There they all were, smiling up at the camera from a corner table in the North End’s Cafe Mimo.
Five of the 11 New Bedford city councilors, that is. Council President Linda Morad along with councilors Shane Burgo, Maria Giesta, Ryan Pereira and Naomi Carney. Also standing in for the Feb. 2 photo is Scott Ferreira, the owner of Mimo’s.
Freshman Councilor Burgo posted it proudly to his Facebook page.
Five of 11 councilors is not quite a quorum (voting majority) of the council. That’s a good thing because a quorum of the council meeting this way — which the council had posted on the city website as a “public gathering” of the council — might well be prohibited by state law, unless the public has access to both seeing and hearing the meeting in real time.
I guess it all depends on whether a publicly advertised “gathering” of the council is different from a publicly advertised “meeting.”
What’s the difference? I don’t know. It apparently depends on whether a private restaurant owner wants to break up his or her dining room to let the public listen to whatever the council is talking about when it gathers in the establishment. Because you have to know whether the council is talking business or pleasure to know whether it’s a public meeting or not.
“Access to a meeting must include the opportunity to be physically present, as well as to see and hear what is being discussed by the members of the public body,” according to Massachusetts’ Open Meeting law, (940 CMR 29.00).
But though a quorum of councilors did not show up to the Feb. 2 “council gathering” — which was publicly advertised on the Council Meeting page on the city’s website (but not sent out to the media as is normally the case with all council meetings that have a published agenda) — a quorum of councilors could very well have shown up. All 10 councilors (the 11th council seat is vacant due to the Dec. 1 resignation of Hugh Dunn) were invited, even though the posting said there was no agenda and, “It is not expected that the members will deliberate on any municipal business at this gathering.”
It’s worth noting here that “not expected” is not a guarantee that no public business would be done. It’s just not expected.
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If the quorum had shown up, would the councilors have been under an obligation to let any member of the public remain close enough to their Cafe Mimo table to see and hear their discussion? You know, just to make sure none of them strayed off into official city business? By accident or otherwise.
The state attorney general’s office says that, in general, official business at public meetings is construed broadly to mean “any communication between or among a quorum regarding business within the body’s jurisdiction, even if no opinion is expressed and no action is taken.”
And according to the AG’s site on mass.gov, at any publicly noticed gathering of the council, “Members of the public body must be clearly audible to each other and to members of the public at all times.”
It’s a bit of a tricky law. If the council had not posted the gathering notice, and a majority of them had just showed up to a restaurant, that would apparently be fine, as long they did not drift off into discussing public business. I’m not sure, however, if it would be legal if all the councilors were invited to the restaurant by the way of email, telephone or just the public gathering notice. The AG’s office will not comment on specific cases unless there is a formal complaint. But you tell me. It all certainly looks like a way to get around, or very close to getting around, the open meeting law. If it looks like a duck and quacks like a duck, is it a duck?
City Clerk Dennis Farias said the “council gathering” was posted out of an “abundance of transparency” but, ironically, the council might have been safer, according to state law, just not posting this get-together, which under new Council President Linda Morad is supposed to start taking place once a month in a different neighborhood.
Morad, who seems to be trying to counter an often very negative image of the City Council in New Bedford, is said to be billing it as an attempt by the council to get out into the neighborhoods and support business in the neighborhoods. I wish I could tell you more about her thinking but she does not return my phone calls lately.
There is some surprising case law on this kind of scenario in Massachusetts.
In a 2016 Fall River case at which five of nine city councilors (a quorum) met at an Applebee’s Restaurant, the AG’s office, astonishingly in my opinion, just took the councilors’ word for it that they did not discuss the city business at the meeting. A formal complaint was filed, but Maura Healey’s office ruled that absent evidence of public business being discussed, there was no violation.
It’s not the restaurant, or any other private location, that is the issue. It’s the access of the public to the council gathering. The Fall River Applebee’s gathering was never even advertised.
“There is no requirement in the OML that meetings take place only in government buildings,” wrote the AG’s office to me. “Nothing in the OML prohibits a quorum of a public body from attending a social gathering or event together, provided they do not deliberate.”
That sounds like a Catch 22.
How is the public to know if the councilors have deliberated unless they are able to be nearby and listening in real time? And if it’s only a legal public meeting if it was advertised ahead of time, how is the public to exercise its right to see and listen?
“There is nothing inherently problematic with holding a meeting at a location such as a restaurant, as long as the location is open to the public, ADA-accessible, and enables the public to see and hear the discussions,” the AG staff also wrote.
It’s all very confusing and all very smelly, if you ask me.
None of the councilors I talked to for this story — which included Ian Abreu, Shane Burgo, Brad Markey and former Councilor Joe Lopes — voiced any discomfort with the council meeting this way.
In fact, they all sounded like they thought it was a good idea, though to be fair, when Abreu and Lopes were council presidents the last three years, neither of them held these kinds of meetings.
“I think it’s a good idea,” said Councilor Markey. “We’re not going there to discuss business. I wouldn’t want to (do public business).”
For the record, Markey said he did not go to the Feb. 6 meeting because of a death in his family.
It’s just to get the councilors into the different neighborhoods, Markey said, and he and other councilors said the council’s attorney, David Gerwatowski, advised the councilors it was all legal. Gerwatowski did not return my phone call.
These council gatherings are a speciality of Council President Morad, who has returned to be the council chair after four years out of the top seat on the council dais. She held these kinds of meetings four years ago, the last time she was council president. Her argument, which as I said is evidently popular with most of the other councilors, is that their purpose is to build council and community spirit across the various neighborhoods of the city.
That’s a nice thing, but you don’t have to have all 10 or 11 councilors invited at the same time to accomplish this sort of thing. Just two or three of them could arrange to go out to a restaurant once in a while. Different councilors for different wards.
It’s also fair to point out here that it is Morad who has taken to polling her fellow councilors by email and obtaining their positions or recommendations ahead of council meetings. She has then crafted a council motion that will then be voted on in public. That’s what happened on recommendations for how the city should spend its pandemic relief (ARPA) monies last year.
I raise the issue of these City Council restaurant meetings because in recent weeks, the council has taken a couple of major actions that to some observers seemed to indicate some council actions had been a done deal before they ever got to the council chambers.
One, on the reclassification of city employee salaries — key councilors like Abreu, Brian Gomes and Maria Giesta — said little to nothing during the council’s public debate in the chambers. But they all went along with proposals by councilors Morad and Carney to grant salary increases to seven or eight favored employees that raised their compensation to anywhere from 30% to 50% above the state median.
All of the councilors later fell over themselves saying they wanted to reverse their vote because they had heard from the public that it was too much money. At the meeting to reverse their initial vote, the majority of the councilors again stayed silent and Morad argued that the previous vote had all been done in “public,” which belies the fact that the previous public discussion never referred to the dollar figures behind the employee raises or who was getting the raises, which turned out to be any number of department heads in a position to do the councilors favors.
Now, I get it. Political deals are often cut behind the scenes. That’s the way compromises are often ironed out in elected bodies. Call it vote trading, realpolitik, whatever.
It’s also worth noting that the Massachusetts Legislature has long exempted itself from the state’s Open Meeting law. And that at none other than the Constitutional Convention of 1787 itself, the representatives are said to have nailed closed the shutters of Independence Hall so the eavesdropping press could not hear what they were up to.
It’s true, it’s harder to get anything done in government when the public is listening.
But though it’s not easy to do the public’s business in public, the state Legislature has nevertheless thought there is a value for the public to know what the individual city and town governments are up to, and it passed the Open Meeting law.
The public’s business should be done in public.
The New Bedford City Council meeting in restaurants once a month is just too much of a temptation to begin doing council business without the documentation of cable TV cameras. What if some member of the public comes up to the gathered councilors’ table and begins talking about an important issue of the day?
And while I’m at it, the Legislature should begin doing more of its deliberative process in public as well. It should not have exempted itself from the Open Meeting Law.
If you think I’m making too much of this, don’t take my word for it, take the word of the New England First Amendment Coalition.
“It would be very hard to argue that this is not a public meeting when they are giving public notice of the meeting,” said Justin Silverman, executive director of the political watchdog group.
“It seems like an effort to skirt the open meeting law,” he said.
“It seems like a way for the City Council to have meetings while the public has limited access and free to have a quorum or not, doing city business or not, and expecting all New Bedford residents to just take their word for what happens.”
Email columnist Jack Spillane at email@example.com.