Board of Zoning Appeal chairman Constantine Alexander

Board of Zoning Appeal chairman Constantine Alexander rises to approach a citizen filming a Thursday meeting.

The chairman of the city’s Board of Zoning Appeal has acknowledged a mistake in trying to block filming of the board’s Thursday meeting, when he tried to removed a citizen’s camera and threatened police involvement, citing the support of the city’s Law Department.

“I had a conversation with a colleague in which I mistakenly formed the impression that a person was required to identify him or herself prior to recording our meeting. My statement at the Nov. 5 meeting was as a result of that conversation. I now know that I misunderstood that conversation and that my statement on Nov. 5 was incorrect. I did not intend to mislead the public or cause any harm,” chairman Constantine Alexander said Wednesday.

The attempted ouster had been a surprise because it followed a conversation at the previous meeting, Oct. 22, in which the same citizen was allowed to record without identifying himself. Alexander announced then that he didn’t see a right to deny it, and even had copies of the state’s Open Meeting Law handy to consult.

“Any person may make a video or audio recording of a session of a meeting” and transmit it, so long as it can be done without interfering in the meeting, Alexander noted. “I don’t find that the one camera that’s there will in any way disrupt the meeting.”

“It would be nice if he would identify himself,” he said, answering a question from another attendee about the filmer’s identity, “I don’t think it’s relevant.”

Another member of the board even joked about moving the camera to his “good side.”

Change in approach

But at the Thursday meeting, when the citizen appeared again with the camera, Alexander had changed approach. “Sir, are you recording this?” he asked. “What’s your name, please?”

“I’m not going to tell you my name,” the filmer said.

“You have to give us your name,” Alexander said.

“No I don’t.”

“We’ve been advised by the city’s legal department that you do. So if you’re not going to give us your name, we’re not going to allow you to record. It’s very simple. Take your recording device and remove it. Do you want me to call the police? If you can’t give us your name, I don’t understand why you have a right to record our meetings,” Alexander said, before getting up and moving the equipment.

It was a temporary measure, as the citizen moved the camera back into the room and continued to record.

Open Meeting Law issues

The conflict came just as the board was taking up an open meeting law complaint that it was releasing minutes of closed-door meetings too slowly.

It also came only a couple of months after Attorney General Maura Healey’s Office held a free educational forum on the Open Meeting Law and its requirements in Cambridge – Sept. 17, with city solicitor Nancy Glowa and others from city departments present.

Glowa believed the forum was advertised among city staff by the City Manager’s Office, and said there is periodic training on Open Meeting Law for boards and commissions.

“I have never provided advice to the BZA, or to any other body governed by the Open Meeting Law, that a person who wishes to record by audio or video means a public meeting being held by a public body that is governed by the OML may do so only if he or she identifies him or herself. That would be an incorrect statement of the law,” Glowa said Wednesday via email.

Alexander acknowledged that “the city solicitor did not actually provide such advice to the board” that led to his actions Thursday, and said he intended to correct his misstatement on the record at the next meeting of the board “and to assure those in attendance that it will not be repeated.”

Clashes over recording

Xavier Dietrich

Dietrich

This wasn’t the first Open Meeting Law dispute involving the filmer, Xavier Dietrich. He and partner Kim Courtney came up against strong opposition last year from a potential competitor and seemingly from the License Commission when trying to open a wine bar and charcuterie in Mid-Cambridge. The two began attending and recording every commission meeting, and have also attended many City Council meetings and those of other public bodies in Cambridge. The videos are posted online.

There were several clashes over audio and video recordings made at the License Commission, with commissioners and staff stumbling over various aspects of the law, including repeating an often-made error that the chair of a meeting must grant permission for a recording to be made.

At an Aug. 10 meeting of the City Council, Dietrich and Courtney rose to speak separately on the city’s approach to regulation, including of car services such as Uber and Lyft, both saying city actions were leading to a perception of corruption. When Dietrich also referred to commission inaction on liquor law enforcement, specifically at a business whose owner asked the commission to block their restaurant, many councillors filed out for a recess and the public comment microphone was turned off and physically moved away from Dietrich by a council staffer. (He turned to the audience to finish reading his statement.)

The incident has resulted in an Open Meeting Law complaint to the state filed by Courtney and Dietrich, in which they say council minutes don’t accurately reflect their comments or council or staff reactions, including whether a vote was taken to recess. The couple said they had filed a complaint about the Board of Zoning Appeal incident as well, but otherwise declined to comment Wednesday.

Alexander’s complete statement, sent via Glowa:

I mistakenly stated at the Board of Zoning Appeals meeting on Thursday, Nov. 5, that the board had been advised by the city’s legal department that the board could require a person to identify him or herself prior to recording a meeting. The city solicitor did not actually provide such advice to the board. I informed the public at an earlier meeting of the board, on Oct. 22, that a person wishing to record our meeting was not required to identify him or herself. After that meeting, I had a conversation with a colleague in which I mistakenly formed the impression that a person was required to identify him or herself prior to recording our meeting. My statement at the Nov. 5 meeting was as a result of that conversation. I now know that I misunderstood that conversation and that my statement on Nov. 5 was incorrect. I did not intend to mislead the public or cause any harm. Since Mr. Dietrich continued to record the meeting after I made my statement at the Nov. 5 meeting, I assume that there was no harm in my having done so. I intend to correct my misstatement on the record at the next meeting of the board and to assure those in attendance that it will not be repeated.