by the City Council (submission of the record of the previous meeting). Members of the public may comment upon items in the following categories of business: Motions for reconsideration, City Manager’s consent agenda, Unfinished business from preceding meetings, Applications and petitions requiring approval or referral by the City Council, Consent resolutions, Consent resolutions and orders relating to policy analysis or development, Committee reports and Communications and reports from other city officers [this restriction violates the “any matter” charter provision just cited]. Each speaker shall limit his or her comments to no more than three minutes.

b. Procedure: An individual may sign up to speak before the City Council via telephone to the City Council office on Mondays from 9:00 a.m. to 3:00 p.m., or in person from 5:00 p.m. to 6:00 p.m. via a sign up sheet available in the Sullivan Chamber. The individual must indicate on the sign up sheet which item(s) he or she is planning to address.

2. Regular roundtable/working meetings.

Public comment shall not take place at working/roundtable meetings of the City Council, where no matter being discussed may be finally considered, in that no votes may be taken. Written comments will be accepted and made part of the record of the meeting. The opportunity for the public to make oral comments on items discussed at working/roundtable meetings shall be at the regular meeting at which the item may be considered for action by the City council.

FROM THE ATTORNEY GENERAL’S OPEN MEETING LAW GUIDE:

When can a public body meet in executive session?

While all meetings of public bodies must be open to the public, certain topics may be discussed in executive, or closed, session. Before going into an executive session, the chair of the public body must:

• ·                       First convene in open session.
• ·                       State the reason for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called.
• ·                       State whether the public body will reconvene at the end of the executive session.
• ·                       Take a roll call vote of the body to enter executive session.

While in executive session, the public body must keep accurate records and must take a roll call vote of all votes taken and may only discuss matters for which the executive session was called.

The Ten Purposes for Executive Session

The law defines ten specific Purposes for which an executive session may be held, and emphasizes that these are the only purposes for which a public body may enter executive session. . . .

3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares; . . .

Litigation Strategy: 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. Discussions relating to potential litigation are not covered by this exemption unless that litigation is clearly and imminently threatened or otherwise demonstrably likely. That a person is represented by counsel and supports a position adverse to the public body’s does not by itself mean that litigation is imminently threatened or likely. Nor does the fact that a newspaper reports a party has threatened to sue necessarily mean imminent litigation.

Note: A public body’s discussions with its counsel do not automatically fall under this or any other Purpose for holding an executive session.

What public participation in meetings must be allowed?

Under the Open Meeting Law, the public is permitted to attend meetings of public bodies but is excluded from an executive session that is called for a valid purpose listed in the law. Any member of the public also has a right to make an audio or video recording of an open session of a public meeting. A member of the public who wishes to record a meeting must first notify the chair and must comply with reasonable requirements regarding audio or video equipment established by the chair so as not to interfere with the meeting. The chair is required to inform other attendees of such recording at the beginning of the meeting.

While the public is permitted to attend an open meeting, an individual may not address the public body without permission of the chair. An individual is not permitted to disrupt a meeting of a public body, and at the request of the chair, all members of the public shall be silent. If after clear warning, a person continues to be disruptive, the chair may order the person to leave the meeting, and if the person does not leave, the chair may authorize a constable or other officer to remove the person.

FROM THE ONLINE MASSACHUSETTS OPEN MEETING LAW

(MGL c. 30A, secs. 18-25, effective 1 July 2010):

Section 21.  [EXECUTIVE SESSIONS]

(a) A public body may meet in executive session only for the following purposes: . . .

3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares; . . .

(b) A public body may meet in closed session for 1 or more of the purposes enumerated in subsection (a) provided that:

1. the body has first convened in an open session pursuant to section 21 [sic; “section 20” apparently intended]
2. a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;
3. before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;
4. the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and
5. accurate records of the executive session shall be maintained pursuant to section 23.

FROM THE AG’s ONLINE OML FAQs:

May a public body consider a topic at a meeting that was not listed in the meeting notice?

Yes, if it is a topic that the chair did not reasonably anticipate 48 hours before the meeting.  If a meeting topic is proposed after the meeting notice is posted, the public body is encouraged to update its posting to provide the public with as much notice as possible of what subjects will be discussed during a meeting.