Letter: Open Letter Of Concern About The Town Attorney’s Misrepresentations To The Hampshire Superior Court

Photo: Code of ethics by Nick Youngson CC BY-SA 3.0 Pix4free

This letter was submitted to the Amherst Town Council on June 2, 2021

I write to bring to your attention a concern about legal ethics. It is the inaccurate representations made by Town Counsel Lauren Goldberg to the Hampshire County Superior Court in a hearing on 28 April 2021, and in her Brief in Opposition filed the evening before. Attorney Goldberg made these misrepresentations in the course of representing the Town of Amherst in the case of Burke, et al. v. Amherst Town Clerk Audette (Civil Action No. 21-0043).

All attorneys have a duty of candor to the court. My training as a federal prosecutor included the absolute injunction, “Never spin a judge!” That is, never lie to the Court. (The Massachusetts Rules of Professional Conduct for lawyers are to the same effect. Rule 3.3, Candor Toward the Tribunal, provides in subsection (a): “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer….”).

To recap briefly, Burke v. Audette concerned plaintiff Amherst voters’ request, in light of COVID-19, for additional time to gather signatures on the first Voter Veto Petition (“Petition”) under Amherst’s new Town Charter. This Petition protested a vote of Town Council (the “Measure”) to approve borrowing $35,279,700 for the Jones Library’s proposed demolition/construction project. (https://www.amherstma.gov/DocumentCenter/View/55395/8b-FY21—06C–JONES-LIBRARYEXPANSION-AND-RESTORATION—-BORROWING-AUTHORIZATIONS). Omitting a few steps here, a successful Petition would put the Measure to the voters of Amherst, for them to determine in an election whether to repeal it. (Amherst Town Charter, SECTION 8.4: Voter Veto Procedures).

One factor that the Court considered in whether to grant the relief that plaintiffs sought was the balance of harm to all parties. Attorney Goldberg argued that one remedy plaintiffs sought, i.e., extending the time to gather Petition signatures, would harm the Town. Specifically, at the hearing on 28 April 2021, Attorney Goldberg told the Court:

“The [Jones Library] project itself is a $36 million project… subject to a grant from the Massachusetts Board of Library Commissioners of $13.6 million dollars. That $13 million dollar grant is part of an annual grant program. At the end of the fiscal year, all monies that haven’t been spent close out to the Massachusetts State General Fund, like all other annual appropriations.

The grant that’s provided is provided in segments and for … the Mass Board of Library Commissioners has said they need to know by Friday. We need to sign by Friday, April 30. And that if we don’t, #1 we’re not guaranteed the grant. They indicate that they’d like to put us back on the list, but that’s never going to be a guarantee, particularly the way that the State budget is. (Recording of oral argument, 28 April 2021, at 41:00 – 41:59. https://1drv.ms/u/s!AstKRV4uhr4nrj3k0ExjtZBa6eC_?e=obFJAW. Bold font supplied).

The analysis that we’ve done is that as soon as we fail to sign tomorrow [sic], then we jeopardize the chance to get the loan [sic] at all, and it’s definitely delayed, and if we go past June 30, it’ll be gone in its entirety.” (Ibid., at 44:12 – 44:33. Bold font supplied.)

The Town’s Counsel’s Brief in Opposition, filed the evening before, includes similar misrepresentations about this MBLC construction grant. For instance:

[T]he Town is operating under a tight deadline to sign a contract by April 30, 2021 to secure a $13.87 million grant from the Massachusetts Board of Library Trustees [sic]… Any delay in the execution of that contract could jeopardize the award of state funding (Opposition Brief, at 2. Bold font in original). Because funding in subsequent years is subject to appropriation by the State Legislature, there is no guarantee that the funding will be available if the Town does not commit to the project now (Opposition Brief, at 22. Bold font supplied).

The Town’s Counsel’s characterizations of this MBLC grant program were false (The Brief in Opposition also includes non-material misrepresentations that are simply embarrassing. E.g., “The Amherst Town Library … was originally constructed in 1892….” Brief in Opposition, at 3. Governor Calvin Coolidge signed the bill establishing The Jones Library, Incorporated, in 1919. The Colonial Revival building known as the Jones Library was constructed not in 1892, but in 1928. https://mhc-macris.net/Details.aspx?MhcId=AMH.249. If this law firm did not get even the name of the Library right, what else is it getting wrong?)

The source of grant funds is not annual appropriations, which can indeed vary from year to year, and which do revert to the General Fund if not spent by the fiscal year’s end. Instead, the source of funds is a single state bond issue large enough to fund, over some years, grants for all projects on the MBLC’s waitlist. This included the Jones Library project. The MBLC’s blog last summer reported:

The Senate passed bond bill S 2790 that contains funding for the Massachusetts Public Library Construction Program (MPLCP). …

The $115 million for the MPLCP will cover the projects on the waitlist.( From the MBLC’s blog, 16 July 2020, updated 7 August 2020).

On 6 May 2021, at the MBLC’s monthly meeting, an Amherst resident asked over Zoom if the Town had signed a contract with the MBLC on 30 April 2021. The answer was no. According to the MBLC, the Town had provided it with documentation on that date. But the Town had not signed a contract with the MBLC on 30 April 2021.

Indeed, the MBLC’s own regulations require it to award a provisional construction grant before the grant recipient can sign a grant contract. (Title 605, Code of Massachusetts Regulations, Section 6.05 (2) provides: “To be eligible to sign a grant contract and agreement with the [MBLC], the Applicant will: (a) have been awarded a provisional grant award….” Bold font supplied).

Thus the Town was not even eligible to sign a grant contract until 6 May, that is, after the MBLC had awarded it the provisional grant. Accordingly, Attorney Goldberg seriously misrepresented the facts about the grant to the Court.

The Town would not lose this grant if it failed to sign a contract with the MBLC by 30 April 2021. The truth was that the Town could not even sign a grant contract until eight days later, after the MBLC’s vote on 6 May.

It is essential to mention in addition Exhibit 1 to the Town’s Brief in Opposition: The Affidavit of Amherst Town Manager Paul Bockelman, dated 27 April 2021. In paragraphs 7 and 9 of his Affidavit, Mr. Bockelman swears, under the pains and penalties of perjury:

7. The Massachusetts Board of Library Commissioners (MBLC) awarded the Town a grant of $13,871,314 for the construction and renovation of the Jones Library. …

9. The MBLC stated that it needs a certified copy of the vote and a signed contract and associated documents for the first disbursement and that these contracts needed to be submitted to the MBLC by April 30, 2021….( Bold font supplied).

As shown above, as of 27 April 2021, the date of Mr. Bockelman’s affidavit, the MBLC had not yet awarded the Town a grant. The Affidavit’s paragraph 7 is flat-out false. In addition, for the reasons set forth above, the MBLC cannot possibly have required the Town to sign a grant contract by 30 April 2021: The Town was not even eligible to do so until after the MBLC’s vote on 6 May 2021 (605 CMR § 6.05 (2)(a)).  Thus Mr. Bockelman’s paragraph 9 can only be false,  as well.

The Town’s Counsel ought never to have filed with the Court an Affidavit so flawed. If Mr. Bockelman knew when he made them that these assertions were false, furthermore, then that is another matter, and potentially a consequential one. (See Massachusetts General Laws, chapter 268, § 1, Perjury: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter268/Section1)

It is fair to say that the misrepresentations detailed above were material. That is, they were factors in the outcome of the case. This is clear from Judge Agostini’s 30 April 2021 Decisiondenying the Plaintiffs’ Emergency Motion for a Preliminary Injunction. In relevant part, it states:

[I]t is worth noting the substantial risk of harm to the Town, were a preliminary injunction to issue, given the funding and operation deadlines it faces … particularly the April 30, 2021 deadline for the Town Council to secure grant funding from the [MBLC]. (Decision and Order, 30 April 2021, p. 5. Bold font supplied).

The Court might have ruled the same way had the Town’s Counsel told it the truth. That she did not, but instead made material misrepresentations on which the Court relied, is shocking.

On 20 May 2021, Attorney Carol Gray dismissed Burke v. Audette without prejudice. The Town’s Counsel’s conduct in that case remains nonetheless a matter of grave concern. She is the Managing Attorney (http://www.k-plaw.com/attorneys/) of a law firm that has served as Amherst’s Town Counsel since I was a Jones Library Trustee (2009 to 2012). During my tenure, I worked extensively with one of its attorneys whom I admired as a lawyer and a human being. Another with whom I worked to an extent seemed brainy and ethical. I am unable to account for what I see from that firm here.

As an Amherst resident I find the Town’s Counsel’s ethical violations in Burke v. Audette so troubling that I must ask: what is Town Council’s view of its own attorney’s spinning the judge?

For its own sake, accordingly, as well as that of the Town of Amherst, I would urge Town Council to consider with care whether it prefers to retain counsel on whom it can rely to honor the Massachusetts Rules of Professional Conduct.

Sarah McKee

Sarah McKee is former President of the Jones Library Trustees and a member of the Washington D.,C.Bar.

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