MEMORANDUM TO: FROM: SUBJECT: DATE: CC: DUXBURY BOARD OF SELECTMEN WILLIAM F.

ZACHMANN PROBLEMS WITH DUXBURY TOWN COUNSEL SEARCH COMMITTEE DECEMBER 17, 2012 DUXBURY TOWN MANAGER, DUXBURY TOWN CLERK

A meeting of what was purportedly the Duxbury Town Counsel Search Committee (DTCSC) was called, posted for, and held at 7:00 PM on December 11, 2012 at the Duxbury Senior Center, primarily to consider two complaints of alleged violations of the Massachusetts Open Meeting Law by the DTCSC. The DTCSC, however, was disbanded by action of the Chairman of the Duxbury Board of Selectmen (BOS) on November 19, 2012. The following is an excerpt from the official, approved, posted minutes of that meeting of the BOS: TOWN COUNSEL SEARCH COMMITTEE UPDATE: Marty Desmery, Chair Mr. Desmery was present along with several of the other members of the Town Counsel Search Committee. Mr. Desmery gave an overview of the work that the Committee had done. He mentioned that thirteen law firms had submitted applications. The Committee discussed the applications in public meetings and selected seven applicants for interviews. The Committee unanimously voted to recommend the following applicants to the Board of Selectmen: Barbara Saint Andre of Petrini & Associates, PC of Framingham Lisa Mead of Blatman, Bobrowski & Mead of Concord, Millis and Newburyport Art Kreiger of Anderson & Kreiger, LLP of Cambridge Mr. Desmery mentioned that the Committee did ask him to mention that there were some economic differences between the firms. He noted that Anderson & Kreiger did have the highest hourly rate. When they interviewed Atty. Kreiger he did indicate that the hourly rate was negotiable and that they would be willing to propose a flat fee arrangement. The other two firms did propose flat fee arrangements so it was suggested the Selectmen request this of Anderson & Kreiger for comparison purposes. On behalf of the Board, Mr. Flynn thanked all the members of the Town Counsel Search Committee for their work. He indicated that the Board would be conducting its own interviews with the firms shortly, and as the Committees task has been completed he disbanded the Town Counsel Search Committee. Given that, the meeting held on December 11, 2012 clearly was improperly called, posted, and held. It was a meeting of a committee that no longer existed; a committee that had in fact been disbanded nearly a month earlier. So whoever called or posted that meeting did so improperly and anyone who advised that this meeting be called, posted, and held, offered some very dubious legal advice. Unfortunately, it seems that at least one source of such dubious advice, based upon what he said himself during that meeting held December 11, 2012 was acting Town Counsel Arthur P. Kreiger.

In talking about the timeliness of the second compliant, concerning emails, Mr. Kreiger noted that all emails 30 days prior to the date of the second complaint are not relevant, since a complaint must be filed within 30 days. The second complaint is dated December 7, 2012, so any emails prior to November 7, 2012 are irrelevant. The only email referenced by the complaint that was sent after that date was sent on December 5, 2012. Mr. Kreiger then said (at approximately 42:22 in the recording of that meeting): So the next question is, were these emails, that did go to everybody, were those deliberation on something within your jurisdiction? Its a funny kind of issue because the only thing you were deliberating . . . You had made your recommendations to the Selectmen. You had been actually been informally discharged, although not formally dissolved, which is why you are still here at the meeting tonight. Well, I made the, I made the determination early on that you were, that the committee was still alive enough to meet because the AG said Well, if the committee is dissolved, then the Selectmen are going to have to deal with it. But you werent actually dissolved. Its a step you may want the Selectmen to take at some point. Contradicting the clear fact that the DTCSC was in fact disbanded on November 19, 2012 in order to spare the Duxbury Board of Selectmen the inconvenient task of dealing with what were in fact questionable allegations of violations of the Open Meeting law by concocting some dubious and legally baseless theory that the committee was still alive enough to meet is an example of precisely the sort of dubious legal theories and dodgy advice that got the Town of Duxbury into serious trouble over of the gross mismanagement of the North Hill contract award (and our former town counsel fired). It is dismaying to encounter such a clear example of the repetition of such practice from our current acting counsel whose firm is also one of the three finalists for the position. Equally dubious, unfortunately, is that Mr. Kreiger, should have, on the evening of December 11, 2012, not only acted as legal advisor to the Duxbury Town Counsel Search Committee, but de facto pretty much ran the meeting, as will be plainly evident to anyone who listens to the recording of that meeting. How can it possibly be appropriate for one of the three finalists for the position of permanent town counsel properly to do that? How could Mr. Kreiger not have had sufficiently sound judgment to recuse himself from anything to do with the DTCSC? Further, Mr. Keigers erroneous resuscitation of the DTCSC, in clear contradiction to the plain words of the minutes of the November 19, 2012 meeting of the BOS (minutes that were reviewed and approved by all three selectmen prior to being submitted to the official record in the office of the town clerk last week), also resulted in the mistaken claim that an email sent on December 5, 2012 could possibly involve an OML issue since, in fact, the DTCSC no longer existed as of that date and could not therefore possibly deliberate anything at all. The Duxbury Board of Selectmen should step up to their responsibility and deal directly with the OML complaints filed against the DTCSC not rely on a dubious legal theory, contrary to fact, that disbanding the DTCSC on November 19, 2012 did not amount to disbanding the DTCSC on that day. It clearly did. The BOS also needs to decide, in selecting a new town counsel, whether it wants to appoint someone who will give competent, informed, legal advice at all times or someone who is willing to continue the practice of providing dubious legal theories to justify whatever the Board of Selectmen and/or town management happen to want to do or not to do and any particular point.