MEMORANDUM

TO: FROM: SUBJECT: DATE: CC:

DUXBURY TOWN COUNSEL SEARCH COMMITTEE WILLIAM F. ZACHMANN SOME PRELIMINARY THOUGHTS, IDEAS, OBSERVATIONS, AND QUESTIONS 6/22/2012 DUXBURY BOARD OF SELECMEN, DUXBURY TOWN MANAGER

EXECUTIVE SUMMARY

This memorandum offers some preliminary thoughts, ideas, observations, and questions concerning the search for a new Duxbury Town Counsel. The intent is not to advocate for or against any particular point of view but, rather, to provide some broad grist for everyones mill and to identify topics that may be helpful for this Committee in its initial deliberations. The net is cast intentionally wide to encompass not only the immediate charge of this Committee, but potentially foundational and/or peripheral matters that may (or perhaps may not) be relevant to consider along the way as well. Matters addressed below include: 1. What type of firm and/or arrangement would best serve the Town of Duxbury in obtaining maximum benefit from the services of a Town Counsel in the years ahead? 2. What is the range of likely costs for the legal services of a Town Counsel in terms of billing rates and other cost factors? 3. What exactly are the legal services that the Town of Duxbury requires of a Town Counsel and how are they best delivered? 4. What is the appropriate governance structure for the Town of Duxbury regarding the reporting structure, direction, and management of Town Counsel? 5. Should the pro-active instruction of Town officials and employees (paid and volunteer) concerning the legal requirements, duties, and obligations of their offices be an essential element of the job description of Duxburys Town Counsel? 6. Are prior business or other relations with Town officers or employees, local businesses, or contractors doing or potentially doing business with Duxbury relevant considerations to selection of a new Town Counsel? 7. Is commitment to transparency in local government a desirable characteristic in a candidate for Town Counsel?

8. What, if any, is the relevance of a candidates views about the administration of the Freedom of Information Act and the handling of FOIA inquiries to the selection of a new Town Counsel for Duxbury? 9. What, if any, lessons should we learn from the handling of the Johnson Golf Management v. Town of Duxbury et all lawsuit over the North Hill golf course and apply in our selection of a new Town Counsel? 10. Does Duxbury need/want a counselor or a consigliere? 11. What resources are available to help this Committee to determine requirements, establish criteria, and select candidates for he Duxbury Board of Selectmen?
TYPE OF FIRM

This issue is the first listed because it was brought up by Selectman Shawn Dahlen in the meeting of the Board of Selectmen the morning of Thursday, June 14, 2012 (which meeting was called specifically to appoint this Committee) as reported in Susanna Sheehans article on page 6 of the June 20, 2012 edition of the Duxbury Clipper as follows: Selectmen appointed the members for a one-year term but expect them to be finished much sooner. However, they said there is no huge rush to find a new town counsel, as last month they appointed an interim town counsel, Arthur Kreiger, a partner in Anderson and Kreiger of Boston. A more important decision, said Selectman Shawn Dahlen, was for the committee to decide what type of law firm small or large - would best represent the town. One of the issues the committee can grapple with that is significant is that there are two kinds of firms, said Dahlen. You get the smaller local guy that does everything, who is proficient in general municipal law. A smaller operation is without a lot of widespread depth and there are plusses and minuses to that. Or youve got the bigger law firms, like the Anderson-Kreiger that have a broad depth. They can tackle anything from personnel to construction to zoning. Dahlen said the town had supplemented Troys expertise by hiring other attorneys, such as personnel or construction attorneys. Both he said were excellent. Do we keep all our eggs in one basket or do we keep our eggs spread out? (Note: Having been present at this meeting, I am pretty sure that Susanna did not hear Shawn clearly and that the firm he mentioned as an example of a bigger firm was actually not Anderson & Kreiger but Koppleman & Paige.) Shawn is certainly correct in defining two rather different options as the smaller local guy that does everything, who is proficient in general municipal law and a bigger law firm with broad depth and correctly notes that there are advantage and disadvantages for each of these options. This Committee may want to examine these pluses and minuses in some detail. These two, however, are by no means the only possible options, even if viewed as poles in a range with intermediate positions (e.g. middle-sized firms of one sort or another). As Dahlen himself noted, another option is to use multiple firms (or individual attorneys) with particular expertise in

specific areas of the law (e.g. procurement, zoning, etc.) as, in fact, the Town of Duxbury has done for some time. Another quite different option, however, would be to consider creating a position and hiring a licensed, qualified, capable attorney to serve as a full (or perhaps part) time salaried employee of the Town of Duxbury. This is a common practice in larger cities and towns in the Commonwealth of Massachusetts. While at first glance this might seem like overkill for a town the size of Duxbury, it might be an option worth considering as potentially more cost-effective than the more immediately obvious alternatives.
LEGAL FEES AND TOTAL COST TO THE TOWN

What is the most cost-effective way for the Town of Duxbury to obtain the legal services we need? That is a fundamental question that needs to be addressed in order to do the best possible job in selecting a new Town Counsel. On the cost side, this requires information about the total cost to the Town of various alternatives. Some (not necessarily all) of the relevant cost factors that must be taken into account include the billing rates of alternative providers of legal services, others costs directly related to legal services obtained, and potential liability costs that could be incurred as a result of insufficient or inadequate legal services. As for the first, based on now publicly available information concerning some of former Town Counsel Robert Troys billings to the Town of Duxbury, as of 2008/2009 Duxbury was paying its Town Counsel fees of $160-$170 per hour. That is, based on a number of sources, a very low fee. The widely used Laffey Matrix, for example, currently lists a rate of $166/hour not for an attorney, but simply for a paralegal/law clerk! Attorneys fees listed there range from $305/hour for someone just out of law school to $734/hour for an attorney with 20+ years experience (Troy was Duxburys Town Counsel for 26 years). Fees can also vary widely among firms and individual attorneys. So it certainly will be important, in evaluating alternatives for Duxburys new Town Counsel, to be fully informed as to what rates candidates propose initially to offer and what assurances (or not) concerning of future rates. It seems likely, however, that in sourcing the services of a Town Counsel externally, Duxbury is likely to be looking at considerably higher fees than those we paid to Troy. In the second category, we likely need to consider not only related support costs, but also what if any supplementary professional legal services may be required with any given choice of Town Counsel. Will, for example, there be occasions where, as Dahlen note is already the case for Duxbury, additional attorneys must be retained for specialized services in particular areas of the law? What will be the costs of such services? How will they be selected? Who will manage the process? These are some of the questions we probably need to ask and have answered. Finally, how do we appropriately take into account the liability costs of not having sufficient and adequate legal services in trading off the costs and benefits of legal services for the Town of Duxbury? Despite the truism that says, You get what you pay for, higher costs do not necessarily guarantee greater benefits. Nevertheless, as events all too often demonstrate in the real world, the costs of failures to obtain and follow capable, accurate legal advice can lead to costs in damages and other liabilities that far exceed the direct costs of legal services.
WHAT DUXBURY NEEDS FROM OUR TOWN COUNSEL

So the next question that needs to be answered in order to do the best job possible selecting a new Town Counsel for Duxbury is: What exactly do we need our Town Counsel to do? Easy as

this question is to state, it is a more complex question and not nearly as easy adequately to answer as one might at first be tempted to assume it to be. It has some very broad, very general components but some very specific elements as well. An example of the former is that, obviously, we need our Town Counsel to ensure that Duxbury conducts its business so as to minimize the possibility of the sort of liabilities just mentioned above. An example of the latter, however, is whether our Town Counsel needs to be (or if it is desirable that she should be) regularly present at every meeting of the Duxbury Board of Selectmen. We need to have, in effect, some sort of relatively explicit requirements specification describing what Duxburys Town Counsel is expected to do at whatever is the appropriate level(s) of detail in order to assess who can best fulfill those requirements as well as how they are best met. Absent at least some explicit consensus on these requirements, it is hard to see how we can determine what alternative(s) we ought to recommend to the Board of Selectmen.
GOVERNANCE ISSUES

What is the most appropriate governance structure for the Town of Duxbury concerning the reporting structure, direction, and management of our Town Counsel? In recent discussions at meetings of the Duxbury Board of Selectmen it has become clear that there are differing views, based on differing interpretations of the relevant laws, regarding the legal foundation for the answer to these questions. The Duxbury Town Manager Act of 1987 and the General Bylaws of the Town of Duxbury can be and have been read somewhat differently by various individuals to have somewhat different implications as to the governance structure for Duxburys Town Counsel. Aside from different interpretations of the law, the question that begins this section can also reasonably be legitimately addressed and perhaps at least partly answered purely as management issue as well, as simple a practical question regarding what reporting structure, direction, and management approach is likely to be most cost-effective for the Town of Duxbury, ensuring the best possible legal service at the most affordable cost. It is hard to see how clarification of these matters would not at least minimize future confusion and therefore be useful moving forward. Explicit consideration of alternative governance options within the limits of applicable law may also be useful in ensuring best use of the legal resources of our new Town Counsel. And it would seem likely that this Committee will be better able to evaluate and recommend which candidates are best suited for that structure if we understand clearly what it it going to be. So we may want to try to get some clarification on this point.
TOWN COUNSEL AS TEACHER

It is not the intent of this memorandum to attempt fully to address the complete range of issues for a requirements specification for a Duxbury Town Counsel. One element that might however be included in such a specification is if we want our Town Counsel to act, in effect, as a teacher, instructing Town officials and employees (paid and volunteer) concerning the legal requirements, duties, and obligations of their offices. More generally put, should pro-active instruction of this sort be a fundamental part of the duties included in the job description of Duxburys Town Counsel. Broadly speaking, the services of Town Counsel might be viewed as falling generally into three major categories:

1. Proactive activities to ensure that Town officers, employees, and volunteers understand the law sufficiently well to conduct their activities on behalf of Duxbury appropriately and lawfully. 2. Contemporary advice to appropriately designated agents of the Town of Duxbury on specific situations they are dealing with and how to conduct them appropriately and lawfully. 3. Representation of the Town in Duxbury in legal proceedings in which Duxbury is either a plaintiff or a defendant in court or other context. Town Counsel as teacher (or instructor) falls under the first of these categories which, like the second, serves or is at least meant to serve as to minimize the occurrence of instances of the third while maximizing Duxburys chance in them. It is but one of many possible items we may want to consider in a requirements specification or job description for Duxburys Town Counsel and in our assessment of alternative choices for that position.
PRIOR DEALINGS WITH OR RELATED TO DUXBURY

Another topic that came up in the discussion among the selectmen in the BOS meeting of June 14, 2012 concerned a specific instance of a possible candidate firm to provide Duxbury with the services of Town Counsel: Anderson & Kreiger. Attorney Arthur Kreiger, one of the principles of that firm, is currently Duxburys acting Town Counsel. According to the Duxbury Clipper article previously cited, [Selectman David] Madigan said he did not want Anderson-Kreiger to apply for the town counsel position and directly quotes Madigan as saying: Id prefer that Anderson-Kreiger not be one of the options because I dont want the perception that we brought someone in to drive out Bob Troy. The article goes on to say that Chairman Ted Flynn agreed and quote Flynn as saying: The fact is they are meeting us in executive session, so I kind of agree with Dave, although I think they are a great firm. The Clipper notes, however, that Selectman Shawn Dahlen pointed out that Kreiger was not involved in the selectmens decision to release Troy and quoting him directly as saying: They were very careful. They never offered any comment or recommendation regarding that. Apart from the specific question of whether Anderson & Kreiger should or should not be included in the selection process, a point upon which the selectmen apparently do not presently have a consensus view and are perhaps looking to this Committee for advice, there is a more general question here that perhaps we should to address: What, if any, business or other relations do possible candidates for Duxbury Town Counsel have (or have they had) with the Town of Duxbury; with businesses based in or operating in the Town of Duxbury; with individual officers or employees of the Town of Duxbury; or with vendors or contractors that have done, are doing, or might in the future do business with the Town of Duxbury? The point is not that there is anything inherently problematical about any such relations as may be present. The point is, rather, to ask whether they may be relevant to making the best possible selection of a new Town Counsel. If so, then this Committee should be made fully aware of what they are. Clearly, all three members of the Board of Selectmen consider this is a relevant issue in regard to one particular instance (Anderson & Kreiger). So, may it also be relevant and (in the interests of full transparency in the selection process) for this committee to inquire about all instance of any such relations for all applicants under consideration for the position?

POSITION ON TRANPARENCY IN GOVERNMENT

That brings us to another question that perhaps we ought to consider in the deliberations of this Committee: Is commitment to transparency in local government a desirable characteristic in a candidate for Town Counsel and, if it is, should we make a point to ask about their views on this matter when interviewing applicants for the position? There is a growing recognition at all levels local, state, and federal that the greatest possible transparency is one of the surest ways to ensure that government is fair, equitable, and honest and to minimize the potential harm from waste, fraud, or abuse as well. Duxburys Town Manager, Richard MacDonald and Board of Selectmen Chairman Ted Flynn have publicly and repeatedly stated their firm commitment to maximizing transparency in the conduct of Duxburys affairs of government. Should, therefore, this Committee also make a point to inquire about candidates views of and commitment to transparency in government. Should we take this, too, into consideration in deciding which candidates to recommend to the Board? Will knowing candidates opinions on this matter be useful in selecting the best possible candidate for Town Counsel?
POSITION ON ADMINISTRATION OF FREEDOM OF INFORMATION LAWS

One of the most critical elements in transparency of local government in the Commonwealth of Massachusetts is Massachusetts Public Records Law which includes several different sections of the Massachusetts General Laws and is based upon the United States Federal Freedom of Information Act. These laws all aim to increase transparency of government by giving citizens the right to obtain information from government agencies. They define specific requirements and procedures for requesting, obtaining, and providing such information as well as provisions to safeguard information that, for one reason or another, is deemed not to be in the public interest to be made public (such as classified intelligence information of certain agencies under specific circumstances). These laws have been passed over the years because the typical operation of government has not been very transparent at times with consequences eventually proved to be detrimental to the public interest. Numerous instances not only of fraud, waste, and abuse, but of gross manipulation of governmental process to benefit the private interests of the few and even outright criminality have repeatedly been brought, as it were, kicking and screaming into public view after long being hidden behind refusals to make public information about how the business of the public has been conducted out of the view of the public. Even today, despite such laws, it is not uncommon for to find instances in which even though a governmental body may adhere to the letter of such laws (and some do not even do that at times), the spirit of these laws is violated in the way they are administered. Some of the most common ways in which this is done use technicalities of provisions of the laws themselves to: 1. Make the cost of obtaining information prohibitive by charging supposedly fair copying fees allowed under the statues; 2. Provide requested information in inconvenient forms that make it as difficult and potentially costly to analyze and disseminate;

3. Delay responses to requests for information so as to make the process tediously slow thereby increasing the expense of obtaining the information and preventing or at least making difficult timely analysis and action based upon it; and 4. Using (and sometimes abusing) provisions of the laws designed to protect a limited domain of sensitive information in the public interest as in excuse to refuse to provide information legitimately requested and rightfully available. One need not look far to find what are at least arguable examples of such tactics in use locally, not just in the relatively distant past, but recently as well. [Duxbury Clipper Editor Amy MacKinnon told me in a recent telephone conversation that it cost the Clipper $300 in copying fees to the Town of Duxbury to obtain the records of payments to Bob Troy related to the North Hill case. Such fair copying fees would certainly discourage a ordinary citizen from requesting such information! Court documents in the North Hill case record contain several plausible allegations of delaying tactics or outright refusal to provide requested information.] In fact, given the state of modern computer technology, there is no reason why we cannot rapidly move forward toward far greater transparency in local government, proactively offering information online in machine readable form, readily available to any and all interested citizens, and at very low cost. Rather than require citizens to ask for specific information, we make routine information such as Town budget information, details of expenditures, assessors data, bid and award documents of all 30b (and, for that matter, most other) procurements readily available in formats easy to analyze and to reproduce (e.g. PDF or Word files with machine readable text, Excel spreadsheets, etc.). Under Town Manager Richard MacDonald, Duxbury has made admirable progress in this direction, but much more can be done if we really want to do it to ensure greater transparency and access to information about the conduct of our local government. So: Is the Town of Duxbury truly committed not just to the literal letter but to the authentic spirit of the freedom of information laws and real transparency? Or are we content to see the spirit of such laws frustrated by a literal adherence that relies on technicalities to make it sufficiently expensive, time-consuming, and un-timely to obtain legally available information so as to discourage, in fact what it the clear intention of the laws: genuine transparency in government? If we are committed to transparency and unobstructed freedom of information sufficient to ensure it, should we not look for a Town Counsel with an equal commitment and question candidates about their views on the subject? Do we not want a Town Counsel who deeply committed to genuine freedom of information and transparency in government?
THOSE WHO DO NOT LEARN FROM THE PAST . . .

Those who do not learn from the mistakes of the past, it is said, are condemned to repeat them. It is increasingly obvious that there have been some pretty serious mistakes in the way the Town of Duxbury has handled matters concerning the North Hill golf course to the point where, in yet another article in this weeks Clipper, parties on both sides of the suit talking about a possible settlement in excess, possibly even well in excess, of a million dollars and it looks like Duxburys taxpayers may very well be on the hook for some substantial part of the total cost of Duxburys liabilities in the suit, as well. Needless to say, but for problems related to the North Hill lawsuit, there would have been no need for this Committee in the first place, it would not have been created, and we would not be having this discussion. So while it certainly is not the business of this Committee to try to dig deeply into the still ongoing Johnson Golf Management vs. Duxbury et al lawsuit, there is no question that it is also an intimate

part of a process to learn from the mistakes made with the North Hill case and to ensure that they are not repeated. To that end, it may at least be useful if members of this Committee familiarize themselves with the facts of the case and what, apparently, went wrong with it. It might also be useful, at some point, for us to set aside some time to talk about what lessons we ought to learn from that experience and what we may be able to do, in offering advice to the Board of Selectmen on the selection of a new Town Counsel, to see to it that the mistakes of the (unfortunately rather recent) past are not repeated in the future. All or at least nearly all of the documents related to the case are now readily available online as PDF files on Scribd in a collection titled North Hill Lawsuit Documents for anyone who would like to examine them. They are carefully re-named so that the name of each file begins with the date (in YYYYMMDD format) most reasonable associated with each document. That makes it at least relatively easy to understand the case as it developed over time.
COUNSELOR OR CONSIGLIERE?

As an admittedly attention-getting (and setting) device, we might also ask whether what Duxbury wants in a new Town Council is a knowledgeable, capable, competent, honest, straightforward and hopefully even a bit wise counselor who will guide us to fully uphold not only the letter but also the spirit of the law or, instead, a consigliere who will simply facilitate whatever may be the desired end in any given situation in a manner sufficiently well legally informed and artfully skilled so as not to violate the letter of the law and thereby, hopefully, to keep us out of trouble.
S O M E A D D I T I O N A L P O T E N T I A L L Y U S E F U L R E S O U R C E S W I T H A C T I V E L I N KS

A good number of links to various sources are already built into the text of this memorandum, above. Here are some other resources, with active links, that may be helpful to the deliberations and work of this Committee: The City Solicitors and Town Counsel Association (The Bar Association of Massachusetts Municipal Attorneys). This site has a great deal of information that is may be, in various ways, useful to this Committee, including a Member Search page with access to listings for all members with contact information and also a very handy City/Town Listing page sorted alphabetically with information about what attorney (or firm) currently represents each municipality in the Commonwealth of Massachusetts as its City or Town Counsel. Massachusetts Laws. The official page of the Great and General Court of the Commonwealth of Massachusetts with comprehensive access (and search capability) to all the Laws of the Commonwealth. The Massachusetts Bar Association. The official page of the Massachusetts Bar Association with extensive resources including directories of attorneys, information about legal practice and law in the Commonwealth of Massachusetts, and much more. A Guide to the Massachusetts Public Record Law. A PDF file of the Guide to the Massachusetts Public Record Law prepared and made available by the office of the Massachusetts Secretary of State.

Open Meeting Law Guide. A web page with information about and a link to a PDF copy of the Massachusetts Attorney Generals Open Meeting Law Guide. The Massachusetts Chapter 30b Manual. A PDF file of the MGL 30b Manual concerning the Legal Requirements, Recommended Practices, and Sources of Advice for Procuring Supplies, Services, and Real Property by municipalities in the Commonwealth of Massachusetts prepared by the Massachusetts Office of the Inspector General. The Brookline Office of Town Counsel. The very interesting, informative, and well-run site of the Office of Town Counsel for the Town of Brookline. It sets a very good example that may be a source of useful ideas that might be useful for Duxbury as well. Brookline is of course a much larger and more urban Town than Duxbury is, but at least some aspects of their approach may be worth considering as good options for Duxbury to consider, as well.