The Massachusetts Bay Transportation Authority on Tuesday said its board of directors did not violate the state’s open meeting law in June when members directed the agency to stop providing buses to shuttle police to protest sites amid the George Floyd demonstrations.
The agency released a letter from its top lawyer in response to a complaint filed by State Representative Timothy Whelan, a Republican from Cape Cod and former State Police sergeant, asserting the board members violated the open meeting law when they discussed and communicated the directive to T management on June 4.
Whelan said there had been no notice of a board meeting where the issue would be discussed, which would mark a violation of the state’s open meeting rules.
“The only notice of this meeting the public received appears to have come in media reports and several quotes offered to the media announcing the result of a vote at this meeting,” Whelan wrote earlier in June in a Facebook post about his complaint.
In response, MBTA chief counsel Michelle Kalowski argued there was no violation because the board did not have a vote on the issue, much less a meeting. Instead, the chairman of the T’s board, Joseph Aiello, communicated the sentiment of members to agency officials, who announced the ban on bus use the following day.
“This policy decision was squarely within the realm of authority of MBTA staff and did not require a board vote,” Kalowski wrote in a letter to Whelan that was dated June 22 and released Tuesday.
The T declined to comment beyond Kalowski’s letter.
However, specialists in the state’s open meeting law believe the T board may indeed have erred.
Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, noted that the chain of events involved Aiello consulting individually with board members and then communicating the directive “based on various input from” them, as Kalowski wrote in her letter. That, Ambrogi said, could constitute a so-called serial meeting.
“As soon as you start talking one-on-one about anything within the board’s jurisdiction, then you really need to worry about whether you’re going into dangerous grounds,” said Ambrogi, whose organization favors strong government transparency rules. “I’m not seeing a lot of nuance in it.”
In an e-mailed statement, Whelan said he would press the issue with the attorney general’s office, “making the case that transparency matters.” He can bring the issue to the attorney general 30 days after filing the original complaint, which was around June 8.
If proven, open meeting violations are generally met with a “slap of the wrist” in Massachusetts, Ambrogi added, such as required training sessions on the law, though there can be financial penalties.
Aiello did not respond to requests for comment. He had previously acknowledged the open meeting complaint at a T board meeting, but did not detail the content.
Further complicating matters, the T’s board is about to expire under the terms of legislation that created a five-year emergency oversight following the disastrous winter of 2015. However, last week House and Senate negotiators reached a deal to extend the board for one more year. The plan will still need Governor Charlie Baker’s approval before it is finalized.