| Wednesday, 18 January 2012 15:50
Editor’s Note: Last week, when Town Manager Richard MacDonald was asked his reaction to charges he overstepped his responsibilities as town manager, he offered a one line response, “I go by the Town Manager Act of the Legislature.” Over the weekend, he wrote a fuller explanation, saying it was his duty to the people of Duxbury. Considering the seriousness of the accusations, the Clipper has included MacDonald’s response in full.
Last week’s Board of Selectmen’s meeting became the forum for a series of irresponsible and inaccurate allegations regarding a case that is currently in litigation. Litigation should properly be discussed in Executive Session, but because these allegations were irresponsibly discussed in Open Session as “old business,” they deserve a public response so that confidence is not undermined in the way that litigation is conducted by the Town.
First, it was alleged that I requested Opinions of Town Counsel without the prior approval of the Selectmen. All three of Duxbury’s Town Managers have requested and received Opinions from Town Counsel, as the Town Manager has deemed necessary and appropriate. The power to supervise litigation is expressly granted by the Legislature to the Town Manager through special legislation creating this position. Since I have served as Town Manager, I have consistently requested and received Opinions from Town Counsel, as have my two predecessors.
Second, it was alleged that I erroneously delegated the defense of a lawsuit that unjustly charged a number of Town Officials with acts of civil conspiracy and violations of law to Town Counsel rather than a “free” lawyer available to the Town under its insurance coverage. This allegation is false. The overwhelming amount of the legal work at issue here involved defending the Town against a request for Injunctive Relief. Legal services relating to Injunctive Relief are not covered by the Town’s insurance policy. Additionally, under the Town Manager Act, my responsibility to supervise litigation involves many determinations of when delegation of work to insurance counsel is appropriate. I am required to balance a variety of factors, including defense of the Town’s elected and appointed officials, along with the public interest, in determining whether Town Counsel should defend the Town or whether insurance counsel should participate in the Town’s defense and the appropriate level of participation by each. I am happy to observe that the Town ultimately prevailed in the application for Injunctive Relief, allowing the Town to assert control over its property and insuring that an entity that was legally qualified to manage the Town’s property was awarded a contract.
Third, it was alleged that the Town has “wasted money” in its defense of litigation brought against it. The Town has enjoyed consistent success in its defense of monetary claims brought against it, along with other litigation. Its costs are consistent with similar communities. Under the direction of the Board of Selectmen and my supervision as Town Manager, the Town has produced outstanding results in litigation.
Finally, it should be observed that criticism in public sessions of issues relating to the Town’s conduct of litigation undermines the legal position of the Town and is not in the public interest. This is why the law expressly gives municipalities the right to enter into Executive Session to discuss strategy. It is unfortunate that an individual would choose to imperil the Town’s ability to successfully win a case filed against it by criticizing the Town’s method of defending itself.