What city official ‘knows’ turns out to be wrong, and lawyers fell for it. Now what?
What do you do when you hear a city official say something that’s obviously untrue?
In this case it was Kathy Born, chairwoman of the Cambridge Redevelopment Authority, saying Sept. 19 in reference to a Boston Properties project that “I served on the council with seven of the councillors who voted for this, and I know that they knew that there wasn’t a functioning CRA. The vacancies on the board were advertised on the city website in May of 2011 and all of the councillors were aware and in fact it was one of the councillors who brought it to my attention.”
The context here is that the executive director of the authority presented a project to the City Council in February when he had no legal right to do so. He was acting on his own with no active board members telling him what to do or approving his actions, a situation that went on for two years and eight months without him doing anything about it.
Born is saying this is okay because the councillors knew the facts when, in March, they voted 7-2 to approve the project.
And that might convince someone who wasn’t around at the time attending council meetings and listening to hours of councillor discussion and public comment. To anyone who was, it rings utterly false.
So what do you do? Fortunately, Erin Baldassari at The Cambridge Chronicle has done the hard work of contacting the councillors and asking them whether Born’s statement is true, so the doubters have some of the work done for them. The Chronicle accounting, under the polite headline “Cambridge Redevelopment Authority report does not match City Council’s account,” notes that Leland Cheung is out of the country and can’t be reached; that of the remaining eight councillors, six voted yes on the project; and that of those, a single councillor — Ken Reeves — said he knew there was no board.
This is, in itself, something of a surprise. If you sat through those meetings you will remember that in February there were questions about the authority board, but that it was generally believed there were three members. (This was the story through March, when executive director Joseph Tulimieri told Cambridge Chronicle reporter Andy Metzger that he had three board members and that it wasn’t “interfering with any of the decisions that have to be made. [It’s] just the simple matter of collecting a quorum.” At that point, in direct defiance of authority bylaws, there hadn’t been a board meeting for two years — since March 17, 2010 — so apparently it wasn’t such a simple matter.)
Here was Reeves’ comment at the time, responding to the fact only Cambridge residents may serve on the board: “This is the most curious thing, because the one [member] I know, Alan Bell, he’s been in California for years, so I don’t see how he could continue on it.” If Reeves said at any time during the monthlong proposal process that he knew there wasn’t a functioning authority, it was too subtle to register with the public, media or other councillors.
And what of Craig Kelley, the councillor who voted against the Boston Properties project and says he knew there was no active board at the authority?
When contacted Sept. 19 immediately after the authority meeting at which Born made her false assertion, Kelley said that his “memory is that everyone in the world was repeatedly saying we didn’t have a functioning board.” But he also said that “to be sure, I’d have to look at the comments” and that it wasn’t certain that the council understood what powers the executive director had or didn’t have “because I don’t know that any of us looked at the charter … I don’t think any of us knew with a level of certainty.”
Whatever Reeves’ and Kelley’s memories, based on public discussion in February and March, the actual timeline of events and Baldassari’s reporting in the Chronicle, Born is just flat-out wrong.
And it was Born’s incorrect comment that provided the basis for the authority’s legal counsel saying in a breathtakingly incompetent and irresponsible official report that “According to city officials and contemporaneous correspondence to the council, at least some members of the City Council were aware of the fact that [the] authority has had vacancies in its membership.” (The correspondence was a citizen’s letter asking for an official answer about vacancies. This is little better than Born’s belief that councillors remembered an ad for board members that was posted on the city website 10 months before the Boston Properties proposal was introduced.)
An actual fact
Here’s how it plays out: Born says she “knew,” but she didn’t. The authority’s legal counsel from Foley Hoag relies on Born, not even bothering to confirm it after councillor Minka vanBeuzekom told two authors of the report to their face that, as Baldassari puts in, “she felt personally misled at the time of the council’s vote because it wasn’t clear that the CRA board hadn’t weighed in on the plans.” And the board accepts the report.
But here’s an actual fact, rather than the kind stated by Born: No one has shown that Tulimieri has the right to singlehandedly accept, craft and present to the council a project such as he did for Boston Properties. If he doesn’t have the right and if it were understood there were no active authority board members, the Boston Properties project wouldn’t have been presented to the council Feb. 27 or voted on March 19.
By Tulimieri’s own admission in April, the authority board members could have killed the Boston Properties project. “Can the authority say, ‘No, we don’t want it’? Sure. The authority could do that,” he said. “I’m not going to speculate as to whether they should do that.”
Even on Sept. 19, Foley Hoag’s Jeffrey Mullan said that “I believe that at any time, the authority was not forced to proceed with the conveyance of land that was proposed in [Tulimieri’s] letter to the council. Now that would have stopped the project, perhaps, but once you were appointed and sworn, you considered that in I think every one of your meetings and took a vow to proceed.”
The board members decided to ignore this and judge the Boston Properties proposal because the council had voted on it. Now Born seems to be retroactively justifying that decision by making untrue statements, and she and the rest of the board are okay with legal counsel that doesn’t care.
Never mind what you do when you hear a city official say something that’s obviously untrue. What do you do when an entire project is based on it?