Over the past 18 months we’ve seen abuse of no-bid contracts hit a peak, with major projects undocumented and performed without formal work orders, without purchase orders, and without any written instructions. We’ve seen several projects, including continual painting of lines on scenic roads and the clear cutting around Parker School, bollixed up without any written trail and without accountability or cost reporting.
In December of 2011, I made a public records request for no-bid contracts. First the Town Manager responded that there were no such contracts, despite the existence of 25,000 (that’s right, 25,000) pages relating to no-bid work over the past three years. Jon Kurland, chair of the BOS and a lawyer, boldly misrepresented state law and publicly derided the request asserting that such contracts were “illegal” and that I “know they’re illegal.” They’re not illegal, of course, which is why the Town has been able to use them extensively and mostly without back-up documentation.
Threatened with court action last January to compel production of existing contracts, the Town Manager produced the Trinity Ambulance contract extension – that’s it. That was unacceptable, so I brought a suit to compel the Town to respond in good faith to my public records requests. The Town quickly filed a motion to dismiss the suit. As part of the motion to dismiss, the Town Manager submitted an affidavit stating that the Town had produced all responsive documents. That statement was demonstrably false and I pointed that out in my opposition to the Town’s motion. In subsequent motion papers, Town Counsel explicitly admitted that there were entire classes of contracts which existed and which fell within the scope of my prior requests but which had not been previously identified or produced by the Town.
In a nutshell, our top town officials falsely asserted that no contracts existed and the Town Manager submitted a sworn affidavit with false information in support of that position.
Despite the admission of Town Counsel and the demonstrably false sworn statement of Paul Cohen, the judge last week issued a decision allowing the town's motion to dismiss the public records case. Absent from the decision is ANY language or analysis concerning two of the principal claims – 1) that it is highly plausible the Town Manager was being disingenuous by claiming there are no contracts (not even work orders or purchase orders) among the 25,000 documents identified as pertaining to no-bid work for the town; and 2) the fact that it was proven that the Town Manager made false statements in his sworn affidavit. Paul Cohen’s sworn statement is false and therefore unreliable yet that affidavit is the principal basis upon which the judge decided that there is no case or controversy because everything has been produced according to Cohen.
The Court is saying we have to take Paul Cohen’s word that there is virtually nothing to produce even though his affidavit is demonstrably false. There is no question that there is a controversy over the existence of a number of no-bid contracts. Therefore, court jurisdiction exists and the Town's motion should have been denied. I am enormously disappointed in the decision, as the Court has established a dangerous precedent that town officials can refuse to produce documents by simply providing sworn affidavits that contain false information – obviously completely contrary to the intent of the Public Records Law.
I do not need to appeal this decision to further demonstrate that Paul Cohen and Jon Kurland have done their level best to avoid responding to simple requests for public records. Paul Cohen has refused even to produce information about the amount spent on no-bid contracts. Cohen’s sworn affidavit to the court is demonstrably untruthful, and if the judge doesn’t care to weigh that fact, then all we can do is vote out selectmen who refuse to represent our interests and vote for replacements who support good and honest government and who will properly supervise the Town Manager.
I am disappointed but certainly not surprised by the Court’s decision. Massachusetts courts have a long history of sticking it to the common man in favor of the politically connected. In fact, Massachusetts is the only state to have spawned an armed rebellion by residents desperately seeking to shut down the courts in order to keep all of their assets from being seized by the wealthy and powerful.*
At this point, we don’t need further evidence that no-bid contracts are being mismanaged in Chelmsford. Just this year, the land around Parker Middle School was clear cut by a logging company retained with a no-bid contract to “trim branches,” and lines were once again painted “mistakenly” on a scenic road – all without written instructions, without proper supervision by DPW staff, or any written documentation to demonstrate costs or accountability. This is in spite of the debacle last year when no-bid contractors “mistakenly” painted lines on Robin Hill Road and Pine Hill Road, creating a storm of controversy.
Unfortunately, the Court’s decision fosters the ongoing mismanagement and cavalier disregard for citizen rights that is eating away at the town physically, financially and politically. However, there are actions that can be taken. One of the most important is to simply vote out of office the officials who act as though it’s an amusing parlor game to mislead the public, act against residents’ best interests, and hire lawyers at your expense to keep the Town from having to adhere to the law. As long as our elected and appointed Town officials are not held accountable for false statements and bad decisions, they will continue to wreak financial havoc and affect the very integrity of our local government. We will have a chance to rectify the present situation next April.
Roland Van Liew
* Shay’s Rebellion occurred in Massachusetts in 1786 and 1787, as wealthy merchants and lawyers used the inability of farmers to pay their debts in hard currency (scarce after the Revolutionary War) as a means to force sell offs of their livestock at steep discount and to obtain control of their land, leaving them destitute. Many of the farmers had served in the war and had returned, unpaid, to face debts for state and local taxes that they couldn’t pay in hard currency. As one of them put it, “The great men are going to get all we have and I think it is time for us to rise and put a stop to it, and have no more courts, nor sheriffs, nor collectors nor lawyers.”
Several hundred farmers temporarily blocked access to courts in several cities and towns during late 1786 in order to try and stop foreclosure activity. But eventually the state used force to arrest the ringleaders, which led to all out war with farmers in the western part of the state in early 1787. Dozens of people were killed, mostly protesting farmers, and the state government eventually made minor changes to the tax laws but did not prevent continued foreclosures of the farmers’ property by “the great men.”
** The entire decision can be accessed here.