Several Duxbury Town officials stood by silently in 2009 and 2010 while former Town Counsel Robert Troy made what they considered to be inaccurate statements to a Superior Court judge and at a Board of Selectmen’s meeting. The town is now suing Troy for malpractice, partly because it alleges those statements have compromised the town’s position in a civil suit Johnson Golf Management filed against it in 2008. In a January 27, 2009 appearance before Middlesex Superior Court Judge Herman Smith, which was attended by both Town Manager Richard MacDonald and Recreation Director Gordon Cushing, Troy stated in reference to the drafting of the 2008 North Hill Golf Course Request for Proposal (RFP) “… or a comparable business enterprise. The town hired a consultant to do this because they wanted to open it up to people other than people running a municipal golf course.”

Later, on Oct. 4, 2010 at a Board of Selectmen’s hearing, attended by then-Selectmen Shawn Dahlen, Betsy Sullivan and Chris Donato, as well as MacDonald, Cushing and Troy, Troy again asserted a statement that several town officials say they knew to be untrue.

Following a question posed by then-Selectman Chris Donato to both Troy and MacDonald, Troy claimed that “Town Hall had nothing to do with the entire procurement document,” referring to the North Hill Golf Course contract and that a consultant in Plymouth “designed the RFP completely. There was no input here at Town Hall…” Troy’s claim that town officials had no input went uncorrected at that public meeting.

It was not until nine days later, on Oct. 13, 2010, that Cushing, who coordinated the drafting of the RFP at MacDonald’s direction, acknowledged that many in town government had “provided input” and that Pamela Hagler, procurement officer for the Town of Plymouth and the one Troy referred to as the consultant, had not responded to inquiries regarding the RFP. Cushing’s correction of Troy’s misstatement took the form of a memo sent to town officials and Troy.

When asked, Lenny Kesten, the town’s lead attorney in the Johnson Golf suit, confirmed no local official ever publically corrected the record.

“No correction was made in a Board of Selectmen’s meeting or in court,” said Kesten.

In Troy’s June 28 deposition taken as part of the Johnson Golf lawsuit, Troy was asked by Johnson Golf Management attorney Stephen Follansbee, who read from a transcript of that 2010 selectmen’s meeting, why Troy claimed no one at Town Hall had anything to do with drafting the RFP:

Follansbee: “[T]his statement is a little more detailed and in it you say that, on the top of Page 65, ‘The honest answer is town hall had nothing to do with the entire procurement document.’ That isn’t true, is it?” (sic)

Troy: “In my opinion it is correct. That’s a correct statement. There is not – what I was referring to, town hall, town hall is a building.” (sic)

An exhibit of the 2008 draft of that RFP, largely designed by Cushing with input from other town officials, was introduced at Troy’s deposition. That draft had handwritten notes throughout its 74 pages. In his sworn testimony, Troy confirmed those were his notes.

Additionally, he confirmed it was his suggestion that the term “comparable business enterprise” be inserted into the RFP and that it was not done at the suggestion of a consultant or Cushing or anyone else.

Transcripts of the deposition were provided to the Clipper by attorneys representing both the town and Johnson Golf. 

When asked about those statements and Duxbury town officials’ silence when Troy made them, Robert Gill, a partner in Peabody and Arnold, LLC and the attorney representing Troy in the suit said he was reluctant to comment.

“The records indicate they were there, they heard the statements, and they didn’t correct them,” said Gill.

In a previous statement to the Clipper regarding a March 2012 motion filed in Middlesex Superior Court by Johnson Golf’s attorney Follansbee claiming Troy “was not being truthful,” Troy denied he intentionally made any false statements.

“If I said it, I felt it to be true at the time,” Troy said in that April 18 interview with the Duxbury Clipper.

While Troy was fired as town counsel by the Board of Selectmen on May 29, questions linger as to why no one objected at the time to what they felt to be inaccurate statements.

Asked why he didn’t correct Troy’s statements at either the January 2009 court appearance or at the October 2010 Board of Selectmen’s meeting, MacDonald said he is no lawyer and didn’t know what the protocol was for speaking in court.

“The direction taken by this office was at the lead of town counsel,” said MacDonald, referring to Troy. “I deferred to his judgment and expertise in legal matters. He’d been town counsel for 24 years.”

Cushing, who was also present when Troy made each statement and said he was uncomfortable both times, said he eventually did correct Troy in the memo he sent to town officials and Troy on Oct. 13, 2010.

“It wasn’t my place to correct town counsel,” said Cushing. “I did correct it nine days later in a memo. I felt it wasn’t my place, but I corrected it.”

Cushing’s memo confirms town officials’ input in drafting the RFP. Under item eight, he wrote, “After gathering comments the draft was reviewed by a woman who worked for the Town of Plymouth. I sent it to her for comments and possible changes and corrections, and received none back…” Twenty-four minutes later, Cushing sent a second email to the same group, having revised item eight to read, “After gathering comments the draft was reviewed by Pamela Hagler procurement officer for the Town of Plymouth…”

  According to a transcript of her own sworn deposition in the Johnson Golf case, Hagler stated that no one had ever sent her a draft of the RFP and that she had no knowledge of it.

Shawn Dahlen, who was chair of the Board of Selectmen during the October 2010 meeting and who supported Troy through much of the board’s discussions to keep Troy on as town counsel before he eventually voted to fire Troy, said this isn’t a conspiracy and he doesn’t believe anyone intended to be untruthful.

“Number one, I wasn’t here (on the board) when the RFP was done, so how would I know?” said Dahlen. “The second point is when you’re a town counsel and when you’re a volunteer selectman, you rely on town counsel to give you proper legal counsel. He was saying this in a defensive manner without preparation. To this day, I believe half the things that happened were due to memory.”

Former Selectman Donato, who was considered to be a challenging presence on the board to the point where he claims he was denied his turn as chair of the board by his then-colleagues Dahlen and Betsy Sullivan, said he asked about the RFP because he wanted to know who drafted it. Donato, a U.S. Attorney, said again and again he was denied access as both a citizen and selectman to documents pertaining to the Johnson Golf Management suit and other lawsuits.

“I was asking who had drafted the RFP because in the second RFP, someone had removed the word ‘flat,’ ” said Donato. “ …It seems to me that when something like this happens, it’s evidence of a conspiracy, maybe, maybe not. If we got to court, people are asked that same question and it looks like they were trying to cover it up and there’s no way around it.”

Asked why he didn’t correct the record at a follow-up selectmen’s meeting, Donato said, “Every time I tried to talk about the case, I was shut up, shut down and cut off from my ability to set the record straight – even if it was information that was public and should have been known to the town.”

Betsy Sullivan, who was a selectman at the time and present for the October 2010 meeting, said the issue is more nuanced than what appears in the transcript. She said she didn’t correct Troy’s statement that no one at town hall had anything to do with drafting the RFP because maintaining the flow of the meeting was more important.

“The tenor of many of those meetings, I was probably chair at that point, was to try to keep the meetings civil and moving and get the work in front of us done,” said Sullivan, who was not chair at that meeting. That position belonged to Dahlen. “There were certain occasions Mr. Donato brought that up. Maintaining civility was the challenge of the day. It was not a civil conversation, contributing to it would not have accomplished anything.”

Neither a video of that meeting nor the transcript indicate the exchange between Donato and Troy was uncivil.

The lawsuit stems from the town’s October 2008 request for proposal seeking bids on a five-year contract for management of the North Hill Golf Course and Country Club. Johnson Golf Management, Inc. alleges that the town and the North Hill Advisory Committee, which included Recreation Director Cushing, conspired to change the language in the RFP from previous town RFPs by including the phrase, “comparable business enterprise.”

Additionally, when the first RFP was determined by town officials not to be compliant, according to sworn affidavit given by Town Manager MacDonald, a second RFP was put out to bid in January 2009. That second RFP was slightly altered. Language in the first bid included “flat yearly payment to the town” but was changed in the second bid to delete the word “flat.” This one word omission, Johnson charges, altered the bidding process to make it more favorable to Calm Golf, LLC, which eventually was granted the contract. Johnson alleges without the change, Calm Golf would have been disqualified from the bid because it offered a percentage return to the town in its first bid. North Hill Golf Course is currently managed by Pilgrim Golf, LLC.

Douglas Johnson, the owner of Johnson Golf, Inc., is the principal in the Johnson Golf Management, which operated North Hill for ten years and has been involved in six lawsuits with other municipalities.

The RFP process is governed by Massachusetts State Law under Chapter 30B, the “Uniform Procurement Act.” Under the law, a person who “causes or conspires with another to cause a contract to be solicited or awarded in violation of a provision of this chapter” may be fined up to $2,000 per violation and double the amount of damages sustained by the municipality.

Troy’s deposition is expected to continue Aug. 7. The civil suit is currently scheduled to go to trial Oct. 1.