Last Friday, the deposition by Dick McClure of Eastern Bank official Thomas Dunn revealed that Town Manager Paul Cohen has lied repeatedly to the citizens of Chelmsford and the Board of Selectmen. This bothers the selectmen not at all, in fact they have defended Mr. Cohen using the tired old prevarications and non-denial denials that Cohen repeats in Wednesday's Lowell Sun article at http://www.lowellsun.com/ci_17074992?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz1ApXYhwn5.

The article contains much misinformation and disinformation from the usual suspects including Paul Cohen and Pat Wotjas. Below are corrections, colored yellow. If you are concerned that the BOS has so far found these issues not worth resolving let them know that you are concerned and want these issues sorted out in Land Court. Then, if the BOS still does not act, then we’ll know that they’re simply not fit to represent our interests as their constituents and we will take appropriate action.

By Rita Savard, rsavard@lowellsun.com

Updated:01/12/2011 06:36:18 AM EST

CHELMSFORD – Richard McClure wants the town manager's resignation.

Town Manager Paul Cohen wants an apology.

After the testimony of an Eastern Bank senior vice president, one thing is clear – a tug-of-war continues over facts behind 9 North Road.

There is no tug of was over the facts. The written record supports Eastern Bank officer Dunn’s account, not Cohen’s.

McClure, who has sued the town over its approval of the controversial Eliopoulos building project, said the Board of Selectmen should demand that Cohen resign in the wake of Friday's deposition hearing at Latham Law Offices in Reading.

But Cohen sees a different version of the story.

"I think I'm owed an apology," Cohen said. "What upsets me is that their original complaints were proven wrong. But there were no apologies, just new accusations."

McClure’s “original complaints” have never been “proven wrong” because they are in fact accurate and true.

Cohen was responding to charges raised against him last year regarding his role in the development of 9 North Road.

A July mailing that landed in thousands of Chelmsford mailboxes railed the town manager for allegedly turning down land that was owned by Eastern Bank and offered at no cost to the town.

The letter, penned by Roland Van Liew of Better Not Bigger Alliance, stated that Cohen not only refused the bank's offer, but that he also failed to notify the Board of Selectmen and the Community Preservation Committee about his decision. The Better Not Bigger Alliance is an organization that advocates sustainable growth.

Cohen said the allegations are false and at no time was he offered free land from the bank.

Since he cannot refute the central allegations, this peripheral issue is a common theme that Cohen has emphasized for months: that no "dealings" took place and therefore no land was offered “for free.” That's the point. He did nothing, and kept his mouth shut. That's as bad or worse than negotiating poorly. In fact, Cohen had been notified in February 2009, by Captain Hank Houle of the Fire Department, that the land was available and the bank was willing to negotiate with the town including the use of tax abatements rather than cash.

Cohen didn't even try to take advantage of the fact that the land was available for a very low price, or even for no cash. Cohen's non-denial denial purposely ignores the memorandum with a handwritten note by Dunn to explore land-for-tax-abatement option. Of course Dunn never provided a written quote to the town because Cohen never followed up, never returned Dunn's calls.

OK, so Cohen has successfully guided the reporter away from the McClure lawsuit and formal inquiry to a 9-month-old letter from Better Not Bigger, which has nothing to do with McClure. So, let me clarify Cohen’s misstatements of fact. Cohen not only refused to return the bank officer’s phone calls – repeatedly, according to the deposition – he used as an excuse that he “needed to check with his superiors” (the BOS) but he never did. And so he never returned the phone calls. Dunn was persistent and did reach the Town Manager on occasion, but was never told that “the town” (Cohen likes to refer to himself as “the town”) had any interest in purchasing the property. I personally checked with the chairman of the Community Preservation Committee last year, and they most certainly were not notified by Phil Eliopoulos or Paul Cohen, despite the fact that Eliopoulos was a sitting selectman and had an ethical and fiduciary duty to report the fact that the land was available for purchase to any interested government bodies, including the Fire Station Study Committee, the CPC, and of course the BOS. Phil did not do so. And Cohen didn’t notify the BOS or the CPC of their options either.

On Friday, Thomas Dunn, Eastern Bank's senior vice president of corporate operations, was questioned for several hours about his conversations with Cohen.

Cohen told town officials during Monday's Board of Selectmen meeting that the deposition transcripts, printed in full on the town's website, prove that no conversation about free land or dealings behind the backs of selectmen took place.

This is a typical Cohen non-denial denial. He says “no conversation about free land or dealings” took place. That’s the point. He did nothing. He said nothing. He told no one. In this case, not negotiating is even worse than negotiating poorly, which is the best we’ve ever gotten from this official. Cohen is saying he’s not culpable because he didn’t do anything. That’s phony logic of course. He is culpable because his negligence and/or malfeasance (the written record indicates it’s the latter) subsequently has had the town committees floating proposals that have ranged between $9 million and $12 million to build a new fire station, when the Fire Station Study Committee itself had recommended repair and extension at the current location as a perfectly desirable and feasible option. The fact is that Cohen took that option off the table by fiat, without approval by his bosses on the BOS. That option was reportedly to cost between $1.2 million and $1.5 million, including the $650,000 to repair the floor (which has now already been done).

So the repair/extend option would cost an additional $600,000 to $900,000 if the Planning Board and the BOS had been provided complete information by the Town Manager and kept that option open by obtaining the land behind the fire station. That also would have kept most of that parcel as open space, as the Preservation Restriction dictates. Instead, Cohen withheld information and allowed the Eliopoulos clan to purchase the land and use insider influence to gain an unbelievable array of special permits and use legal maneuvering to prevent a formal inquiry or interpretation and enforcement of the Preservation Restriction in Land Court.

Pointing to page 153 of the transcript, Cohen referred to McClure asking Dunn why he would contact the town of Chelmsford if the bank was negotiating with the Eliopoulos family.

Dunn's response was, "to see if I could get a better price."

You’ll note that pages 40, 41, 48 confirm that Paul Cohen violated 3 codes of state ethics and violations of professional responsibility. Then it starts to get really interesting around page 125 or so. Dunn makes it clear that the bank would have preferred to sell the land to the town, even if it was at the same price. The deposition and accompanying supporting documents make it clear that the price of the acre or so behind the fire station was being included at a price of $50,000 beyond the price of the Emerson House alone. One can only conclude that had the town been willing to offer $50,000 or $100,000 that the Village Green could have been preserved.

None of this was presented to the BOS or any other body, because Cohen didn’t “discuss it with his superiors” and never returned Tom Dunn’s calls.

Even including the Emerson House, the entire deal could have been had for about $450,000. That money was available in the land acquisition account, which Cohen understands perfectly well but did not convey to the BOS (see below). If the town didn’t want the Emerson House but was required by the bank to buy it to consummate the deal (unlikely), it could have sold off the Emerson House later. By any standard, refusing this deal so we could bicker about fruity proposals to build a new station for around $10 million is a massive breach of fiduciary duty that the BOS refuses to discuss to this day.

Oh, and you might want to check out the multiple violations by Cohen and Eliopoulos of Chelmsford’s Code Of Ethics, posted here: www.betterchelmsford.com/ChelmsfordCodeofEthics.pdf

Guess who was responsible under the bylaw for reporting Phil Eliopoulos’ and Paul Cohen’s multiple ethics violations? The Town Manager, Paul Cohen! Whose boss was, at that very time, selectman Phil Eliopoulos!

When McClure asked what Dunn was offering, Dunn said, "I wasn't offering, I was asking if they had interest."

In light of the transcripts, McClure said if Cohen "is waiting for an apology from me, tell him not to hold his breath."

McClure said the parcel in question was clearly a top site marked under consideration for a new Center Fire Station.

"Paul Cohen was offered the entire parcel but he purposely didn't act on it because he knew the Eliopoulos family was interested," McClure said. "It just doesn't pass the sniff test."

Cohen cannot deny this. So he harps on the fact that he was “never offered the land for free.” I wrote that he was offered the land for free in exchange for tax abatements. But the big thing is, that the deposition makes it clear that all negotiations were on the table – including land/tax swap – and that Cohen simply declined to return calls, and declined to notify the selectmen.

Fire Dept. Captain Hank Houle has stated unequivocally that he told the Town Manager “we could possibly get the field out back of the Fire station for a tax abatement. I then gave the TM Tom's phone number.” This account is corroborated by the hand written note bank officer Tom Dunn wrote on a related document about looking into tax abatement. The deposition indicates clearly that Cohen never raised the issue with the bank and never returned phoned calls from Dunn pursuing the possibility of selling the land to the town, which Dunn clearly indicated would have been the bank's preference.

It must be emphasized that whether or not the land could have been obtained “for free” rather than $50,000 or $100,000 is not important to the overall narrative of malfeasance and breach of fiduciary duty. The short story is, Cohen didn't call the bank, though he lied to the selectmen much later and said he did.The bank called him – several times – and he stonewalled them. And he told them he'd "check with his superiors" but he never did. He never reported Eliopoulos' conflict of interest to the Ethics Commission or the BOS, even though he knew about it certainly as early as February. He and his proxies claim that he did inquire as to the availability of land behind the fire station, but the deposition indicates that in fact he never expressed interest by the town in the one-acre lot, which was available for $50,000 to 100,000 – he only inquired about the tiny piece already used for parking by the firemen behind the station.

At the time, Philip Eliopoulos, Michael Eliopoulos' son, was a member of the Board of Selectmen.

Cohen said he first heard about the bank's interest in selling the 9 North Road property from Hank Houle, a Chelmsford firefighter who was also on the Fire Station/DPW Search Committee.

Houle told Cohen that bank representatives were speaking with Mike Eliopoulos, Cohen said.

Cohen said he then called Dunn to inquire whether the bank was negotiating a sale.

"We didn't talk about price, but I knew what the assessed value of the land was," Cohen said. "He said the parcel was for sale. I said I'd get it back to the Board and I did."

Cohen said during an executive session, which followed a Board of Selectmen work session, the issue was discussed with selectmen when Philip Eliopoulos was not there. However, there are no recorded meeting minutes of the conversation, Cohen said.

Selectman Pat Wojtas said yesterday she vaguely recalled a brief discussion about the issue.

"Paul told us that Phil's father was interested in purchasing the entire parcel, but there was no, 'Oh what do we now?,' " Wojtas said. "During that time we were going through quite a few (state aid) cuts and there were many layoffs. Publicly, we weren't really that interested in it at the time. If the timing was different maybe the outcome would have been different."

Money for acquisition of land is available outside the budget, in the land acquisition account, which at the time had (and still has) over $400,000 in it specifically and only for the acquisition of land. Given Wojtas’ lengthy experience in Town Hall, it is incomprehensible that she would remain this ignorant about where the money would come from. And it is strong evidence that the Town Manager never did present the options for that parcel as Wojtas “vaguely” remembers. In any case, Wojtas is saying that because of budget cuts that were irrelevant, it was somehow OK for the Town Manager to sit on the offer of priceless open space for sale for some $400,000 and leading to the current situation where we are on the hook for many millions to build a new fire station. But there’s no way to slice it and dice it and make it look different: this is the result of the Town Manager’s malfeasance and the subsequent complicity of the Planning Board and the BOS.

The parcel, purchased by Michael Eliopoulos from Eastern Bank, for $400,000 will eventually house medical, dental and law offices owned and operated by his children and other family members.

The two-story, 15,494-square-foot office building being built on the parcel first spurred lawsuits from local dentist Michael Sargent, whose practice abuts the property.

An independent survey reveals that the building is over 16,000 square feet and violates height restrictions for anything less than a four-story building. And it’s not two stories. Go look at it. It’s some 40 feet high!

Sargent filed suit with three town boards over an alleged violation of a 1978 preservation restriction, which he said was created to retain the two-acre parcel as open space. Former Selectmen John Carson, Paul Hart and Joe Shanahan, who helped author the preservation restriction more than 30 years ago, spoke before town officials last year to confirm the intent of the bylaw was to keep the land as open space.

Following a packed public hearing last August, selectmen agreed that the project didn't violate the preservation restriction and Sargent dropped his lawsuit. But McClure picked up where Sargent left off.

McClure is not really picking up where Sargent left off. McClure is appealing the faulty process that was followed in granting the permits, and the violations that led to corrupted decision making.

Despite several lawsuits, the project was given a green light by a state land court judge last year.

This is a myth that has been circulating in the press for some time. The judge never gave the project a “green light.” He said,"You can build, but it's at your own risk." That's hardly a green light, it's a yellow light – recommend stop unless not safe to do so. It’s not safe for Eliopoulos to stop because if he does, it will provide time for formal inquiry, for interpretation and enforcement of the Preservation Restriction in court (rather than Matt Hanson expressing his opinion that the Preservation Restriction “seems” to be adhered to “taken as a whole,” so the parts that are being violated don’t really count in his legally indefensible view).

The judge even invited the BOS to weigh in so that the PR could be interpreted and enforced, but the BOS refused to make a motion to uphold the law and act as a co-plaintiff in Mike Sargent’s lawsuit to allow interpretation and enforcement of the PR at no cost to the town. Instead, they made a motion that in their opinion the PR wasn’t being violated, which passed. This ploy reportedly was at the advice of Town Counsel, Kopelman & Paige, which firm continues to provide advice to the BOS despite the ethical violations of K&P and obvious conflicts of interest that they have.

It becomes obvious that the BOS as a whole just doesn’t care a fig about upholding the legal interest that you and I and every resident have in that property, and they lack the backbone to rectify their errors even though the price tag of $10 million is obvious to everyone. Is it worth $10 million and the obliteration of our Village Green for the Eliopoulos’ to make their million? Paul Cohen appears to think so. I’m not sure the BOS really does, but they do get nonstop bad advice from the Eliopoulos’ and Cohen and Kopelman & Paige. Let them know that you don’t think it’s worth it, and we’ll know by their response who they think is more important: you or Paul Cohen.

McClure, who filed his suit last summer, said he plans to call more town officials in for questioning.

Many thanks to Dick McClure for acting on principle and providing this important service to the town. No one is footing the bill for McClure, this is all pro bono work that benefits all of us. Meanwhile “the town” uses your tax dollars to pay hired guns at Kopelman & Paige to fight against our interests every step of the way. Cohen's ethics violations and willful withholding of critically important information have led to the current $10 million gyrations for a new fire station. Cohen stated for months in 2009 that the repair option was "off the table" but refused to explain why. The BOS continues the folly by using all manner of pretense to keep the matter out of land court for PR enforcement. The claims of George Dixon, Matt Hanson, and Pat Wojtas that they don’t want to take the matter to Land Court in order to “save money” ring hollow.

To view a .pdf document of the complete deposition, visit www.townofchelmsford.us/whats-happening.cfm

You can also view the complete deposition at www.betterchelmsford.com/DunnDeposition2011.01.07.pdf

Yours with best wishes and hope for the future of our town,

Roland Van Liew