Town Meeting: Articles related to Town/Special Counsel fail to pass

There was so much addressed at last week’s Town Meeting that I didn’t get a chance to cover it all. So, I’m back at it again.

Last week, two citizen petition Articles took stabs at changing the Board of Selectmen’s authority and hiring process related to the Town’s attorney. Both failed to pass muster with Town Meeting voters.

The first was a holdover from the March Special Town Meeting. Voters were asked to give elected boards the authority to hire their own independent counsel when needed. STM Article 8 would have “decentralized” the Board of Selectmen’s authority on the process.

The petition, defended by sponsor Sam Stivers, was to avoid another situation like the one related to the Planning Board and Park Central. And the case used to support the need was also used by opponents to argue against it.

Last summer, 0bjecting to a decision by the Zoning Board of Appeals on Park Central, the Planning Board asked selectmen for independent counsel to advise them on a potential appeal. Planning Chair Don Morris explained that Town Counsel was conflicted out and couldn’t advise them on their ability to sue the ZBA. 

Selectmen voted not to allow independent counsel. They believed that facilitating one board in potentially suing another was a bad idea. That led to the Planning Board, without advice from counsel, filing an appeal. They then again sought counsel to support their case. Selectmen again said no. Planning eventually was required to drop their action.

The developer then went after the board and members for sanctions. His continued attempts led to Town Counsel advising selectmen that developer’s actions were “harassment” and “intimidation” against a Town Board. They were then assigned special counsel.

Last Wednesday night, Stivers argued to voters that Planning could have avoided the situation they are in if they had advice when they were considering filing their appeal.

Desiree Aselbekian sought and got confirmation that Planning was provided counsel (Town Counsel), they just didn’t like it.*

Special Counsel Jay Talerman argued that whenever a board sues someone or is sued by them, the entire Town is liable. From that standpoint, the executive branch is meant to oversee use of counsel. He also questioned legality of funding allowances by pro bono representation or donations. Stivers responded that the Attorney General could decide that if the bylaw was passed.

Notably, attending members of the Planning Board refrained from any comment during the public comment debate.

Voters sided with selectmen and both Town and Special Counsel against decentralizing authority.

On the final night of Town Meeting, the final article addressed again put Town Counsel at the center of debate. Citizen’s Petition Article 43 offered a formalized process for hiring Town Counsel. The plan included public notice of hiring every three years. Interviews would take place in public. And if current counsel wanted to keep his spot, he would be subject to public performance evaluations and public comments would be solicited about his performance. 

The article was proposed by resident Kristine Dameri. She argued:

Many Towns currently operate this way. It is a smart, cost-effective way to conduct business. . . is Southborough getting the best value on legal services for the money we’re spending?

Advisory member Sam Stivers shared that the Town Administator’s office looked into other Town’s practices for Advisory. They learned that many other Towns do bid out and spend less. And he said that it had been at least 15-20 years since the Town did it. And he said that for his business he shops around for legal advice a lot.

It was an opinion not shared by the majority of Advisory.

Selectman Paul Cimino rebutted:

if this was about money, the first sentence of the article would suffice. 

He referred to the rest of the article as putting counsel through “a dog and pony show”.  Cimino followed:

No municipal counsel worth his salt would subject himself to this process.

It was an opinion later echoed by attorney David McCay (of the Economic Development Committee) who called it a terrible idea. As a lawyer who sometimes represents municipalities, he explained:

Some of the most important work that we do is the work that we do behind the scenes in Executive Session. . . putting that out to a public tar and feathering process undermines the trust that the selectmen and Town Counsel have in one another

Cimino accused the petitioners as being motivated by anger over “reasons that don’t need to be singled out”**. He said the proof of that was in the focus on Town Counsel rather than detailing public hiring processes for other positions.

Former Advisory member John Butler said that its good for selectmen advisory to understand residents’ concerns. But voters shouldn’t bind selectmen’s hands this way.

Butler cautioned “only the person using legal services can really judge”. He said it should be left in their hands.

Both Butler and McCay told voters that if they are unhappy with how selectmen hire attorneys, we can continue to ask them about it and take it up at the voting booth when we choose selectmen.

When it came to a vote, the Nays had it.

*Neither party was lying here. It’s a question of interpretation. Essentially, Town Counsel advised against filing the suit. (In the off record conversations, he may even have opined that the ZBA acted legally within its rights.) But the Planning Board was specifically looking for advice on whether or not they had appropriate grounds to overturn the decision. And filing that appeal against the ZBA is something that was judged by Planning as a conflict of interest for Town Counsel who also represents the ZBA.

**But I will “single out” for any readers that don’t understand – the reason is the Park Central project. Some residents angry over the ZBA’s decisions on Park Central have also publicly criticized Town Counsel Aldo Cipriano for his role in advising the ZBA and selectmen.