Town Meeting funds continuation of suit in secondary schools project

Published in the October 25, 2018 edition

By MAUREEN DOHERTY

NORTH READING —Flying under the radar mainly because that is the nature of active litigation, a request to appropriate an additional $300,000 toward special counsel legal expenses related to the Secondary Schools Building Project via a Free Cash transfer was passed by the voters at Town Meeting Oct. 15 but not unanimously.

The funds are being requested for use in “negotiation, mediation and/or litigation” in the town’s case against both PMA Consultants, LLC, and Dore and Whittier Architects, Inc.

Both the Select Board and the Finance Committee voted to recommend that Town Meeting appropriate the funds for this purpose.

Select Board member Steve O’Leary offered a refresher on the reasoning behind this request.

“This facility we are sitting in, it’s a beautiful building and we are very proud of it, but over the course of the construction in the very beginning there was a little bit of an oversight to the tune of $15 million. So in March 2012 we approved the first $108M to build the High School/Middle School building project and the debt exclusion (override of Prop. 2 1/2) was approved at a subsequent election. The following year Town Meeting was requested to approve an additional $15.5M for the project, again by an override vote. The override was a direct result of underestimating,” O’Leary said, explaining that the town believes the parties responsible for this oversight were both the project manager and architect.

O’Leary added that in the spring of 2013 “the board at that time engaged special counsel to make the legal avenues available to them and we have been back to subsequent Town Meetings for additional appropriations. We filed legal action against Dore and Whittier and PMA in the fall of 2015,” he said.

O’Leary noted that the town, through Town Meeting “has already authorized over $840,000 to date and approximately $198,000 remains those accounts. This additional $300,000, we anticipate, will get us through the legal case and hopefully we will not come back for any more money. The costs are extremely expensive in relation to the expert opinions we had to seek; depositions, which are ongoing at this point in time; and mediation, which we are started to engage in; and we anticipate having to go to trial.”

“They’ve filed counter-claims against the town,” O’Leary explained, adding, “and we hope this gets us through trial. The timeline is probably a couple of years. We’ve been told and we believe that our case is strong and has gotten stronger, and we ask for your support,” he said, while also realizing that the townspeople may have questions “that we may not be able to answer in a public session.”

“I’m voting no on this,” commented Janet Nicosia, 2 Poplar Terrace, said, referring to the likely $1M cost to litigate the case. “It’s been four years and we have no resolution on this matter. I would vote no and move on. I don’t see any ability to ask questions. Everything is discussed in executive session and we’re asked to continually keep sending hundreds of thousands of dollars into the attorneys’ coffers as they try to work toward something that we may or may not get. So my advice would be vote no and move on.”

O’Leary said they believe the case is worth pursuing. “We don’t believe that it’s frivolous and we expect to get a return on our investment,” he said.

Marci Bailey, 21 Duane Drive, asked if the town would be responsible for the other side’s legal expenses if the town does not prevail or if the other side would have to pay the town’s legal expense if the town prevails.

Town Counsel Darren Klein, who pointed out he is not working on this case, said, “The payment of the legal fees is dependent on how the case is decided. The judge could award attorney fees to either side, but it’s not automatic.

Sean Delaney, 7 Dix Road, a former selectman who was a member of the board when this issue was raised, supported the additional funding. He noted that if the town was to walk away it would not end the litigation in this case because the town still must spend attorneys fees to respond to the counterclaims. He added that the determination of whether to award attorneys fees is “based upon the nature of the litigation. I don’t expect that either side would be entitled to attorneys fees.

“Also, I concur with Mr. O’Leary that as this process has moved on it is my opinion that the town’s case has strengthened as the process has moved on through the discovery phase and the deposition phase,” Delaney said, adding, “where it stands right now I encourage the town to approve this warrant article.” It passed on a voice vote.