A discussion this week on how the Duxbury Board of Selectmen oversees and directs the Town Manager revealed that selectmen interpret the town’s bylaws and Town Manager Act differently.
Listed on Monday’s agenda as a “discussion of legal services,” the topic was the result of a debate among selectmen two weeks ago regarding how and when the town manager is allowed to hire Town Counsel Robert Troy, and why Troy was used during a recent lawsuit against Duxbury instead of an attorney provided by the town’s insurance company.
At the Jan. 9 meeting, Selectmen Christopher Donato pushed to have the topic of hiring town counsel on a future agenda, but began discussing
details of current litigation against the town. Chairman Shawn Dahlen and the Selectmen then voted to adjourn the meeting. At the time, Dahlen said he felt Donato was violating the Open Meeting law by talking about a topic in depth that was not on the agenda.
Dahlen opened this week’s discussion by calling for a “professional and courteous” dialogue and asked board members not to discuss actual litigation, but to use hypothetical situations. He warned that he would close the meeting if they or audience participants moved too far off the topic.
For Donato, the issue centered on whether the board of selectmen were forgoing their responsibilities when allowing Town Manager Richard MacDonald to consult town counsel before seeking the board’s permission before each interaction and deciding when to hire town counsel. He felt that the selectmen were failing the people they served by not monitoring more closely when the town manager engaged the town’s attorney.
“It’s my understanding, having read the bylaws and the Town Manager Act, that the Board of Selectmen is waiving our oversight of town counsel and allowing the town manager to manage this on our behalf,” said Donato. “We are waiving our authority…and we are failing to represent the people who elected us.”
Donato said he embraced the term “literalist” given to him by his colleague Flynn, meaning he interpreted the town’s bylaw’s literally when he read that the board of selectmen were the only decision makers when requesting use of town counsel. Section 3.1.5 of the town’s bylaws states: “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.” Donato said he believed that “town officials” included the town manager.
Flynn told Donato that the Town Manager Act of 1987 supersedes the town’s bylaws.
“The Town Manager Act trumps the bylaws,” said Flynn, who chaired the committee that crafted the act.
Flynn believes that the town manager acts “as an extension” of the board of selectmen. He said, “it’s not reality” to have the town manager seek selectmen’s approval to engage town counsel every time it is necessary.
Both Flynn and Dahlen disagreed with Donato about his interpretations of the laws.
Dahlen said he felt the town manager and the town attorney communicated with selectmen clearly and frequently about legal issues involving the town. He said that all selectmen, the town manager and his assistant received at least 8-10 e-mails a week from the town counsel in addition to the quarterly updates that Troy provides the board in person during closed-door sessions.
“I feel fully informed and fully aware of what’s happening,” said Dahlen. “I only feel we are failing to exercise our authority if we choose to turn a blind eye.”
Dahlen said he contacted six past selectmen to see if they had ever felt unaware of the actions of the town counsel and they all told him they believed they had been notified completely.
“There isn’t any more I want to know about the town’s legal affairs that I don’t already know,” said Dahlen. “I haven’t shirked my responsibilities. You have had equal opportunities, as Ted and I have had. If you want to bring in town counsel because you have a concern, you should be able to. The key is communication.”
Flynn felt that there were sections of the town’s bylaws that conflicted with the town manager act and that a committee should be appointed to make sure the two laws worked in concert with each other.
“I don’t think the bylaws are ambiguous,” he said. “I think they are blatant in what they say. I think we are passing on our responsibilities. I think we should follow what the bylaws say.”
Another concern expressed by Donato was that without the proper oversight from selectmen, the town may be paying too much for legal advice from town counsel.
“We don’t have control of the bills,” he said.
Donato said that when he asked to see Troy’s invoices pertaining to the lawsuit brought against the town by Doug Johnson, the previous manager of North Hill, his request was denied due to attorney-client privilege. He was told to make a public records request for them.
“Attorney-client privilege?” Donato asked. “But we’re the client.” Donato said he can’t serve the public well if he doesn’t have the information to form an educated opinion.
Dahlen said that the overall attorney’s fees were approved as part of the town’s budget during Town Meeting, so they were public knowledge. Donato still felt selectmen could do better.
“We have a duty to create a record of every decision we make,” Donato said.
Dahlen agreed that selectmen need to review their executive session minutes and will release the ones that no longer needed to remain sealed. He said he plans to place this on a future agenda item for a closed-door session.
Acting as peacemaker, Flynn called for the board to move past its disagreement on this issue and work together for the town: “Let’s get back together as selectmen and get back to the town’s business.”