When Hacks Attack.
By Jim Conley • Oct 5th, 2007 • Email This Post to a Friend •
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Here we go again.
In his resignation letter from the Brookline Zoning Board of Appeals, Attorney Lawrence Kaplan alleges, publicly for the first time, that he was “assaulted” at a May 24, 2007 ZBA hearing on One Somerset Road.
So how come charges weren’t brought? Brookline Police sought a summons based on Kaplan’s allegations (made at the time) and none was issued. With that, we’d have to assume that no assault occurred. Wouldn’t we?
Last month, Brookline Police Chief Daniel O’Leary and Town Administrator Richard Kelliher made public statements to the effect that Selectman Gil Hoy had run afoul of the law in Boston. They have no proof to back up the claim, so we have to assume that Hoy broke no laws. Don’t we?
Folks, if you want to live in a community where sworn officers of the Bar and the Shield can pop off on anyone without offering any proof to support their allegations, Brookline is for you. But if you care, I mean really care, about the integrity of law enforcement and public policy in Brookline, it’s time to make your voice heard.
Brookline Town Government is an embarrassment to us all because Kaplan, O’Leary, Kelliher, Building Commissioner James Nickerson, DPW Commissioner A. Thomas DeMaio, Selectmen Robert “The Mensch” Allen and Nancy Daly (to name just a few) show nothing but contempt for those they serve. All they can do is rant on about how hard they work and how no one supports them in their difficult pursuits.
At least some of these bawlers see that the sure remedy to their woeful plight is to pack it in. Let’s hope the others get the message.
Update: You can read Kaplan’s resignation letter here. Talk about coming unhinged. In the letter Kaplan said it was only because of his mercy (by not “pressing charges” stemming from the May 24th incident), that Town Meeting Member Arthur Conquest was not charged with assaulting him.
Wait a minute, the last I knew any complaint in the matter would have read “The Commonwealth of Massachusetts (not Lawrence Kaplan) vs. Arthur Conquest”. The great myth in our system of justice is that victims get to decide who goes on trial. They don’t. Kaplan may have recanted his statement(s) or he may have refused to testify, but he cannot dictate which course the criminal justice system might take.
I would expect his being an attorney and all he would know that.
So, did Kaplan recant his statement made on the 24th? Did he refuse to testify? We don’t know because the Brookline Police won’t release the witness statements.
This site is going to the Superior Court to get these statements and Mr Kaplan has just offered up new reasons why they can no longer be withheld from the public.
Update (2): Of course, we’re also interested in the reports to determine whether Kaplan, as has been alleged, told police that residents had disrupted the ZBA meeting while it was in progress. It’s beyond debate that the meeting had adjourned. But the police seemed to believe that they could detain Conquest. This is allowed for under the statute that governs disruptive persons interfering with official business. But not if the meeting had adjourned.
I happen to think police detention in unwarranted circumstances is a very serious matter.
Jim Conley is publisher of On Brookline.
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The second paragraph of Lawrence Kaplan’s letter to the Selectmen begins: “In case you do not recall, I am the Board Member who was the victim of an alleged assault by TMM, Arthur Conquest.” Why did Kaplan use the word “alleged”? Did someone other than Kaplan allege this? If so, who? Does this suggest that Kaplan himself had never “alleged” that he was assaulted? Does Kaplan claim that he was indeed assaulted?
Two sentences later in that paragraph Kaplan states: “If I had not voluntarily agreed to not press charges, Mr. Conquest would have had to defend himself in court.” This would suggest that Kaplan believes he was indeed assaulted, and not merely “allegedly.” Now I’m sure that Kaplan in his long career as an attorney has heard that a ham sandwich can be indicted. Anyone can claim he or she has been “allegedly” assaulted and seek a criminal complaint. But often in such a case he or she may face a similar cross criminal complaint for an alleged assault or something else.
In the very next sentence of that same paragraph Kaplan states: “Selectman Hoy, rather than speaking publicly or holding a hearing on the alleged assault, chose to deal only with the insensitivity charge, and to date there has not been a statement attributed to Hoy or the Board of Selectmen condemning the alleged assault.” Here, Kaplan twice uses “alleged assault.” Why the caution? One would think that Kaplan would know, at least in his own mind, whether or not he was assaulted, as suggested by the very definition of the crime of assault. Hoy did not speak up publicly before Kaplan’s letter, a matter of Hoy’s choice. But why does Kaplan take Hoy to task for not “holding a hearing”? What type of a hearing would he want Hoy to hold? What kind of a hearing could Hoy have held? Yes, the Selectmen serve as police commissioners and have badges. But could they hold a hearing and issue a criminal complaint for assault or otherwise against Mr. Conquest? Besides, Kaplan had “voluntarily agreed not to press charges.” Perhaps the Selectmen have judicial powers I am not aware of.
The penultimate (my favorite word!) paragraph of Kaplan’s letter refers to “the members of the Brookline ZBA, one of the most respected boards in the Commonwealth ….” For some reason Kaplan states this status as a fact and not “alleged.” He is so confident of this status of the ZBA as a fact whereas he describes at least four (4) time an “alleged assault.” Perhaps Kaplan is just being careful as a lawyer.
This penultimate paragraph suggests that the other ZBA members stepping down may have done so for the principal reasons that the Selectmen did not support them and the use of certain ill-chosen words by one of them. Does this suggest that the three of them had conferred on their resignations and did so in lock-step? Perhaps their decisions to resign may relate to the zoning case that had been closed just before the Town Hall Brawl that several weeks later was reopened and the earlier decision reversed. This case is on appeal. While it may be unusual for ZBA members to testify on an appeal to the court system, this is an unusual case, as is clear from the rather extensive ZBA written decision that recites in detail the events of both the first and the second hearing. The lawyer for the appealing party may wish to inquire as to any contacts of and with the ZBA panel in between the two hearings other than in compliance with the Open Meeting Law
By the way, the written decision includes no reference to the “alleged assault” as the first hearing had been closed when the “alleged assault” took place.
Regarding Update (2), the applicable statute seems to be Section 23C of Chapter 39:
Section 23C. Regulation of participation by public in open meetings.
Section 23C. No person shall address a public meeting of a governmental body without permission of the presiding officer at such meeting, and all persons shall, at the request of such presiding officer, be silent. If, after warning from the presiding officer, a person persists in disorderly behavior, said officer may order him to withdraw from the meeting, and, if he does not withdraw, may order a constable or any other person to remove him and confine him in some convenient place until the meeting is adjourned.
When the Police arrived at Town Hall on the first floor and “addressed” Mr. Conquest, there was no public meeting being held there. The ZBA meeting had been on the Sixth Floor. Since Mr. Conquest was NOT then on the Sixth Floor, Section 23C would not seem to be applicable.
Did the “presiding officer” (ZBA Chair Gordon) take the steps outlined in Section 23C? If not, who might have, and under what authority? The Police may have known of the ZBA meeting on the Sixth Floor. But Mr. Conquest was on the First Floor. Even if there had been any disruption of the ZBA meeting in progress by Mr. Conquest, clearly five floors separated him from the site of the ZBA hearing when the Police “addressed” him on the First Floor. As has been pointed out much earlier, the Police did not witness the events of the Sixth Floor’s Town Hall Brawl. So the situation faced by the Police upon their arrival at the First Floor of Town Hall involved a “he said/she said” situation. This was not a matter of hot pursuit, blood on the floor, etc. So why was Mr. Conquest singled out as he was by the Police?
The public records in the Police Department, if released, may hold the answer. If the Board of Selectmen does address this matter, I would hope it would be in the form of a public hearing, so that members of the public can ask questions and express their views and demonstrate that indeed Brookline is a diverse community.
Apparently Diane Gordon and Bailey Silbert in their resignation letters did not indicate they were doing so “in protest.” For this they deserve credit as they exited “stage right.” But Lawrence Kaplan just could not resign without the need to vent. I have commented on Kaplan’s letter above. But I neglected to focus upon his final paragraph in which he states:
“It was my privilege and pleasure to have worked with countless residents of the Town, especially those who were permitted to make additions to their homes to provide for much needed additional living space for themselves and their families.”
Residents appear before the ZBA because of Brookline’s zoning bylaw and/or provisions in Chapter 40A. Many of the matters that come before the ZBA are uncontested in the sense that no one (whether with or without legal standing) objects to the relief sought. While the ZBA still has to consider the requirements of the zoning bylaw and/or Chapter 40A, what the heck, if no one complains, go along, even if the relief sought may possibly be in violation of the zoning bylaw or Chapter 40A.
But what about situations where abutters, abutters to abutters and others interested in proper application of the zoning bylaw or Chapter 40A, appear to voice their objections? Kaplan does not recognize them in his letter of resignation. In fact, it was just such a situation that seemed to precipitate the Town Hall Brawl.
The challenge to the ZBA (oral) decision in the first hearing on One Somerset that brought about a rather unusual second hearing came from the Building Commissioner who submitted his resignation (effective in a couple of months) about a week ago. His challenge was successful and the ZBA reversed course. Perhaps there may be flies on the wall in Town Hall that might relate any discussions that might have taken place between the end of the first hearing and the beginning of the second hearing, and by and between whom.
So the Building Commissioner was eventually successful (assuming the Land Court goes along) but felt compelled to resign. Those who had objected at the first hearing were in effect vindicated. The ZBA members (Gordon, Silbert and Kaplan) got it right the second time. But they have now resigned.
What apparently precipitated all of these resignations is that they, the Building Commissioner and the ZBA members on the One Somerset panel, were not unanimously supported by the Selectmen and perhaps other Town officials. Boo hoo, sob sob. Did they expect a popularity contest? Get a life, a sense of humor. Get over it.
Now, why might Kaplan not have tossed some kudoes in his resignation letter to residents who appeared before him over the years in good faith to express their objections to those who seek zoning relief and relief under Chapter 40A from the ZBA? Perhaps this may be attributable to the bias that any attorney who practices zoning law representing primarily developers/property owners, and seldom objecting abutters, etc, might develop. Keep in mind that the Town Hall Brawl following the close of the first hearing on One Somerset involved persons interested in the proper enforcement of zoning and building laws in Brookline, good people who in good faith questioned the ZBA’s first decision. Let me lead the round of applause for them.