By DAN VALENTI

PLANET VALENTI News and Commentary

(FORTRESS OF SOLITUDE, TUESDAY-WEDNESDAY, AUG. 12-13, 2014) — THE PLANET got it our of her. City council president Melissa Mazzeo has joined a host of her council colleagues in wanting and expecting Mayor Dan Bianchi to appear before the city council on Sept. 2 to answer a list of hot questions regarding 100 North St. The mayor will duck that appearance only at the expense of any last remnant of whatever credibility he may have left.

Allow us to explain.

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Welcome back to “100gate.” The issue takes its next step at tonight’s city council meeting (Aug. 12), which promises to be of marathon length. As almost everyone who’s paying attention now knows because of THE PLANET’s exclusive coverage, Mazzeo has sent councilor-at-larg Barry Clairmont‘s petition directly to the mayor under council Rule 27. Yesterday, THE PLANET raised questions surrounding this procedural step, which on its surface seems motivated by politics.

The referral sidesteps a council vote on Clairmont’s petition, which asks his colleagues if they favor having the mayor answer questions at the Sept. 2 meeting on his plans to move 40% of city hall into offices on the second floor of 100 North St. The mayor has his private offices for his current job at Global Montello energy company on the third floor of 100 North. TES has received near unanimous objection to this plan, which would, in rent alone, cost the city $341,000 for the three years mentioned in the proposed lease. This does not include a host of ancillary costs such as moving expenses, insurance, and more. The affected city offices currently are located in city hall at 70 Allen St., rent free.

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Mazzeo Explains Her Move, Wants Mayor to Answer Council’s Questions

THE PLANET has had an interesting and enlightening running dialogue with Mazzeo on her procedural move. After persistent non-committal back-and-forth in previous days, there came a break through. Mazzeo told THE PLANET last night that “the mayor should come to the Sept. 2 council meeting and answer the questions asked [in Clairmont’s petition].” This is the first time Mazzeo has gone on the record with such a statement. In the interests of tranasparency and education, THE PLANET now brings you the highlights of our exchanges with the council president.

First, though, we commend Mazzeo for her forthcoming responses to our queries. She did not fail to return one of our calls amid what she say was a week in which she has been flat-out with work and other responsibilities. She sets a good example for the mayor, who — to what will ultimately be his political demise — has continued to ignore our requests for dialogue and comment for two years now.

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Nowhere, Man

Several days ago, THE PLANET asked our Right Honorable Good Friend why she referred Clairmopnt’s petition to the mayor instead of placing it on the agenda.

“I sent it to the mayor because these questions are for him,” she said. “Where else should I have sent it? It’s a long agenda, and we can’t entertain every petition, and this seemed very clear where it should go.”

PLANET COMMENTS: Where else should she have sent it? The answer is simple: nowhere.

The petition asks the council to vote on sending the questions to the mayor. The intended initial audience of the petition was the city council, not the mayor, as the wording of Clairmont’s petition clearly states [ED. NOTE: See THE PLANET’s “Weekend Edition, Aug. 8-10” for the full language of Clairmont’s petition].

A procedural smoking gun, if you will, comes from the gigantic agenda for tonight’s meeting. The agenda includes a second Clairmont petition asking that the mayor follow city rules to run the department of public services and the department of public utilities as they are currently constituted in city code. The mayor wants to reorganize the departments, an issue also on the agenda.

THE PLANET points out that Mazzeo did not refer that petition to Bianchi under Rule 27, as she did the “100gate” matter. Why?

* Both involve the mayor.

* Both involve the city charter.

* Both ask for his colleague’s considerations.

* Both reflect the will of the people in Clairmont’s role as a citywide representative.

This strongly suggests that Mazzeo referred Clairmont’s “100gate” petition under Rule 27 as part of a political plan as opposed to a procedural efficiency. Rule 27 removes “100gate” from the agenda, keeping it under the radar with the hope that citizens, taxpayers, We The People, Mary Jane and Joe Kapanski, The Little Guy, and John Q. Public are not paying attention.

As to the matter of “it’s a long agenda” and “we can’t entertain every petition,” no one to our knowledge has ever asked any city council president or anyone “to entertain every petition.”  No one has done so in this case. Citizens have a right, however, to expect important, non-routine petitions such as Clairmont’s — with somewhere $500,000 of taxpayer money on the line — to receive a full hearing.

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Mazzeo Denies Mayor’s Involvement

THE PLANET asked Mazzeo if she referred the item “on the mayor’s orders.” She said, “I set the agenda as I see it, not anyone else.” She did not respond to our question on what the mayor’s options are in dealing with an item referred to him under rule 27. THE PLANET has requested comment directly from the mayor. When the phone doesn’t ring, we’ll know it’s Dan Bianchi not calling us.

In a followup, we asked Mazzeo if she had “any communication with the mayor regarding either the agenda or Clairmont’s petition.” She replied, “I’m straight out with stuff, so I’m trying to answer you as best I can. I send many petitions under rule 27 every agenda. When the time arises any one can talk on an item that was referred under that rule . Clairmont wants this sent to the mayor to answer questions so I sent it to the mayor. Hope this clarifies my actions.”

It didn’t, and THE PLANET persisted.

Open Meeting Law Violation? We Think Not

Given that Mazzeo didn’t return our request for comment the first time around on Clairmont’s petition (Church Cotton was the only other councilor who ducked us), we then asked, again, for her views on having the mayor come before the council to answer the questions regarding “100gate.” She ducked the question a second time

Over the weekend, THE PLANET once again asked Mazzeo is she is in favor or not of having Bianchi before the council to answer questions about the proposed move to 100 North, our third request. Yesterday, Mazzeo got back to us. She answered the question this way:

“I didn’t respond because I felt that you asking everyone the same question in a mass email and asking for all of our opinions was a violation of the open meeting law. I did get a call from some one questioning it and I called myself to ask. It can absolutely be considered an OML violation and she sent me 2 cases to back up her opinion. I don’t think any one has made to claim as to the violation but I will be asking the councilors going forward to be careful when they do give their opinion. I will vote on the issue on Tuesday.” [PLANET’s underline]

THE PLANET pressed on that point, saying we disagreed with that interpretation. We added that would possibly apply if THE PLANET was a voting member of a municipal deliberative body that had some decision-making say in the issue. We are not. We are the press. A journalist seeking information on a legitimate public issue cannot under even the most liberal interpretation of the Open Meeting Law be under the same restrictions that binds public officials.

THE PLANET asked Mazzeo to be specific about who she called for clarification of her concern about a possible violation of the Open Meeting Law.

“I spoke with Mallory at the AG’s office,” she replied. Mazzeo offered to send THE PLANET “the two examples she [Mallory] sent me.”

We took her up on her offer. When our Right Honorable Good Friend send the two opinions from the AG’s office, she admitted for the first time that Mallory told her “an Open Meeting Law violation didn’t occur in those cases.”

Repeat: The two examples the AG sent were of cases where Martha Coakley‘s office found no OML violations!!

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In the interests certainly not of tedium but of full transparency, here are the two cases Mazzeo says AG Marth Coakley’s office sent her:

FIRST CASE

( LETTERHEAD)

MARTHA COAKLEY

ATTORNEY GENERAL

Robin E. Hamlett Recording Secretary Gill-Montague Regional School Committee 35 Crocker Ave Turner Falls, MA 01376

Dear Ms. Hamlett:

THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108

June 4, 2013 OML 2013 – 74

(617) 727-2200 www.mass.gov/ago

This office received an Open Meeting Law complaint from Stephanie Bassett-Fox dated May 16, 2012, alleging that the Gill-Montague Regional School Committee (the “Committee”) violated the Open Meeting Law, G.L. c. 30A, §§ 18-25. The complaint specifically alleges that Committee Chair Mike Langknecht and Committee member Jeff Singleton engaged in “public discussions about School Committee matters” through a website, www.montaguema.net.The complaint was filed with the Committee on or about April 12, 2012. The Committee responded to the complaint by letter dated April 25, 2012.

Following our review, we find that the Committee did not violate the Open Meeting Law because a quorum of the Committee did not engage in discussions on public business within the Committee’s jurisdiction outside of an open meeting. In reaching this determination, we reviewed the April 12, 2012 complaint filed with the Committee; the Committee’s April 25, 2012 response; and the May 16, 2012 complaint filed with our office. We also reviewed a series of messages posted to www.montaguema.net,provided by the complainant, dated December 14, 2011 through May 2, 2012.

FACTS

The Committee is a nine-member public body. The website, www.montaguema.net, describes itself as the “place on the web for local gossip, news, event calendars and business listings for Montague, MA.” The website functions as a message board, allowing members of the public to post, respond to, and read messages. Between December 14, 2011 and May 2, 2012, Committee members Mike Langknecht and Jeff Singleton posted messages to the website, occasionally directed to each other, regarding public business within the Committee’s jurisdiction. Examples of topics discussed by the two Committee members via the website include discussion about the teachers’ union mobilizing teachers to challenge the Committee’slong term planning process and the firing of a School District employee. None of the other Committee members posted messages to the website.

DISCUSSION

The Open Meeting Law requires that “[e]xcept as provided in [G.L. c. 30A, § 21(a)], all meetings of a public body shall be open to the public.” G.L. c. 30A, § 20(a). Meeting is defined, in part, as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” G.L. c. 30A, § 18. Deliberation is defined, in relevant part, 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. A quorum is a “simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.” Id.

Here, two members of the nine-member Committee communicated directly with one another via an online message board regarding public business within the Committee’s jurisdiction, including topics regarding the teachers’ union and the firing of a School District employee. Although a majority of the Committee’s members could have read the messages on www.montaguema.net , Mr. Langknecht’s and Mr. Singleton’s messages were not directed to a quorum of the Committee. See OML 2011-33. 1We therefore find that, because the communications were not directed to a quorum of the members of the Committee, and because a quorum of the members did not participate in posting to the website, that the Committee did not deliberate outside of an open meeting and did not violate the Open Meeting Law. See G.L. c. 30A, § 18. However, we caution the Committee that communication on an electronic message board is improper deliberation outside of an open meeting if it is between or among a quorum of the body’s members and concerns public business within its jurisdiction. See id.

CONCLUSION

For the reasons stated above, we find that the Committee did not violate the Open Meeting Law.

We appreciate the patience and cooperation of the parties during this investigation, and now consider this matter closed. Please contact our office at (617) 963-2540 if you have any questions regarding this letter.

Sincerely,

onathan Sc arsic Assistant Attorney General Division of Open Government

Open Meeting Law determinations may be found at the Attorney General’s website, www.mass.goviago/openmeeting.

2

cc: Stephanie Bassett-Fox

[PLANET’s underlines]

The second case Mazzeo sent along from the AG’s office again showed no Open Meeting Law violations. We shall not present it, in the interests of brevity. For those interested, it is a July 25, 2011 AG’s ruling OML 2011—33.

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PLANET Presses Where Others Would Have Folded

This is a far cry from the council president’s initial and unchallenged claim that “It can absolutely be considered an Open Meeting Law violation.”

Here’s the point: If THE PLANET did not press for specifics, Mazzeo’s initial claim of an “absolute violation of the Open Meeting Law” would have stood and been published as is. That’s what would have happened if this story had gone this far in the hands of any of the local mainstream media. They would have accepted a general unsupported statement at face value. They would have been reluctant, afraid, or too busy to press. Fortunately, Pittsfield citizens and taxpayers had THE PLANET on the job.

Mazzeo told us that Mallory from the AG’s office “directed me to read carefully the discussion portion of each and that what occurred with the Pittsfield councilors could be looked at as a violation of Deliberation. As I said , the person who called me is not the type of person who would make a claim, just wanted to give me a heads up. I think the best course is to not ask everyone to respond to a petition until after it goes before the council, that way it doesn’t seem like their opinions are influencing each other.

In addition to the fact that in both cases cited no Open Meeting Law violation occurred, THE PLANET points out a key difference between our questions of the city council and the two AG rulings Mazzeo passed along. Both of the AG’s cases referred to deliberations of members of public bodies among themselves.

That is a far cry from an independent journalist, a member of the press, asking members of a public, elected deliberative body (e.g., the city council) for their views on a current public issue. THE PLANET also points out that when we asked councilors for their views on Clairmont’s petition, there was no deliberation involved. This was simply a case of a journalist asking 11 members of the city council to weigh in on the matter. It was not “deliberation.”

THE PLANET heard independently from nine members. Mazzeo and Churchill Cotton were the only two not to reply. Given Mazzeo’s views yesterday that she expects the mayor to be before the council on Sept. 2 to answer questions about “100gate,” only Cotton has not made one peep.

Let’s see what happens tonight. It promises to be a long meeting, with “100gate” apparently to come next to last on the endless agenda.

Hang in there, everybody. This issue is huge on its face, given the numerous legitimate questions of a highly questionable mayoral proposal. It also looms large for what we may learn about the balance of power and politics in the city. Is the city council a legitimate co-governor along with the mayor, the only official voice We The People have in public affairs — or — is it the mayor’s lap dog and rubber stamp?

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