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Boston City Council's Michael F. Flaherty's systematic failure to comply with the Opem Meeting Law

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03-27-2006 18:12 FAX 6173674024 Boston Globe CITY HALL 001

Commonwealth of Mbuttachusetts

SuFFOLK, ss.

SUPERIOR COURT Civil Action No. 05-01798

KEVIN McCREA & others^1 ^1 Shirley Kressel and Kathleen Devine v. MICHAEL FLAHERTY and the BOSTON CITY COUNCIL

FINDINGS AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Kevin McCrea ("McCrea"), Shirley Kressel ("Kressel"), and Kathleen Devine ("Devine"), filed this action seeking declaratory and injunctive relief.

The plaintiffs' complaint alleges violations of the Open Meeting Law, G.L. c. 39 ss23A-C ("the Open Meeting Law"), by the defendants, the Boston City Council and its President, Michael Flaherty (collecively referred as "the Council").

Specifically, the plaintiffs challenge the legality of certain meetings held in which various members of the Council were present on the following dates: June 3, 2003, June 19, 2003, August, 14, 2003, September 23, 2004, October 21, 2004, November 18, 2004, December 15, 2004 January 13, 2005, February 17, 2005, January 20, 2005, and March 24, 2005.^2 ^2 Although there was a public hearing on December 15, 2004, the plaintiffs allege that an unlawful closed hearing was held prior to the public hearing.

In addition to alleging that there were violations of the Open Meeting Law on particular dates, the plaintiffs also claim that the alleged repeated violations consbreastute a "systematic" failure to comply with the requirements of the statute.

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The Council denies the plaintiffs' allegations that violations occurred as to the meetings held on January 13, 2005, January 20, 2005, February 17, 2005, and March 24, 2005

In addition to denying that any violations have occurred, the Council takes the position that the December 15, 2004 meeting cured any violations which may have occurred on earlier occasions.

This Court has previously ruled that the plaintiffs may not maintain an action to seek invalidate the December 15, 2004 vote because it is time barred pursuant to the strict twenty-one day statute of limitation of actions provision of Section 23B Memorandum of Decision and Order on Defendants' Motion to Dismiss Pursuant to Mbutt. R. Civ. P. 12(b)(6), 6.

However, the plaintiffs also seek injunctive relief, including an order compelling the Council to comply with the Open Meeting Law at future meetings.

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This matter is now before the Court on Defendants' Motion for Summary Judgment pursuant to Mbutt. R. Civ. P. 56 on the basis that there are no genuine issues of material fact and that the plaintiffs have no likelihood of proving that they are enbreastled to the injunctive relief sought.

For the reasons stated below, the Defendants Motion for Summary Judgment is DENIED and summary judgment is GRANTED in favor of the plaintiffs pursuant to Mbutt. R. Civ. P. 56(c).

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