No document gave power to CRA official to craft Google deal, lawyer says
While advancing such controversial projects as the Google rooftop connector and Microsoft sign installation over nearly three years, a single official at the Cambridge Redevelopment Authority was operating by “custom” rather than following the law, according to Jeffrey Mullan, the Foley Hoag lawyer reviewing that time for the agency’s new board members.
The authority is a multimillion-dollar agency with power over the development of real estate in Cambridge’s high-tech hub, Kendall Square.
At first Mullan claimed at a Wednesday meeting that it was the authority’s own bylaws that gave sweeping powers to executive director Joseph F. Tulimieri. When asked to identify where in the bylaws that power lay, he later backed down and agreed there was no such passage.
“The bylaws are pretty clear, actually. [The power] does lie with the authority,” said Mullan, referring to the five-member board whose current members asked for the legal review after pressure from residents and the media. A final report is to be posted before the Sept. 19 meeting.
The board’s first meeting was only May 21. For two years and eight months before that, there were no active board members, as all had resigned or retired after their terms had expired or — in the case of state appointee Barry Zevin — weren’t contacted and told their responsibilities.
Mullan’s second version is correct: The authority’s bylaws say the agency’s powers are vested in the board members, while the executive director handles “administration of its business and affairs, subject to the direction of the authority.” Yet when asked how Tulimieri accomplished anything for nearly three years, Mullan said he had powers that were “pretty broad.”
“There’s no document that says” what those broad powers are, though, Mullan explained. “It’s been customary for him to act that way.”
There was little expression of dismay on the board even as members heard the effects of Tulimieri’s independent stewardship, including that the authority has had no official budget for three years — indeed, has no official budget now — and couldn’t submit its most recent audit “because the auditor was insisting that a member of the authority sign what is known as a representation letter. We did not have a member of the authority available to sign that,” Tulimieri said.
A $9,900 audit contract for Woburn-based Roselli, Clark & Associates approved Wednesday will “look at that and essentially say, yes, the audit was done properly,” he explained. A draft should be available at the authority’s October meeting.
But Tulimieri’s explanation of what happened with that old audit, given during a second break in the meeting, was more complicated:
The audit [problem] had nothing to do with whether there were members of the board. The individual auditor who conducted the audit has something called a representation letter, and that representation letter — under normal circumstances, meaning every other year he did an audit — was signed by the executive director of the Cambridge Redevelopment Authority. This particular year he wanted a second endorsement on the letter, i.e., a board member. I couldn’t produce the board member. There was a board member there, there were two board members in fact who were available to sign, or three available to sign, but in every instance the individual chose not to sign it. And the one that did sign the representation letter … the auditor chose not to use it.
Tulimieri said he didn’t know why board members refused to sign or why the board member’s signature that was finally procured wasn’t good enough for the auditor. In addition, the timeline is confusing: It was an audit of finances from 2010 that was to be submitted in the spring of 2011, yet there was a shortage of board members at the time and no board meetings had been held for about a year at that point.
He rejected the notion that the inability to get a valid signature was an indication he, his staff or Sandra Shapiro, the legal counsel at the time from Foley Hoag, should have alerted City Manager Robert W. Healy that board members were needed.
“The individual responsible for appointing the board, and the City Council — responsible for concurring in that — was well aware of what they had to do,” Tulimieri said.
Healy is responsible for some 350 ongoing appointments to dozens of city boards and commissions. Likely causing further confusion for Healy is the practice of letting board members serve indefinitely after their five-year terms expire, which in this case resulted in the eventual drifting away of all four city-appointed members and what Mullan referred to as the two-year, eight-month “quiet” period and now the “look-back” period.
“Fruit of a poisonous tree”
What prompted the discovery last spring that there was no active board was the council’s approval March 19 of a plan taking 40 percent of a rooftop garden from public use, instead using the space for a structure connecting Google offices in two buildings owned by developer Boston Properties. The plan was proposed by “Boston Properties, together with the Cambridge Redevelopment Authority” and passed 7-2.
Construction can start as soon as Sept. 1, according to board actions taken Wednesday.
Again, there has been little alarm from the council that it approved a plan overseen by Tulimieri alone.
“A lot of people have said the Google connector project … is sort of like the fruit of a poisonous tree. The beginning of the Google project happened during the ‘look-back’ period,” Mullan said. “The allegation and the theory is that the process has been deeply flawed and that in some respects the council was misled by a letter written by [Tulimieri, acting as the] Redevelopment Authority supporting the Google connector.”
“I don’t think that’s true. I don’t think that makes it illegal. I think the council was well aware of the status of the Redevelopment Authority at the time. I think the council was very knowledgeable about the actions it was taking,” Mullan said.
Councillor Minka vanBeuzekom was at the meeting and told him he was wrong.
The vote was “given us in the context of there’s urgency, and that’s one reason the council should vote for this to be a shorter process. In the context of that, the fact that the CRA wasn’t duly constituted did not come up,” vanBeuzekom said. “The only interaction the City Council had with the CRA was as a result of an order I put in asking the city manager to give us more information about the CRA. And that was after the Google vote … At no time was there any conversation that the CRA wasn’t able to enter into this agreement with Boston Properties on behalf of the city for something that was in the public realm.”
When asked his reason for saying the council was “well aware” of the authority having no active members, Mullan said he had just been making “a general comment about my sense of the council.”
He and the board members resisted answering specific or general questions about his findings, instead insisting that people wait to read the full report — their stance during the meeting as well as when approached privately during breaks.
When told Mullan’s response about the powers claimed by the executive director, Born scoffed.
“I don’t think from that lawyer you’re going to get a legal opinion based on custom,” she said.
Tulimieri, retired and departing
The board also approved a contract Wednesday to bring on Kathy Spiegelman — according to a LinkedIn account an independent planning consultant, instructor at the Harvard Graduate School of Design and former Cambridge assistant city manager for community development — as a consultant on “transition planning,” meaning Tulimieri’s exit as executive director after more than three decades.
Tulimieri actually retired Dec. 31, 2010, when by his own account he was earning an annual salary of $220,480. His retirement benefits are $144,280.56 annually as he goes on working part time, up to 960 hours a year, for the authority. A spreadsheet released last month showed him making $78,617 in wages at $113 per hour.