1,056,917 @ 2:21 pm
1,056,875@ 1:09 PM
Zoning Board of Appeals - Cheryl Rodriguez complaint
1,056,875@ 1:09 PM
Zoning Board of Appeals - Cheryl Rodriguez complaint
THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MAURA HEALEY ATTORNEY GENERAL
TEL: (617) 727-2200 www.mass.gov/ago
October 11, 2016
OML 2016-140
Mark Rumley City Solicitor City of Medford 85 George P. Hassett Drive Medford, MA 02155
RE: Open Meeting Law Complaint
Dear Attorney Rumley:
This office received a complaint from Cheryl Rodriguez on June 29, alleging that the Medford Zoning Board of Appeals (the Board) violated the Open Meeting Law, G.L. c. 3 OA, §§ 18-25.1 The complaint was originally filed with the Board on or about June 6, which was subsequently amended on June 13, and you responded, on behalf of the Board, by letter dated June 16. The complaint alleges that immediately following its May 31 meeting, the Board met in private to deliberate and approve a development project.
Following our review, we find that the Board violated the Open Meeting Law in the manner alleged.
We also find that the Board violated the law by failing to create and approve minutes in a timely manner. In reaching a determination, we reviewed the original complaint, the Board's response to the complaint, and the complaint filed with our office requesting further review. We also reviewed the notice and draft minutes from the Board's May 31 meeting. Finally, we reviewed an audio-recording of the Board's May 31 and June 14 meetings, which the complainant provided to our office.
We find the facts as follows. The Board is a five-member public body, thus three members constitute a quorum. The Board held a meeting on May 31, in part, to hold a hearing on an application for zoning variances for a development project at 61 Locust Street, which is known as the former site of a Shaw's supermarket. The meeting notice, timely posted to the City website on May 13, listed this topic as follows:
1 All dates in this letter refer to the year 2016.
FACTS
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61 Locust Street (Case #A-2016-18) Applicant and Owner, Equity One, Inc. is petitioning for a variance from Chapter 94 - City of Medford Zoning Ordinance to demolish 2 existing structures and construct 2 mixed-use buildings consisting of 490 residential dwelling unites (sic) and 7,000 sq. ft. of commercial space with insufficient front, rear and side yard setbacks; landscaped area; lot and useable area; off-street parking; distance between structures. This plan also exceeds the maximum allowed height and lot coverage. This plan is also subject to Site Plan Review and Linkage Fees.
During the hearing, various representatives for the applicant spoke about the proposed project and the Board heard from the public. At the close of the hearing, Board Chair Anthony Arena stated that the Board would take the matter under advisement and that the "thousand-page plus documentation.. .will be reviewed in great detail." Chair Arena then thanked everyone for coming. The audience and the Board began to rise from their seats to exit the meeting room. The Board stopped recording the meeting at this point. However, the Board returned to their seats a few minutes later to continue the meeting. This portion of the meeting lasted at least 30 minutes during which the Board discussed and approved the application.2
The Board's draft minutes from this meeting, created after this complaint was filed with our office, do not reference this discussion. According to the draft minutes, following the public comment period, the Board voted "to accept with Site Plan Review and the department head and Community Development Board recommendations." Although Chair Arena did not state that the Board would take a recess following the hearing. Chair Arena contends that he also did not state that the meeting was adjourned and that no one was asked to leave the meeting.
DISCUSSION
The Open Meeting Law was enacted "to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge. 376 Mass. 70, 72 (1978). The law requires that meetings of a public body be properly noticed and open to members of the public, unless an executive session is convened. See G.L. c. 3OA, §§ 20(a)-(b), 21. The law defines a "meeting" as, "a deliberation by a public body with respect to any matter within the body's jurisdiction." G.L. c. 30A, § 18. A "deliberation" is defined as "an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction." Id For the purposes of the Open Meeting Law, a "quorum" is a simple majority of the members of a public body. Id
The complaint alleges that the Board met privately to discuss and take action on the 61 Locust Street project immediately after the meeting adjourned and the public left the meeting
2 At one point, the complainant, who remained in the hallway just outside the room, observed the Board's secretary close the door to the meeting room.
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room. We agree with the complainant that Chair Arena's statements misled the public to reasonably assume that the meeting had concluded. Following Chair Arena's statements, both the audience and the Board members rose from their seats, giving the appearance that the meeting was over. The Board did not vote on (or even announce) whether to take a recess and did not indicate to the public that it would re-convene following this recess for the purpose of discussing the application. The Open Meeting Law defines deliberation broadly to include communication between or among a quorum of the Board on any matter within its jurisdiction. See G.L. c. 30A, § 18 (emphasis added). Accordingly, the Board's discussion following the hearing that led to the Board's decision to grant the permit must be done during a properly posted meeting and must be accurately reflected in the minutes. See OML 201654.3 Based on the circumstances, we find that this discussion was not open to the public and therefore find that the Board deliberated outside of an open meeting in violation of the Open Meeting Law. Because the Board did not specifically use the word, "adjourn," or ask anyone to leave the meeting, we decline to find that the Board's actions were intentional, but rather the result of a serious misunderstanding of the law's requirements.
Although it is not alleged in the complaint, we find that the Board also violated the Open Meeting Law by failing to timely create and approve meeting minutes. Public bodies have an obligation to "create and maintain accurate minutes of all meetings." G.L. c. 3 OA, § 22(a),
These meeting minutes must be reviewed and approved in a timely manner. G.L. c. 3 OA, § 22(c). Although the Open Meeting Law does not define "timely manner," we recommend that minutes of a meeting be approved at the next meeting, whenever possible. See OML 2014-15; OML 2012-91. For bodies that meet regularly, we have concluded that a delay of two to three months in approving minutes does not comply with the law. See OML 2016-62. Our office did not receive a draft until September 13, over three months after the meeting. Accordingly, we find that the Board violated the law by failing to timely create and approve accurate minutes from this meeting. Because the minutes remain in draft form, we find no violation for the substantive deficiencies; however, we strongly recommend that the Board include in its final, approved minutes a summary of the entire meeting, which would include the discussion following the hearing concerning the approval of the 61 Locust Street application. We take this opportunity to remind the Board that the minutes should contain enough detail and accuracy so that a member of the public who did not attend the meeting could read the minutes and have a clear understanding of what occurred. See OML 2016-101.
CONCLUSION
For the reasons stated above, we find that the Board violated the Open Meeting Law by deliberating privately outside of the public's view and by failing to create and approve minutes in a timely manner. We order immediate and future compliance with the law's requirements, and we caution that similar future violations could be considered evidence of intent to violate the law. Additionally, we order the Board members to review the Attorney General's Open Meeting Law Training Videos #1 (Introduction and Open Meeting Law
3 Open Meeting Law determinations may be found at the Attorney General's website, www.mass.gov/ago/openmeeting.
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definitions) and #5 (Meeting Minutes and Records) and certify to our office within thirty (30) days of this letter, using the attached form, that it has complied with this order.4
We now consider the complaint addressed by this determination to be resolved. This determination does not address any other complaints that may be pending with our office or the Board. Please feel free to contact our office at (617) 963-2540 if you have any questions regarding this letter.
cc: Cheryl Rodriguez Medford Zoning Board of Appeals
This determination was issued pursuant to G.L. c. 30A, § 23(c), A public body or any member of a body aggrieved by a final order of the Attorney General may obtain judicial review through an action filed in Superior Court pursuant to G.L. c. 30A, § 23(d). The complaint must be filed in Superior Court within twenty-one days of receipt of a final order.
4 The videos may be found at the Attorney General's website, www.mass.gov/ago/openmeetmg.
Sincerely,
Hanne Rush Assistant Attorney General Division of Open Government http://www.oml.ago.state.ma.us/Default.aspx?sectionYear=1&year=2016