A few weeks ago, the Board of Selectmen voted to appoint Mead, Talerman & Costa, LLC as Southborough’s new Town Counsel. The decision replaces Aldo Cipriano, who has served in that capacity for 20 years. Selectmen also discussed potentially using the firm to replace other special counsel.
Based on the history of one the primary contact for the new firm, some readers who have called for Cipriano’s replacement over his handling of Park Central legal matters may be disappointed with who his replacement is.
However, for those who are more concerned about the bottom line and the ability for Town officials to get timely responses whenever they desire, this may be a welcome change.
The Board’s decision
Selectmen’s decision followed an RFP process that selectmen launched to explore their options. Cipriano and MTC were among four applicants to vie for the opportunity. Based on a number of factors, MTC was the first choice for three of the four selectmen who made the decision. (They were the second choice for Sam Stivers who said he was fine with supporting the choice. Andrew Dennington recused himself from the process.)
Although, the board noted appreciation for Cipriano’s past service, they didn’t favor his proposal. Cipriano ranked 2nd or 3rd choice for each of the selectmen.
Explanations focused on the larger firm’s ability to offer more at a lower cost. That included more timely responses when needed and no-cost services (covered by a flat fee) that Cipriano couldn’t offer as a sole proprietor.*
MTC offered selectmen three fee options. The one they selected was a flat fee of $84,000 per year.
As Jason (Jay) Talerman put it in his presentation, the model stops officials from worrying that picking up the phone to get an answer will blow up up their budget. He said it also allows officials to make decisions based on what’s good for the Town rather than compromising “because their legal budget is running dry”.
Attorney Katherine Feodoroff, the secondary contact at MTC, said the team approach allows a more collaborative relationship. By having attorneys you can treat as in-house attorneys to help “attack things on the front end”, it helps towns avoid problems and litigation.
While MTC’s flat fee doesn’t cover everything, it covers quite a lot. (You can scroll down for a list of covered services.)** There are services outside the listed scope that are specified as charged at $180/hour or direct billed. That includes acting as Labor Counsel.
Selectmen Marty Healey acknowledged that if the Town runs into an issue, they could see a bigger bill. But he forecast saving money. The fee is $8,000 less than the retainer paid to Cipriano in 2020.
Healey and Chelsea Malinowski both also liked the updates on municipal law that MTC provides to its clients at no charge. Malinowski recalled her surprise when Cipriano charged the Town for a legal update that she requested in 2020 related to Covid. (Though she understood why.) Selectmen were also happy with the inclusion of monthly office hours and participation in three meetings/hearings per month.
Chair Lisa Braccio focused on the timeliness of getting opinions. Cipriano’s window remained 7-10 business days. Not only did MTC offer quicker turnaround, but also the option of a swifter, less formal response when needed. She noted that when an opinion was sought, they would ask about the purpose and timing in order to determine what path to take.
One of the attributes that selectmen appreciated about MTC was its wide breadth of experience in municipal law.
In the firm’s application, they listed 20 Massachusetts Towns for which they currently serve as Town Counsel, and two for which they are co-counsel. They also noted that they represent dozens of other municipalities on matters related to “general municipal law, as well as land use, planning and environmental law.”
In Cipriano’s application, he included four former selectmen from recent years as references. One was Paul Cimino, who currently serves as Town Moderator. Prior to selectmen’s decision, Cimino voiced support for keeping Cipriano on as Town Counsel. He opined that replacing current Counsel it should only be based on a compelling reason for a change related to something offered. He said that he personally didn’t see/hear one.
Healey told Cipriano he disagreed about the need for a compelling reason. He argued that it is the board’s fiduciary duty to weigh the options.
Although not his reason for the decision, Healey indicated approval that the Feodoroff was part of the representing team. He noted that he didn’t believe the Town ever had a female Town Counsel. Braccio stated that Feodoroff had impressed her.
In stating her reasons for not selecting Cipriano, Braccio noted that she had recently been concerned with the tenor of some of his emails. Still, in addition to thanking Cipriano for years of service, she echoed Malinowski in thanking him specifically for guidance on the affordable housing property on Stockwell Lane.
As for the other two competitors, selectmen ranked West Group last. The board unanimously opined that West Group wasn’t a good fit for the Town. They referred to lack of familiarity the firm had with Southborough and that its municipal experience was focused on larger cities and on out of state municipalities. Stivers ranked Petrini & Associates as his top choice. He acknowledged they were more expensive but got the impression they would be willing to negotiate a flat fee. But while Stivers said he thought they did a better job of listening to and actually answering questions, others were much less impressed.
You can use the following links to view the proposals: Mead, Talerman & Costa; Cipriano; Petrini & Associates; and West Group. To view Cipriano’s interview, click here. To view the other interviews, click here.
MTC’s experience representing Southborough
One of the dozen municipalities MTC represents is Southborough. The “Costa” in the name represents Adam Costa who has been working with Braccio on the proposed bylaw for changing zoning in the Downtown District.
Interestingly, the application doesn’t note that the primary contact for MTC, Jason (Jay) Talerman, also has a history working with Southborough officials. It was raised by in MTC’s interview on June 8th. He reminded that he had done a lot of work for the Town as special counsel. He told selectmen that the Town Administrator knows he can call him on a Saturday evening and he’ll answer. Referring to his competition as “a good guy”, Talerman said that even Cipriano knows that he can call on him to step in on a moment’s notice when he has a conflict.
Readers would be most familiar with Talerman’s service from his role as special counsel at past Town Meetings.
In 2017, Talerman helped convince Annual Town Meeting voters to defeat a Citizen’s Petition Article (proposed by Stivers) that would have allowed all elected boards to hire their own independent counsel when needed. (As it stands, only selectmen can approve that. That was a very public point of contention when selectmen refused a Planning Board request for special counsel to help them when they opposed ZBA’s Park Central decision.)
In 2018, Talerman unsuccessfully argued at Special Town Meeting against a Citizen’s Petition Article to “affirm” the ZBA quorum as four members. The point of contention (again) related to the ZBA’s handling of Park Central. Following the successful passage of the Article, both Talerman and Cipriano were criticized for trying to torpedo the ratification of voters’ decision. In behind the scenes emails to the Attorney General’s office, the attorneys argued that the quorum change was illegal in light of laws allowing 3 members to decide a 40B case. The AG’s office ruled in agreement with the attorneys on that point.***
At the June 22nd meeting, selectmen discussed how to proceed related to ongoing litigation that Cipriano has been working on. Healey suggested they have MTC propose how to proceed at their July 13th meeting. (That didn’t make the agenda. So, perhaps it will be on a future one.) He noted that it may make sense for Cipriano to continue being involved in some matters.
They also discussed the possibility of expanding MTC’s role beyond General Town Counsel. Healey posited that the Town may no longer have need to keeping separate Labor Counsel and other special counsel. He suggested bringing MTC in to discuss the special services they could provide.
In the meantime, the board voted to extend the contract for current Labor Counsel (Timothy Norris) for an additional 90 days past the June 30th expiration.
Cipriano’s history with Southborough
It’s worth noting that Cipriano’s long role in Southborough government far predates his appointment as Town Counsel in 2001. According to his resume, over a decade prior he served as special counsel on zoning for a year. More significantly, before he worked for Southborough selectman, he was one. His resume lists his tenure as 1981-1987.
*Cipriano’s application did include a backup attorney (James B. Lampke) and some special attorneys for specific areas of law. However, he is the sole proprietor of his own law firm, and would have continued to mainly operate as such.
**The MTC flat fee proposal selected by selectmen states it “shall include”:
- substantially all general municipal legal work performed by the firm’s partners, associates and/or attorneys-of-counsel and related services performed by the firm’s support staff.
- all representation and legal opinions for general and land use matters as well as preparation for and attendance at Annual and/or Special Town Meetings, as necessary, and three (3) board hearings or meetings per month
- defense and prosecution of all customary land-use litigation, mediation and arbitration relating to zoning, planning, board of health, conservation, and licensing, as well as enforcement of zoning and general by-laws.
- all services relating to review of municipal contracts and procurement issues.
- includes representation of the Town on all significant licensing matters handled by the Board of Selectmen, including liquor licensing.
- includes one monthly set of “office hours” at Town Hall, as may be directed by the Town, as well as two (2) training seminars per year.
- The firm’s internal costs, such as telephone services, utilities and clerical assistance . . . standard mailing fees or routine copying
For the full proposal, click here.
***Prior to Town Meeting’s vote, resident John Butler told residents not to worry if the Article might be illegal as Talerman argued. He pointed out that if it was, the Attorney General’s office would strike the language.
I commend the Selectmen for a careful review of how the Town can best be served in regard to legal counsel. It is far easier for a volunteer board, such as the Selectmen, to avoid any initiative that carries the stress of being responsible for making changes. There is a strong tendency to react to events, rather than be proactive. In this instance the sole practitioner model of Town Counsel has been obsolete, I believe, for two decades or more, so the time for an open minded consideration of this question was overdue. In summary, my thanks to this Board for doing this now.
Thank you for your 20 years of service to us, Aldo. Much appreciated.
Thanks for the update on the town’s legal counsel front.
Unfortunately, the article contains at least a couple of glaring omissions.
First is an explanation for why “some readers may be disappointed with who his replacement is.”. The story alludes to something, then leaves readers dangling – unless they’re “in the know”. Is that a requirement for reading the blog?
Second is the reason the member Dennington’s reason for recusal. We have elected these people to conduct some amount of the town’s business. Not participating doesn’t seem to be an option – unless there’s some real conflict of interest. Please provide the (public information) reason for this recusal.
Watching the recent BOS video recording I was struck by two things – both of which felt like a lack of real leadership.
One, there was a woman who was volunteering for two (2) town committees and seemed to be well qualified for each. At first, the BOS seemed to inclined to approve of her application, gushing over her background. Then, member Dennington recalled that he knew of someone who “might” be interested in serving on one of the committes under consideration.
Slam on the brakes and allow the candidate to proceed with one committee while member Dennington goes off to see if the “might” person really is interested.
This is leadership? A person is present and is willing to expend the effort. Where is the mystery candidate? Why jeopardize the “bird in the hand” for a “maybe”?
The second incident had to do with approving candidates for the ad hoc noise bylaw committee. As I understood it, a call for people went out several weeks ago asking for volunteers. Those volunteers were contacted and asked to attend the recent BOS meeting. Almost all of them showed up. One who did not – for reasons unknown – happens to be a physician. Some BOS members assumed his absence was due to “an emergency”, though this conjecture was unsupported by any factual information. The absence could have been explained by any number of things.
As a result of one (1) person’s inability to appear, the BOS vote on this new committee membership was punted to the next BOS meeting.
Again, this does not appear to be a demonstration of leadership.
It does appear to be a demonstration of procrastination.
For both instances, this voter asks, “Why?!?”
How about results – not excuses?
In answer to one of your questions. . . understanding “why ‘ why “some readers may be disappointed with who his replacement is’” didn’t require being “in the know”. It just required reading the full post.
I wrote that “Based on the history of one the primary contact for the new firm, some readers who have called for Cipriano’s replacement over his handling of Park Central legal matters may be disappointed with who his replacement is.” I then broke up the story into sections.
In the section “MTC’s experience representing Southborough”, I wrote about Jay Talerman’s history representing the Town on two matters that had links to Park Central. As I described, his involvement in the 2018 matter led to public criticism of his actions. For those who wanted more details on that, I included links to related stories.