An assistant U.S. Attorney may be facing a complaint of his own.
In response to the Jan. 9 Duxbury Board of Selectmen’s meeting when Selectman Chris Donato directed the hearing to items not posted on the meeting’s agenda, Selectman Ted Flynn is weighing a complaint alleging Donato violated Massachusetts’ Open Meeting Law.
“I’m considering it,” said Flynn. “I guess I don’t know if it was (a violation).”
The Massachusetts Attorney General’s Division of Open Government states on its Web site that anyone wishing to file a complaint alleging a violation of the Open Meeting Law by a local body must do so with the town clerk within 30 days of the alleged violation. Assistant Town Clerk Susan Kelley said that as of press time no one had filed a complaint.
Flynn’s concerns are the result of an extended exchange between selectmen at last week’s hearing. In an open meeting, Donato asked that an item be placed on a future agenda regarding Town Manager Richard MacDonald’s retaining Town Counsel Robert Troy in a lawsuit involving the town. The suit had been brought by Doug Johnson, the previous manager of North Hill Country Club. According to Donato, the town’s insurance policy allows for free legal representation, and the Board of Selectmen has the authority to employ counsel under the town’s bylaws. Chairman of the Board of Selectmen Shawn Dahlen asked that Donato put the request in writing to be put on a future agenda and not discuss an item that wasn’t “typed on the open meeting agenda.” Dahlen also warned Donato not to discuss ongoing litigation that might compromise the town’s position in a lawsuit. After a heated exchange that involved MacDonald walking off the dais, the meeting was abruptly adjourned.
Donato said he was not in violation of the Open Meeting Law and didn’t discuss ongoing litigation. He said his only intention was to make public the fact that he had requested information, specifically executive session minutes from Dec. 2008 through March 2009, from Richard MacDonald, Robert Troy and the Board of Selectmen – information he claimed was denied. According to Donato, he was told to submit a Freedom of Information Act request. Dissatisfied, he brought his request to the selectmen’s open meeting.
“I was not trying to discuss litigation, I was trying to find out who authorized Bob Troy when the insurance company can represent this town at no added expense,” said Donato in an interview from his office in Boston, where he’s the Chief Financial Litigator in the U.S. Attorney’s office.
“What’s happening is the Board of Selectmen is being circumvented. As a result, we have no information on costs. There’s a battle behind the scenes as to what the role is of the Board of Selectmen.”
Donato said he had made a request to the town approximately a month ago seeking information regarding Troy’s expenses.
“We got a huge legal bill,” said Donato, “but I have no idea what the legal bill actually is.”
According to Donato’s analysis of the town bylaws, specifically Sections 3.1.5. and 4.7., only the selectmen and not the town manager is authorized to employ counsel and special counsel. Section 3.1.5 states in part, “…No town department or official shall request the services of Town Counsel, as such, without first obtaining the consent and approval of the Board of Selectmen.”
Selectman Ted Flynn said while Donato may be correct in his precise interpretation of the bylaws, he doesn’t understand the intent of them.
“One of the problems is a literal reading of that,” said Flynn. “Mr. Donato is correct in that, but if you look at the Town Manager Act, (MacDonald) works as an extension of the board of selectmen. Him directing town counsel is not inappropriate.”
Flynn said he knows the intent of the committee that drafted Chapter 353, An Act Providing for a Town Manager in the Town of Duxbury, because he served as chairman. It’s his belief that the Town Manager Act supersedes town bylaws because it was passed by the Massachusetts Legislature and provides specificity as to duties. He cited Section 3C.(2) of the Act stating it allows the town manager to direct the operations of the town under the supervision of the Board of Selectmen.
“The literal interpretation of Mr. Donato is absolutely correct,” said Flynn. “Is that the way this government has worked all along? No… The Town Manager is our functionary. Do we give him the latitude to direct town counsel? Absolutely.”
Flynn also pointed out that MacDonald acted in the best interest of Duxbury when he sought to employ town counsel in addition to the legal representation paid for by the insurance company.
“I think (the insurance) counsel is beholden to the insurance company,” said Flynn, noting both town counsel and the insurance company’s lawyer are representing the town in the ongoing suit.
When MacDonald was asked for his response regarding accusations that he’s acting beyond his duties as town manager, he responded, “I go by the Town Meeting Acts of the Legislature.”
Reached on vacation in Florida, Dahlen said he always strives for fairness and good government in his capacity as chairman. He also said he likes Donato personally and doesn’t intend to pursue charges of his violating Open Meeting Law.
“I don’t think Chris would say I didn’t put anything on the agenda,” said Dahlen. “My philosophy is I’ll put anything on the agenda. I would never accuse anyone of anything, but it’s pretty straight forward that you can only discuss items on the agenda.”
Accusations that town counsel ignored Donato are inaccurate said Dahlen. According to Dahlen, Troy doesn’t do anything without e-mailing all three selectmen and the town manager first, and that Troy explained that the only people with access to sealed executive minutes are those included in the minutes. Dahlen said his greater concern is that after the Jan. 9 meeting, people might now believe his board, MacDonald or other town officials are engaged in deceiving the public, a charge he claims isn’t true.
Said Dahlen, “I don’t ever want the residents of Duxbury to think there’s anything underhanded or that we can’t talk (openly).”