Selectmen issuing RFP for Legal Services

by beth on March 10, 2021

The Board of Selectmen will issue a Request for Proposals for the Town’s Legal Services. The Board has repeatedly stressed that the move doesn’t reflect dissatisfaction with current Town Counsel. Instead, it’s out of fiduciary duty for the Town.

Throughout their discussions this winter, selectmen noted that the process could end in reappointing current Town Counsel Aldo Cipriano. However, the board showed marked interest in exploring different options.

Selectman Chelsea Malinowski said she was interested in pursuing a different strategy for hiring counsel. Referencing earlier comments of other selectmen she said she was interested in “mitigating risk” by hiring a firm with more than one attorney, or a network of attorneys. Selectman Lisa Braccio said that a firm with multiple attorneys could offer “one stop shopping per se to benefit the taxpayers more”. She was surprised that Chair Marty Healey’s draft RFP would allow for the possibility of a one man firm like Cipriano’s. 

Healey said it wasn’t just about seeking a different kind of firm. He shared that he discovered that a lot of Towns fall into treating Town Counsel as a lifetime appointment. He called reevaluating at least every 5 years “good business sense”. Healey opined that Town governments should be “testing the market” to make sure they get the best value and services for the municipality.

Selectman Sam Stivers followed that he was also interested in the possibility of individual practitioners with a network of other individuals “in a more formal way than we’ve seen historically”.  That’s something he said he’d seen in his “day job”.

Stivers has often referred to the regular interviewing and hiring of legal services as part of his work. The need to reevaluate legal services is a measure Stivers had advocated since long before he joined the Board.

In 2014, as a member of Advisory, Stivers questioned the Town’s process. Minutes from a December 2014 meeting show he “wondered about the management/coordination of these services and the possible opportunity for more cost effective sourcing of these services.”

In 2017, a Citizen’s Petition Article sought to formalize a process for interviewing Town Counsel every 3 years. The Article came forward in the wake of incidents related to Park Central in which many opponents of the project criticized Cipriano’s actions on behalf of the ZBA and his advice to selectmen. (Some of that criticism was in the form of anonymous comments on this blog.)

Stivers spoke at the 2017 Annual Town Meeting in support of the Article. As an Advisory member he shared that the Town Administrator’s office looked into other Town’s practices for Advisory. They learned that many other Towns do bid out and spend less. And he said that it had been at least 15-20 years since the Town did it. And he said that for his business he shops around for legal advice a lot.

The Board of Selectmen (and majority of Advisory) opposed the Article. Then-Selectmen Paul Cimino railed against a required annual evaluation and public comment process as requiring Town Counsel to go through “a dog and pony show”. He and others indicated the Article was motivated by hostility and towards Cipriano. The Article failed. (As did another 2019 Article on Town Counsel standards that included allowing selectmen to replace Town Counsel “at their pleasure”.)

Following last week’s discussion, Cimino called in to the meeting to comment. He said he was gratified that members clarified their reasons for issuing the RFP as not being a slight against Cipriano.

Following his election to the Board in May 2019, Stivers proposed going out to bid for FY20 Legal Services. With annual reappointments due at the end of June, he proposed only re-upping contracts for 90 days to allow for the RFP process. Then-Selectman Dan Kolenda opposed, defending Cipriano as providing great service at a great price. Selectman Brian Shea said that with critical cases in process he didn’t believe it was the time to change course.

Healey and Braccio both supported the concept of a review but said the timing was wrong. Braccio followed it was something they should look at during the year.

In May 2020 Stivers re-raised the issue and the same proposed process. He noted it had been about ten years since the Town looked at proposals for legal services. Kolenda objected to singling Cipriano out vs all of the Town’s other contracted services. Stivers rebutted that the Town did regularly reevaluate other contracted services. Healey called it a discussion worth having. In a subsequent meeting, Shea argued against rushing through an RFP for the FY21 appointments due in June. The Board voted to reappoint legal contracts for another year.

Over the summer, the Board met to discuss their FY21 goals. Among Stivers’ requested goals that were included was “Review contracted services and explore re‐bidding.” To make sure that the board kept on top of their goals this year, selectmen asked to have the goal list (along with indications of progress), included in each of their regular meeting packets.

This winter, when they took up the goal topic, selectmen agreed to move forward on issuing an RFP for Legal Services. Last week, the group discussed a final draft of the RFP.

{ 7 comments… read them below or add one }

1 Open Letter to BOS March 19, 2021 at 11:20 AM

Do the taxpayers paying for these services have a say? If so, when? How about a show of hands on Town Meeting floor? Non binding and informal, but would provide a “sense of meeting.” Agree with Ms. Malinowski. It is time for change. The town’s needs have changed over time and are becoming more complex, calling for balanced and multiple professional skill sets.

Taxpayers should have a say. The current legal arrangement is from a bygone era. This town counsel is not doing a good job in the opinion of many, and his conflicted, overreaching, and controversial legal opinions and those of his cronies speak for themselves. There are no more appointments for life. A mere handful of nonspecific legal reports over decades represents abject failures in transparency, accountability, and good common sense outcomes. This town counsel is fighting against the health and safety of its own residents and BOS is allowing this, through him and additional counsel of his choosing. This is bad for the town and lacks common sense.

This RFP process has to be real, not a show, resulting in real change, improvements in performance, transparency and accountability. The days of the one man band who really reports to no one are over. Taxpayers want a real change in services, and that means not defaulting to the current providers who have undermined the voters and taxpayers of this town. Time for real policies and improvements in procurement of professional services.

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2 Time for Change March 20, 2021 at 5:09 PM

Yes, it’s definitely time for change.

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3 Timothe Litt March 20, 2021 at 7:39 PM

It is definitely time for a change – but not necessarily the one indicated.

Mr. Cipriano has served the Town for many years. Unlike the anonymous posters, he has put his name on every opinion that I’ve seen.

This blog is filled with comments from anonymous posters who hurl vitriol and criticism at him and at many other citizens who volunteer their time. This is counter-productive on many levels.

Anonymous posts deny the subjects the opportunity to contact the poster in order to have a constructive conversation. And the lack of response seems to drive anger, in an escalating and viscous circle.

Anonymous posts frequently cast aspersions on peoples’ character and motivations. This is very rarely, if ever, deserved. It seems that it’s easy to express anger, disappointment, and hostility from behind the shield of anonymity, which also serves as an amplifier.

Many people have told me that they stopped reading the comments – and often the articles – because of the tone of these posts. Thus, the criticism and underlying anger doesn’t reach it’s intended target(s).

And others have declined to serve the Town, or resigned from service as a result of the disrespect they (and in some cases, their families) have been shown. This is a considerable loss to the Town.

I’ve interacted with many Town officials (employees and citizen volunteers) – sometimes in public, mostly behind the scenes or in meetings that few others attend. I’ve found that they all have the best interests of the Town in mind, and do their best to serve us.

Like all of us, they do make mistakes from time to time. And I don’t always agree with what they decide.

But I stand behind my critiques (which are, I hope, constructive) as well as my praise. They’re always signed. People who disagree know how to find me.

If you are thinking about posting anonymously, have the courage of your convictions and post under your name. Or at least, post civilly, in calm language, when you’re not angry. Respect the opinions of those whose opinions differ from yours. And respect the people who volunteer to serve you – and all the other residents of the Town – even when you disagree. Disclose any conflict of interests – as volunteers must do by statute, Instead of hiding, think about attending a public meeting, or having a telephone conversation. Finally, if you really think you can do a better job – volunteer and/or run for office.

Those are the changes that are definitely needed, Civil discourse. Respect. Taking personal responsibility for what you say. And as my mother said, “you catch more flies with honey.”

I’ve had a few interactions with Mr. Cipriano. They’ve all been professional and helpful. But the most important work happens in executive session with the Town officials, boards, commissions, and committees as well as in conferences and court. Those who are present are the ones to judge how well he has performed, and whether a different structure would be better. It’s not a popularity contest nor a call that can be made from the sidelines.

I did read the RFP – and was concerned that it seemed skewed towards large practices. It does not seem to preordain the status-quo. I agree with Mr. Cimino’s public comment that current counsel may not be perfect, but deserves a fair shot.

While large practices do have advantages, the trade-off is against long-term relationships, knowledge of, and (perhaps) residency in the town. Both the Town and current counsels have invested considerable time and money in the first two. As I’ve found elsewhere, replacing them and rebuilding the knowledge and relationships would not be inexpensive.

I’m sure that the Board of Selectmen will come to a reasonable decision after consulting all the stakeholders and carefully considering all options.

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4 Jessica Devine March 22, 2021 at 8:05 PM

Tim, thanks for your comments about anonymous commenters. I wholeheartedly agree. I do wish that people had to use their real names on this blog and that there was verification of their identities (as much as is possible in this day and age) to discourage the vitriol and encourage productive discussion. As a soon-to-be former School Committee member, I appreciate your attendance at meetings and involvement and interest in how our town is run.

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5 It's a ridiculous mess March 25, 2021 at 1:11 PM

If you follow the Park Central debacle, you will see what a mess this legal advice has lead us into. It’s a shameful, broken, situation that may never be fully fixed. All on current counsels watch, with his direct active involvement. It’s quite literally a masterclass in how things should NOT be done.

Lastly, if putting your name is to legal opinion you’ve been paid to provide is considered virtuous, expected standards may be lower than even I’d assumed.

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6 Kathy Cook March 22, 2021 at 1:15 PM

Well written Mr. Litt.

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7 Change is Good March 22, 2021 at 9:52 PM

Thank you BOS for issuing the RFP for legal services. To the detractors above, posting anonymously has nothing to do with anything. The bidding out of attorney services is long overdue and should be done on some regular basis. It is standard practice for professional services, including town administrator, in many cities and towns. There is nothing personal about this. It is simply good business practice and the hallmark of any professionally run operation.

It is noteworthy that there are too many cooks in the kitchen who do not pay attention to details or want to acknowledge conflicts of interest, including their own. This includes those with direct financial links to those coming before town boards. How likely are these individuals to vote in favor of a policy that protects the town, but might run contrary to some developers’ interests? One such committee member has written directly on this blog about being “very grateful” to one developer “for all that he has done for charitable organizations that I am associated with . . .” Unbelievable.

There is nothing more disappointing than to read comments like this by committee members who are expected to not have financial links, while at the same time, having financial links to same, whether it be as tenant, abutter, or accepting funds for one’s favorite charity. Good government means no conflicts or appearances of conflicts. Good government means having standard policies and procedures in place. There is nothing critical or personal about this. Disappointed to see the strange twisted logic that takes good standard business practices and makes them a negative.

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