20120709 dahlen deposition

7/31/2019 20120709 Dahlen Deposition

1/40BRAMANTI & LYONS COURT REPORTING, INC. Page 1 -

VOLUME: IPAGES: 1 - 107EXHIBITS: 1 - 13

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURTC.A. NO. 08-04641-B

------------------------------------------xJOHNSON GOLF MANAGEMENT, INC.,

Plaintiff

vs

TOWN OF DUXBURY, and NORTH HILL ADVISORYCOMMITTEE, Consisting of MICHAEL DOOLIN,CHAIRMAN, SCOTT WHITCOMB, ROBERT M. MUSTARD,JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO,MICHAEL T. RUFO, THOMAS K. GARRITY, RichardManning, W. JAMES FORD, and GORDON CUSHING(EX OFFICIO) and CALM GOLF, INC., andCHARLES LANZETTA,

Defendants------------------------------------------x

DEPOSITION OF SHAWN DAHLEN, taken onbehalf of the Plaintiff, pursuant to theapplicable provisions of the Massachusetts Rulesof Civil Procedure, before James A. Lyons, CSRNo. 117993, a Registered Diplomate Reporter,Certified Realtime Reporter and Notary Public inand for the Commonwealth of Massachusetts, atthe offices of Follansbee & McLeod, LLP, 536Granite Street, 3rd Floor, Braintree,Massachusetts, on Monday, July 9, 2012,commencing at 2:02 p.m.

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BRAMANTI & LYONS COURT REPORTING, INC.REGISTERED PROFESSIONAL REPORTERS92 STATE STREET, BOSTON, MA 02109

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2

A P P E A R A N C E S :1

2S t e p h e n R . F o l l a n s b e e , E s q .

F o l l a n s b e e & M c L e o d , L L P35 3 6 G r a n i t e S t r e e t , 3 r d F l o o r

B r a i n t re e , M a s s a c h u s e t t s 0 2 1 8 44A t t o r n e y f o r t h e P la i n t if f

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L e o n a r d H . K e s t e n , E s q .6B r o d y , H a r d o o n , P e r k i n s & K e s t e n , L L P

O n e E x e t e r P l a z a76 9 9 B o y l s to n S t r e e t

B o s t o n , M a s s a c h u s e t t s 0 2 1 1 68A t to r n e y f o r t h e T o w n o f D u x b u r y , a n d

N o r t h H i l l A d v i s o r y C o m m i t te e , E t A l s .9

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A r t h u r P . K r e ig e r , E s q .

A n d e r s o n & K r e i g e r , L L P11O n e C a n a l S t r e e t , S u i t e 2 0 0

C a m b r id g e , M a s s a c h u s e t t s 0 2 1 4 112S p e c i a l C o u n s e l fo r t h e T o w n o f D u x b u r y

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A L S O P R E S E N T :14

D o u g l a s J o h n s o n15J a s o n L a r a m e e

( F o r J o h n s o n G o l f M a n a g e m e n t , In c . )16

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1920

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DEPOSITION OF SHAWN DAHLEN

3I N D E X1

D e p o s i t i o n o f : P a g e2

S H A W N D A H L E N3

4E x a m in a t io n b y M r . F o l la n s b e e 6

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E x h i b i t s P a g e8

N o . 1 M a n a g e m e n t A g r e e m e n t d a t e d 1 691 2 / 2 1 / 9 8

10N o . 2 P a c k e t o f d o c u m e n t s d a t e d 2 9

O c t o b e r 4 , 2 0 1 011

N o . 3 T r a n s c r ip t o f O c t o b e r 4 , 3 0122 0 1 0 D u x b u r y B o a r d o f

S e l e c t m e n m e e t in g13

N o . 4 E x c e r p t f r o m G e n e r a l 4 214B y - L a w s o f t h e T o w n o f

D u x b u r y15

N o . 5 A p p e n d i x B , T o w n M a n a g e r 4 316A c t in t h e T o w n o f D u x b u r y

17N o . 6 M e m o r a n d u m o f D e c i s io n a n d 6 2

O r d e r re D e f e n d a n t s ' M o t io n18F o r S u m m a r y J u d g m e n t

19N o . 7 E - m a i l d a t e d W e d n e s d a y , 7 2

O c t o b e r 1 3 , 2 0 1 020

N o . 8 L e t t e r d a t e d J a n u a r y 2 7 , 7 7212 0 1 1

22N o . 9 F a x c o v e r w i t h l e t t e r 7 8

d a t e d J a n u a r y 2 1 , 2 0 1 123

24


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I N D E X , C o n t 'd1

E x h i b i t s P a g e2

N o . 1 0 I F B 2 0 1 0 - 2 0 1 1 M a n a g e m e n t 8 43

C o n t r a c t f o r N o r t h H i ll

G o l f C o u r s e4

N o . 1 1 A f f i d a v i t o f J a s o n L a r a m e e 8 55

N o . 1 2 D u x b u r y B o a r d o f S e l e c tm e n 9 16

M e e t in g M i n u t e s d a t e d M a y 9 ,

2 0 1 17

N o . 1 3 I F B 2 0 1 1 - 0 0 1 A M a n a g e m e n t 98

C o n t r a c t f o r N o r t h H i ll

G o l f C o u r s e d a t e d M o n d a y ,9

M a r c h 2 1 , 2 0 1 1

10

11

12

13

14

15

16

1718

19

20

21

22

23

24


5

S T I P U L A T I O N S1

I t w a s s t ip u l a t e d a n d a g r e e d b y a n d2

b e t w e e n c o u n s e l fo r t h e r e s p e c t i v e p a r t i e s t h a t3

t h e w i t n e s s w i l l r e a d a n d s i g n t h e d e p o s i t io n4u n d e r t h e p e n a l t ie s o f p e r j u r y w i th i n 3 0 d a y s o f5

r e c e i p t o f t h e t r a n s c r i p t .6

I t w a s f u r t h e r s t ip u l a t e d a n d a g r e e d t h a t7

a l l o b j e c t io n s , e x c e p t a s t o t h e f o r m o f t h e8

q u e s t i o n , in c l u d i n g m o t i o n s t o s t r ik e , s h a l l b e9

r e s e r v e d u n t i l t h e t i m e o f t r i a l .10

I t w a s f u r t h e r s t i p u l a t e d a n d a g r e e d t h a t11

S H A W N D A H L E N a p p e a r s b e fo r e u s to d a y f o r h i12

d e p o s i t i o n . T h i s w i tn e s s d o e s n o t , a t p r e s e n t ,13

h a v e a d e q u a t e d o c u m e n t a t io n a t t e s t in g t o h i s14

i d e n t i ty t h a t s a t is f ie s t h e s t a n d a r d s r e q u i r e d15

b y t h e C o m m o n w e a l t h o f M a s s a c h u s e t ts f o r16

N o t a r i e s P u b l ic in a d m i n is t e r in g o a t h s .17

T h e p a r t ie s i n t h i s a c t io n t h e r e f o r e18

s t ip u l a t e a n d a g r e e t o h o l d h a r m le s s t h i s N o t a r19

P u b l ic i f th i s w i tn e s s i s l a t e r d i s c o v e r e d t o20

h a v e f a l s i f i e d h i s id e n t i t y .21

22

23

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SHAWN DAHLEN, a witness called on behalf1

of the Plaintiff, first having been duly sworn,2

on oath deposes and says as follows:3

4

EXAMINATION BY MR. FOLLANSBEE:5

Mr. Dahlen, could you identify yourself, giving6 Q.

us your name and your occupation and business7

address?8

Sean Dahlen, 1500 Tremont Street, Duxbury,9 A.Mass.10

And what is your business?11 Q.

I'm a builder and a landscaper.12 A.

And what elective office, if any, do you hold in13 Q.

the Town of Duxbury?14

I am vice chairman of the Board of Selectmen15 A.

currently.16

And how long have you had that position?17 Q.

Since the end of March 2010.18 A.

And when you were or before you were elected to19 Q.

the Board of Selectmen, did you have any other20

positions in town government in Duxbury?21

Yes.22 A.

And could you tell us what they were?23 Q.

I was on the conservation, on the Board of24 A.


7

Health. I was on 20 different boards and1

committees.2

Do you need them all?3

What are the major ones, other than the4 Q.Conservation Commission and the Board of5

Health?6

MR. KESTEN: They are all major.7

I can't recall, at the moment.8 A.

Were you ever on the ZBA?9 Q.

No.10 A.

How long have you been involved in town11 Q.

government, either through elected positions or12

appointed positions in the Town of Duxbury?13

At least, 30 years.14 A.

And were you born in Duxbury?15 Q.No.16 A.

How long have you lived in Duxbury?17 Q.

Approximately, 50 years.18 A.

You must have been pretty close to being born19 Q.

there.20

Where did you attend school, starting21

with high school?22

Duxbury High School.23 A.

And any education beyond that?24 Q.


8

Yes.1 A.

Where?2 Q.

Wentworth Institute and Wentworth College of3 A.

Technology.4

And did you receive a degree from Wentworth?5 Q.

Yes.6 A.

What year was that in?7 Q.

1971 and 1975 -- sorry, 1973 and 1975.8 A.

And what year did you graduate from Duxbury High9 Q.School?10

1971.11 A.

I could have done the math on that, I guess.12 Q.

In addition to the role you have as the13

vice chair of the Board of Selectmen right now,14

are there any other positions in town government15

that you currently hold?16

Yes.17 A.

And what are those?18 Q.

I am on the local housing partnership, local19 A.

housing trust, school building committee, publi20

safety building committee.21

In 2008, did you become aware of the litigation22 Q.

that we're here on today, the case of Johnson23

Golf Management versus the Town of Duxbury?24


9

No.1 A.

When did you first become aware of it?2 Q.

I don't recall.3 A.

When you were elected to the Board of Selectmen4 Q.in March of 2010, were you aware of the5

existence of the lawsuit, at that point?6

Yes.7 A.

And did you discuss it with any of your8 Q.

colleagues on the Board of Selectmen before you9

were elected to the Board of Selectmen?10

No.11 A.

And correct me if I'm wrong, but when you were12 Q.

elected to the Board of Selectmen in March 2010,13

the other two selectmen were Mrs. Sullivan and14

Mr. Donato --15

Correct.16 A.

-- is that correct?17 Q.

Correct.18 A.

And did you discuss with anyone prior to being19 Q.

sworn in as a selectman the fact that you would20

run or propose to become the chairperson of the21

Board of Selectmen?22

Not that I recall.23 A.

How did it come about that you were elected24 Q.



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chairperson initially?1

I was nominated by Betsy Sullivan.2 A.

And had that been discussed with you prior to3 Q.

the nomination?4

By whom?5 A.

By Betsy Sullivan.6 Q.

No.7 A.

Had it been discussed with you by anybody else,8 Q.

other than Betsy Sullivan?9

Not that I recall.10 A.

Did you discuss with anyone why Mr. Donato would11 Q.

not be a suitable candidate for the chairperson12

job?13

I don't recall.14 A.

Once you were sworn in on the Board of15 Q.

Selectmen, did you ever review --16

MR. FOLLANSBEE: Strike that.17

When you were sworn in on the Board of Selectmen18 Q.

in March of 2010, what did you do, if anything,19

to become familiar with the litigation that20

we're here about today?21

We had a presentation in executive session22 A.

with town counsel regarding all pending23

litigation.24


11

And when did that take place?1 Q.

I don't remember the date.2 A.

Was it the spring of 2010, fairly early in your3 Q.

role as selectman?4It was relatively early after I became elected.5 A.

MR. FOLLANSBEE: Could we go off the6

record for just a second?7

(Discussion off the record.)8

(BY MR. FOLLANSBEE) The meeting that you had9 Q.

with town counsel, town counsel was Robert Troy;10

correct?11

Correct.12 A.

Did you know Mr. Troy prior to becoming a member13 Q.

of the Board of Selectmen?14

Yes.15 A.Did you have any social relationship with him or16 Q.

is it strictly town politics?17

Town politics.18 A.

Now, with regard to the presentation that he19 Q.

gave you regarding the outstanding litigation,20

what did he tell you about the Johnson Golf21

litigation?22

I don't recall any specifics other than it was23 A.

one of the several cases that we had pending,24


12

at the time, and that it involved the town1

being sued with regards to conspiracy or bid2

rigging or something to that effect.3

Did he give you any of the background4 Q.

information about the case and how it had5

developed up to that point?6

I'm sure he did, but I can't tell you what it7 A.

was.8

Did you become aware that my client, Johnson9 Q.Golf Management, at the time, was operating the10

North Hill Golf Course under a court order?11

I was aware of that.12 A.

And did you familiarize yourself with the court13 Q.

order itself?14

No.15 A.

Had you reviewed --16 Q.


In the spring of 2010, when you first became a18 Q.

member of the Board of Selectmen, did you19

review any documentation regarding the20

litigation, Johnson Golf Management versus the21

Town of Duxbury?22

Do you want to repeat that one more time?23 A.

Sure.24 Q.


13

In the spring of 2010, when you first1

became a member of the Board of Selectmen, did2

you review any documentation regarding the3

litigation, Johnson Golf Management versus the4Town of Duxbury?5

I would say that I reviewed anything that was6 A.

sent to me as a selectman member by the town7

counsel.8

And did town counsel -- let's start with town9 Q.

counsel -- did town counsel explain to you how10

it came to be that Johnson Golf was operating11

the golf course?12

I would assume he did.13 A.

And you don't have any memory of that?14 Q.

Not specifically.15 A.Do you have any nonspecific memory of it?16 Q.

My understanding is that he was operating the17 A.

course under court order. That's my general18

memory. Who told me, how I knew it and wha19

date, I couldn't remember that.20

At some time in the spring to early summer of21 Q.

2010, did you become aware that there was an22

issue with the security for the contract23

between Johnson Golf Management and the Town of24



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Duxbury?1

Yes.2 A.

And how did you become aware of that?3 Q.

Through town counsel.4 A.

And what did he tell you about that?5 Q.

I don't remember the specifics.6 A.

Do you remember anything about what he told you7 Q.

about security?8

I believe, we did not have any and that it was9 A.

part of the contract and that he was working on10

getting that.11

And regarding that issue, the security issue,12 Q.

did you have more than one discussion with town13

counsel about that topic?14

I can't remember.15 A.

Did you discuss it with your colleagues on the16 Q.

Board of Selectmen?17

If we did, it was in an executive session, I18 A.

would assume.19

Well, do you have any memory of having the20 Q.

discussion, first of all?21

The answer is no.22 A.

Did you suggest any course of action regarding23 Q.

the fact that no security was in existence in24


15

2010?1

Say that again.2 A.

Did you suggest a course of action to be taken3 Q.

by the Board of Selectmen over the fact that4there was no security for the contract in5

2010?6

Not that I can recall.7 A.

Did you ever review yourself the contract in8 Q.

existence between Johnson Golf Management and9

the Town of Duxbury that ran from 1999 until10

2008?11

Yes.12 A.

And do you remember when you reviewed that?13 Q.

I believe, it was in preparation of a public14 A.

hearing that we had at the Board of Selectmen.15

Were you provided a copy of the contract?16 Q.

Yes.17 A.

And who gave it to you?18 Q.

I'll make an assumption that it was put in my19 A.

packet.20

Well, for those of us that don't get packets21 Q.

customarily, can you describe what your packet22

is?23

Yes.24 A.


16

All Board of Selectmen members have a1

file slot; and on Friday of every week, we have2

all pertinent information that the board needs3

to review over the weekend for an up-and-comin4

Monday meeting, and any information including5

the agenda is included in that packet.6

MR. FOLLANSBEE: I would ask that this be7

marked as the first exhibit.8

(Exhibit No. 1, For Identification,9

marked.)10

(Document handed to the witness.)11

(BY MR. FOLLANSBEE) Directing your attention12 Q.

to what's been marked as Exhibit No. 1, this13

was given to us as being a copy of the contract14

between the Town of Duxbury and Johnson Golf15

Management.16

Does this look familiar to you as the17

document that you were given?18

I would be guessing.19 A.

Well, I'll direct your attention to the20 Q.

signature page, which they did not number. It's21

about halfway through.22

I see it.23 A.

And it indicates a signature date of December24 Q.


17

21, 1998. And there are signatures of various1

officials from the Town of Duxbury as well as2

the President and Treasurer of Johnson Golf3

Management.4Now, did you know Mr. Longo, who is5

purported to have signed this as the town6

manager?7

I knew he was the town manager.8 A.

And did you know him, personally?9 Q.

Describe personally.10 A.

Well, had you ever met him?11 Q.

Yes.12 A.

And had you ever dealt with him as part of your13 Q.

dealings with other town officials?14

Yes.15 A.Have you ever discussed this litigation or this16 Q.

contract with Mr. Longo?17

Not to my belief.18 A.

Now, did you know Mr. Andre Martechinni?19 Q.

Yes.20 A.

And other than knowing him as an official of the21 Q.

Town of Duxbury, a member of the Board of22

Selectmen, do you have any other relationship23

with Mr. Martechinni?24



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Yes.1 A.

What other relationship do you have with him?2 Q.

He is a sailing buddy.3 A.

So is it that you sail on the same boat4 Q.

together?5

Correct.6 A.

Who owns the boat?7 Q.

I do.8 A.

So he has the benefit of having a friend with a9 Q.boat. Is that what you're saying?10

That would be correct.11 A.

So that works much to his advantage and your12 Q.

disadvantage, as you understand it?13

No. I think it's a mutual advantage.14 A.

So you would characterize Mr. Martechinni as a15 Q.

friend as well as a colleague in town16

government?17

That is correct.18 A.

And did you know John Tulley (phonetic) who was19 Q.

a member of the Board of Selectmen, at that20

time?21

John Tuffy, yes.22 A.

Tuffy, I'm sorry.23 Q.

Yes.24 A.


19

And how about Margaret Kearney, did you know1 Q.

her?2

Yes.3 A.

Now, when you reviewed what was given to you in4 Q.your packet, as the management agreement, is5

there anything that you were looking at6

particularly?7

I couldn't possibly recall what I was thinking8 A.

back then.9

And that was in 2010; correct?10 Q.

Correct.11 A.

Other than the issue of having no security,12 Q.

were there any other issues that were of13

concern to you regarding the Johnson Golf14

Management contract?15

MR. KREIGER: Objection.16

Unless I tell you not to, you can17

answer.18

At what point in time?19 A.

At the time before you started having hearings20 Q.

in the fall of 2010.21

I'm not sure if I ever saw the contract before22 A.

that time.23

I should have asked you about several other24 Q.


20

folks.1

In addition to the relationship that you2

had with Mrs. Sullivan as co-members of the3

Board of Selectmen, did you have any personal4

relationship with her of a social nature?5

No.6 A.

Are you a member of the Duxbury Yacht Club?7 Q.

Yes.8 A.

And how long have you been a member of the9 Q.Duxbury Yacht Club?10

Seven years maybe.11 A.

And is Mrs. Sullivan a member of the Duxbury12 Q.

Yacht Club?13

Yes.14 A.

Do you see her socially there?15 Q.

Once or twice a year.16 A.

And what would be the one or two times a year17 Q.

that you would see her there? Anything18

specific?19

No, nothing specific.20 A.

And does she also --21 Q.


I assume you keep your boat at the Duxbury Yach23 Q.

Club?24


21

No.1 A.

Where do you keep your boat?2 Q.

Marion.3 A.

And do you play golf at the Duxbury Yacht Club4 Q.Golf Course?5

No. At least not what I would call playing6 A.

golf.7

So you would be an infrequent golfer. Is that8 Q.

what you're saying?9

Maybe four times in my entire lifetime.10 A.

That would qualify as infrequent.11 Q.

As a member of the Duxbury Yacht Club,12

are you automatically a member of the Duxbury13

Yacht Club Golf Course?14

Yes.15 A.Are you familiar with the personnel at the16 Q.

Duxbury Yacht Club golf course?17

Some.18 A.

Is Mr. Emmett Sheehan a member of the Duxbury19 Q.

Yacht Club?20

Yes.21 A.

And is he a social friend of yours?22 Q.

No.23 A.

How often would you see him at the Duxbury Yach24 Q.



7/40


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Did you make a determination yourself that the1 Q.

Board of Selectmen should conduct a hearing?2

Did I make a determination?3 A.

Yes.4 Q.

I don't recall the specifics. I know we had a5 A.

hearing, but I don't recall how we got there.6

As the chairman of the Board of Selectmen, would7 Q.

it be up to you as to what gets on the agenda8

for a particular meeting?9


So knowing that a "hearing" on contract11 Q.

compliance took place on October 4, 2010, was12

it your decision to put that on the agenda for13

that particular night?14

Better stated, it would be the policy of the15 A.

Board of Selectmen. The chairperson can either16

put something on the agenda or assent to it17

being on the agenda.18

Do you recall whether anybody else asked to have19 Q.

that on the agenda?20

I don't.21 A.

And when you say assent to someone asking that22 Q.

it be on the agenda, is that another member of23

the Board of Selectmen that would have to make24


27

that suggestion?1

No.2 A.

For an example, if we have an event, an3

all alcoholic license, an awards ceremony, that4is not being put on the agenda by the5

chairperson of the Board of Selectmen. It's6

being put on the agenda by staff.7

I see.8 Q.

And who were the staff people in the fall9

of 2010 for the Board of Selectmen?10

The town manager, Barbara Ripley, now Barbara11 A.

Mello and Ann.12

Ann?13 Q.

Ann.14 A.

You don't know her last name?15 Q.Give me a second. You're embarrassing me.16 A.

I'll help you. Is it Murray?17 Q.

You got it.18 A.

MR. FOLLANSBEE: Off the record.19


(BY MR. FOLLANSBEE) The issue of contract21 Q.

compliance in the fall of 2010, did anybody22

suggest sitting down with Johnson Golf and23

finding out if there was a way to get the24


28

security in place?1

I don't recall.2 A.

Was there any discussion of any procedure,3 Q.

other than having a hearing by the Board of4

Selectmen, to determine whether or not Johnson5

was in compliance with the contract?6

I don't recall.7 A.

In 2010, were you made aware of any attempts on8 Q.

the part of Johnson Golf and the Town of Duxbury9

to resolve the litigation?10

I don't remember any specific attempts.11 A.

Did you ask anybody on staff or in town hall to12 Q.

get you copies of the audited financials that13

were of concern to you?14

My memory is that the issues that were believed15 A.

to be in noncompliance with regard to the16

contract were presented to you. I believe,17

you were at the meeting; and that Johnson Golf18

was given time to react or respond to any of19

those, and then the board evaluated those20

comments.21

MR. FOLLANSBEE: I'd ask that this be22

marked as the next exhibit, please. I believe23

it's Exhibit No. 2.24


29


marked.)2


(BY MR. FOLLANSBEE) Directing your attention4 Q.to what's been marked Exhibit No. 2. Do you5

recall receiving that on or about October 4,6

2010?7

I don't, specifically, recall receiving this.8 A.

Do you recall any written submission by9 Q.

Mr. Johnson to the Board of Selectmen at the10

hearing that took place on October 4, 2010?11

I believe, we did get documents from12 A.

Mr. Johnson -- not from Mr. Johnson, but from13

you, I think. I've never met Mr. Johnson.14

With regard to this document, do you have any15 Q.memory of reading the material that was provided16

by Johnson Golf at that meeting?17

I don't have any specific memory.18 A.

Well, directing your attention to page 3 -- and19 Q.

there is a list -- on page 3, there is items 120

through 8?21

Yes.22 A.

Do you recall being told that the surety bond23 Q.

issue was being resolved by the judge?24



9/40


30

I don't, specifically, recall that.1 A.

Do you recall a dialogue between yourself and me2 Q.

at the meeting about the judge having ordered a3

certain sum of security in the sum of a half a4

million dollars?5

Again, I don't, specifically, remember a detail6 A.

like that.7

Is there anything that could refresh your memory8 Q.

on that?9

If you have a copy of the board's decision, that10 A.

might refresh my memory.11

How about a copy of the transcript that was12 Q.

provided that night?13

MR. FOLLANSBEE: Could we mark that as14

the next exhibit?15


marked.)17


(BY MR. FOLLANSBEE) Sir, what's been marked as19 Q.

Exhibit No. 3 which you have before you now is a20

copy of the transcript.21

Go ahead.22 A.

And directing your attention to Exhibit No. 3,23 Q.

the transcript of the Duxbury selectmen's24


31

hearing, October 4, 2010, I'd direct you to1

pages 17 and 18.2

Okay.3 A.

And if you see those.4 Q.Do you have a question?5 A.

Does that refresh your memory as to being given6 Q.

what we've now marked as Exhibit No. 2 at the7

meeting?8

It would appear from this transcript that you9 A.

gave us a document.10

And did you read the document that we gave to11 Q.

you?12

I'm assuming that I did, at the time.13 A.

And you don't have any memory of it now?14 Q.

No.15 A.Well, did you --16 Q.


Was your concern over the security issue18 Q.

primarily the fact that Johnson was collecting19

money in advance, and the money might disappear20

if Johnson breached the contract and walked21

away?22

I would speculate that my concern would be23 A.

that, if a bond is required for performance,24


32

that my concern would be that monies collected1

in advance of services would be in jeopardy2

unless there was a performance bond in place.3

And had you made a determination yourself or4 Q.

sought to make a determination as to whether or5

not money was being collected in advance at that6

juncture in the fall of 2010?7

I can't recall that, specifically.8 A.

Now, subsequent to the hearing that took place9 Q.

on October 4th, do you recall making a decision10

several weeks later to declare that Johnson Golf11

was in default of its contract?12

Yes, I do remember that.13 A.

And did you look at the issue addressed in14 Q.

Exhibit No. 2 about whether or not the Town of15

Duxbury was in breach of contract due to the16

fact that it had torn down a residential17

structure on the property?18

That's in the first paragraph of Exhibit19

No. 2.20

It was my understanding that it was not a breach21 A.

of contract.22

And how did you come to that understanding?23 Q.

It was explained to myself as a Board of24 A.


33

Selectmen member by both the town manager an1

Robert Troy that the building had, or the pipes2

had frozen on more than one occasion under the3

management of Johnson Golf; and that the last4time that the pipes froze, that the damage5

resulting to the structure was greater than the6

value of the structure.7

And there was a determination by mutual8

agreement to remove the building. And then9

there was some sort of trade with Mr. Johnson,10

which I can't remember the details, in lieu of11

that.12

And did they give you anything in writing13 Q.

regarding that topic?14

If they did, I can't recall, specifically.15 A.But you do have a vivid memory of that?16 Q.

I remember, specifically; because in my17 A.

business, I deal with those types of situations18

all of the time.19

And you were familiar with, at that point, you20 Q.

had seen a copy of the contract which was21

Exhibit No. 1; correct?22

I'm not sure if I saw the contract. I saw the23 A.

copy of the contract during a review of that,24



10/40


34

when we had that hearing. I'm not sure if I1

ever read the contract prior to that date.2

But if the contract says all changes have to be3 Q.

in writing, would that be something that you4

would be familiar with, in your own5

experience?6

Uh-huh.7 A.

That's a yes or a no?8 Q.

Yes, sorry.9 A.

And at least, as you sit here today, you have10 Q.

no memory as to whether anybody ever represented11

to you that there was a written change order to12

the contract regarding the residential building;13

correct?14

I don't recall getting anything in writing.15 A.

And the representation to you by Mr. MacDonald16 Q.

and Mr. Troy regarding the frozen pipes, when17

did that take place?18

I hate to assume, but I'm assuming that it is in19 A.

conjunction with the general discussion of the20

hearing that we had.21

Well, the hearing includes a transcript which is22 Q.

Exhibit No. 3.23

Okay.24 A.


35

Do you have any memory that, at that hearing,1 Q.

somebody said to you, "We made a deal on that,"2

or was that a conversation that took place at3

some other time?4My guess is, if it's not in the transcript, I5 A.

would presume that it took place at another6

point in time.7

Was that in response to your question to them --8 Q.

meaning Troy and MacDonald -- regarding the9

destruction of this residence that's mentioned10

in the first paragraph of Mr. Johnson's letter11

of October 4th, Exhibit 2?12

I don't know if that specific paragraph prompted13 A.

their response to me.14

Well, in Mr. Johnson's letter to you, on page 115 Q.at the bottom, he indicates that Attorney Troy16

has provided the court with erroneous17

information verbally and in writing on a number18

of occasions.19

Was that a concern to you when you read20

it, at the time?21

No.22 A.

If your attorney was making misrepresentations,23 Q.

you wouldn't be concerned about that?24


36

I guess, I wasn't worried about the1 A.

representations that were being made to me by m2

own attorney.3

And when somebody calls that into question, that4 Q.

doesn't concern you?5

I guess my answer to that is, in a situation6 A.

where both attorneys and both sides aren't in7

agreement, it's not uncommon to have one party8

accusing another party of something that will9

ultimately be decided in a court of law.10

Have you ever been involved in litigation11 Q.

yourself?12

Yes.13 A.

And have you ever had a case in the14 Q.

Massachusetts Superior Courts?15

A Massachusetts court. I'm not sure if it was16 A.

superior or not.17

What town was it in?18 Q.

It would have been in Plymouth County.19 A.

What kind of case was it?20 Q.

It was a suit for specific performance on a21 A.

purchase and sale.22

That would have been superior court, as I23 Q.

understand it.24


37

Okay.1 A.

But maybe not.2 Q.

I'm not a lawyer.3 A.

How many years ago was that?4 Q.Oh, 25 maybe, a guess.5 A.

And other than that, have you had any other6 Q.

court cases, either individually or through your7

business?8

I was divorced.9 A.

We'll skip that.10 Q.

Any other civil cases?11

No.12 A.

Going back to Exhibit No. 2, prior to receiving13 Q.

Exhibit No. 2, had it come to your attention at14

all that the company CALM Golf that the town was15

seeking to award the contract to at North Hill16

had very limited assets?17

Yes.18 A.

When did that come to your attention?19 Q.

I don't know. I don't recall, I should say.20 A.

And was it a concern of yours --21 Q.

Well, first of all, had you been advised22

that CALM Golf, at the time that they bid in23

January of 2009, were reporting that they only24



11/40


38

had $169 in total assets?1

Do you want to repeat that question?2 A.

Yes.3 Q.

Had it been made known to you that, when4

CALM Golf bid in January of 2009, their bid5

document reported that they only had $169 in6

total assets?7


Go ahead.9

I have heard something to that effect, at some10 A.

point in time.11

Do you know from whom you heard that?12 Q.

Not for a certainty.13 A.

Having heard it, being in the business field14 Q.

yourself, did that raise concerns to you about15

CALM's ability to manage an asset like the North16

Hill Country Club?17

My assumption is that oftentimes corporations18 A.

are formed for new ventures, and that it's19

really the financial backing of the individuals20

that counts.21

And how did you come to that assumption?22 Q.

I see it on a day-to-day basis or on a regular23 A.

basis in all sorts of private ventures.24


39

Did you discuss your assumption with anybody1 Q.

else in town government, first of all?2

I don't recall, specifically.3 A.

Do you recall --4 Q.MR. FOLLANSBEE: Strike that.5

Did you ever discuss with Mr. MacDonald his6 Q.

decision to award a contract to CALM Golf?7


So did you ever say to Richard, "You know, I'm a9 Q.

little worried about CALM only has $169 in total10

assets. Are the principals going to sign11

something guaranteeing anything?"12

Did you ever have that discussion with13

him?14

I wouldn't have that kind of discussion with15 A.him.16

Well, would you have that discussion with17 Q.

anybody?18

In advance of that happening, no.19 A.

And was it your understanding --20 Q.


At or about the time that you voted to find22 Q.

Johnson in default of its contract, what was23

your understanding about what the next step in24


40

the process would be?1

I'm not sure if I understand that question.2 A.

It was probably not well-phrased. Let me try it3 Q.

again.4

In the fall of 2010, Johnson Golf was5

running the course, and you knew about that;6

correct?7

Correct.8 A.

And you knew that the town had received its9 Q.

rent for the past two years from Johnson;10

correct?11

I don't know that. I can't recall that now, but12 A.

go ahead.13

What was your understanding of what the next14 Q.

step was going to be once you took the step of15

voting on the 18th of October, 2010 to find16

Johnson in breach of its contract?17

My assumption is that the town manager would18 A.

take the next legal step from that point.19

And when you say the town manager was going --20 Q.

I'm sorry, my mistake, that town counsel was21 A.

going to take the next legal step after that22

point.23

And the town counsel was Mr. Troy; correct?24 Q.


41


And did he discuss with you what the next step2 Q.

was going to be?3

I don't have a specific memory of that4 A.conversation.5

Did anyone discuss with you -- whether it was6 Q.

Mr. MacDonald or Mr. Troy -- that the next step7

was going to be to undertake an eviction8

proceeding in Plymouth District Court against9

Johnson Golf?10

I'm sure, as selectmen, we received notice to11 A.

that effect.12

Would the selectmen, under the Duxbury by-law,13 Q.

would the selectmen have to approve of counsel14

engaging in a new lawsuit against Johnson Golf15

Management?16

My assumption or my reading of the Town Manage17 A.

Act is that the town manager supervises the18

day-to-day activities of town counsel. He keeps19

us informed as to pending litigation. And the20

Board of Selectmen doesn't approve or disapprove21

on a day-to-day basis of what his actions are on22

an ongoing case.23

I'm not talking about an ongoing case. I'm24 Q.



12/40


42

talking about a new case which would be an1

eviction proceeding in Plymouth District Court2

in the fall of 2010.3

From my humble nonlegal, it's all one case. In4 A.

other words, it's all about the same matter; so5

from my perspective, it's you make a move, town6

makes a move and so on and so on.7

MR. FOLLANSBEE: Could I have that marked8

as the next exhibit?9


marked.)11


(BY MR. FOLLANSBEE) Sir, directing your13 Q.

attention to what's been now marked as Exhibit14

No. 4. And there are some highlighted15

underlined portions on page 2 that I would16

direct your attention to.17

Okay.18 A.

You are familiar with this as being an excerpt19 Q.

of the by-laws of the Town of Duxbury;20

correct?21

Very, very familiar.22 A.

You're very familiar?23 Q.

Yes.24 A.


43

Now, the by-laws themselves say that no town1 Q.

department or official can request the services2

of town counsel without your approval;3

correct?43.1.5 says that, correct.5 A.

And is it your testimony that that somehow is6 Q.

negated if there is previous litigation between7

the parties?8

My opinion is that this can't be read as a9 A.

single document by itself.10

What other document would you like to read with11 Q.

it?12

The Town Manager Act.13 A.

The act providing for a town manager in the Town14 Q.

of Duxbury?15

Correct.16 A.

MR. FOLLANSBEE: Let's mark that as the17

next exhibit then.18


marked.)20



to what's been now marked as Exhibit No. 5, the23

Town Manager Act in Duxbury.24


44

Would you take a few minutes to look at1

that and tell me what is there in this document2

that supersedes the by-laws, which were Exhibit3

No. 4, regarding the use of town counsel?4


On number 15, "The town manager shall oversee6 A.

the activities of town counsel under the7

direction of the Board of Selectmen."8

And the direction of the Board of Selectmen, in9 Q.

this instance, was to do what?10

Well, what specific instance are you talking11 A.

about?12

After you made the determination that Johnson13 Q.

Golf was in a default position with regard to14

its contract.15

I think I said that from, at least my eyes, as a16 A.

selectman, a pending legal case between the town17

and another party, once the Board of Selectmen18

is aware of and approves of that case19

proceeding, it doesn't deal with it on a20

day-to-day basis.21

Now, with regard to a new case, if a new case22 Q.

comes in -- and I'm not talking about Johnson23

Golf, I'm just talking about any case -- is it24


45

your testimony that it would require the Board1

of Selectmen to take an affirmative step to say2

town counsel should be engaged to handle this3

case?4My reading of it or the practice of it is that5 A.

the Board of Selectmen are aware, but the6

day-to-day utilization of town counsel is being7

managed by the town manager.8

Example, I'm elaborating, but example,9

somebody needs a --10

Please continue to elaborate.11 Q.

-- somebody needs a conflict of interest12 A.

determination. They don't need to come to the13

Board of Selectmen and have us say to Bob Troy,14

yes, you may have a conflict of interest15

opinion from town counsel. They go to the town16

manager, and the town manager authorizes that.17

Now, with regard to this particular case, a18 Q.

decision was made, at some point, to refer this19

matter to the town's insurance company;20

correct?21

I'm assuming so.22 A.

And do you know who made that decision?23 Q.

No, I don't.24 A.



13/40


46

Did you make that decision?1 Q.

Absolutely not.2 A.

Well, did the Board of Selectmen make that3 Q.

decision?4

Not to my knowledge.5 A.

Can the Board of Selectmen take action without6 Q.

you knowing about it?7

I'm just saying that, to my knowledge, the8 A.

Board of Selectmen didn't have a vote on9

submitting this to an insurance company.10

And let me go back.11 Q.

For the years 2010 and 2011, you served12

as the chairperson of the Board of Selectmen;13

correct?14

Correct.15 A.

Now, after this hearing took place in the fall16 Q.

of 2010 in which a declaration by the selectmen17

was that Johnson was in default of its contract,18

did you attend a meeting with the Office of the19

Inspector General together with other20

representatives from Duxbury?21

Yes.22 A.

And do you know when that took place?23 Q.

I believe, in December of 2010.24 A.


47

And at that time, by December of 2010, had the1 Q.

Town of Duxbury already decided to rescind its2

award to CALM Golf?3

I don't have a time line of sequences.4 A.Was that discussed with you by Mr. MacDonald5 Q.

and/or Mr. Troy, that there was going to be a6

rescission of the award to CALM Golf?7

I don't, specifically, recall.8 A.

Were you puzzled by the fact that, if you were9 Q.

going to boot Johnson Golf out of town, that10

CALM Golf wouldn't automatically take over?11

If I had to reach in on my memory, my assumption12 A.

was that the town was attempting to rebid the13

project with a proposal; and that whoever was14

the appropriate party on the rebid, that they15

would manage the course.16

Well, why would the town want to rebid if they17 Q.

had already awarded the contract to CALM Golf?18

I'm not sure of the specifics.19 A.

Well, you knew that they had awarded the20 Q.

contract to CALM Golf; correct?21

Correct.22 A.

And you knew that CALM Golf was operating23 Q.

another golf course in the area; didn't you?24


48

I didn't know that.1 A.

Well, did you know anything about CALM Golf at2 Q.

all?3

No.4 A.

Did anybody ever tell you anything about5 Q.

Mr. Lanzetta and his reputation in the golf6

community?7

Not specifically.8 A.

Did they tell you anything, in general, about9 Q.

Mr. Lanzetta and CALM Golf?10

Not specifically.11 A.

Who told you --12 Q.


Did somebody tell you, We've made a decision,14 Q.

and we're going to rebid this thing, and we're15

not giving it to CALM Golf?16

I would assume that that was told to me, at17 A.

some point in time. I just don't remember18

when.19

I'll elaborate. The day-to-day operation20

of the community of Duxbury is run by the town21

manager. It is not run by the Board of22

Selectmen. We are the policymakers of the town23

We don't hire, fire, award contracts, sign24


49

contracts. All of those things are done by the1

town manager.2

You don't sign contracts?3 Q.

Well, I may sign some, I guess. I'll take that4 A.back. We don't sign many contracts. You are5

right. We signed that contract.6

Well, under the Town Manager Act, that's7 Q.

Exhibit 5, and directing your attention to --8

the pages are numbered in the bottom center of9

each page -- page 83, and if you look at clause10

13 which coincidentally is underlined, it11

indicates that the contracts are subject to12

execution by the Board of Selectmen; correct?13

That's what line 13 says.14 A.

And what it, specifically, says is that the15 Q.town manager can negotiate all of the16

contracts, but the Board of Selectmen signs17

them, correct?18

That's what it says.19 A.

And is it your testimony that, although it says20 Q.

that, that's not what Duxbury does?21

I would say that the Board of Selectmen does not22 A.

sign every single contract.23

Well, you're not the first person to say that;24 Q.



14/40


50

so maybe you can help me out.1

Who makes the determination as to which2

contracts the Board of Selectmen does sign and3

which ones it doesn't sign?4

The Board of Selectmen are told by either town5 A.

counsel or the town manager what the board,6

specifically, needs to sign as a board versus7

what Richard signs as town manager.8

It's your memory that you had a meeting with the9 Q.

Inspector General in the December time frame of10

2010; correct?11

Yes.12 A.

And who was at that meeting?13 Q.

It was myself, town counsel, town manager,14 A.

Gordon Cushing. I don't think there was anybody15

else, but there could have been.16

And given that you are more of the policy guy17 Q.

rather than the day-to-day guy, why were you18

attending the meeting?19

I was attending the meeting as chair of the20 A.

Board of Selectmen to answer questions and21

address the IG on anything that he might like to22

ask me.23

And had you ever met the IG before?24 Q.


51

No.1 A.

Other than this one time, have you ever been to2 Q.

the Office of the Inspector General?3

Absolutely not.4 A.Do you have a good memory as to what transpired5 Q.

at this meeting?6

You'll tell me later on.7 A.

What do you remember about the meeting?8 Q.

We went to the meeting to explain the situation9 A.

that the town was in regarding Johnson Golf,10

the 30B bidding process and to solicit their11

opinion as to the proper way to proceed from12

this date.13

And so by early December of 2010, is it fair to14 Q.

say that the town had reached the end of the15

road as far as giving a contract to CALM Golf?16


I wouldn't -- I don't know the answer to that.18 A.

Well, did you speak at the meeting?19 Q.

I believe so.20 A.

And what input did you have in the meeting?21 Q.

What did you have to say at the meeting?22

I think I probably voiced my frustration to the23 A.

Inspector General with regard to the 30B24


52

bidding process.1

Living in the private sector, as I do,2

and being in business for 42 years, the3

decision of my clients is based upon4

performance and based upon what they think is5

in their best interests. And I think that a6

municipality, in this particular case, gets7

stuck in legal wranglings over details that the8

rest of us in the private industry don't have to9

go through.10

So in the private industry, is it your testimony11 Q.

that, if you want to give a contract to any12

particular person, you just give it to them?13

It's your decision. If you decide that you want14 A.

to hire Shawn Dahlen & Company, Inc. to build15

your house, you hire Shawn Dahlen & Company,16

Inc. If you decide you don't like me, you17

decide to hire whoever else you would like to18

hire.19

Now, is it your understanding that there were20 Q.

some folks in Duxbury that weren't happy with21

Johnson Golf and didn't want him or Johnson Golf22

Management running that golf course?23



53

You can answer.1 Q.

I heard those comments; not from individuals,2 A.

but I heard them, in general.3

Now, in general, what had you heard?4 Q.I heard there was what I'll classify as whining5 A.

over tee times and other mundane things.6

And so when you heard that there were people in7 Q.

Duxbury who were doing the whining about the tee8

times; correct?9

I'm assuming so.10 A.

You weren't thinking -- I mean, just so I have11 Q.

it right -- you're not suggesting that the12

people that work for or run Johnson Golf13

Management were whining about tee times; are14

you?15

No, no, no. I've never spoken to anybody that16 A.

works for Johnson Golf Management or17

Mr. Johnson.18

And what was your reaction to what you heard19 Q.

about these people whining about their tee20

times?21

No specific reaction.22 A.

In the private sector, would that be a reason23 Q.

not to award a contract to a particular person24



15/40


16/40


58

And when you told him that you thought that the1 Q.

town had conducted itself in a proper manner,2

what were you relying on for your conclusion3

that the town had behaved in a proper manner?4

I am -- and I am including today -- I am5 A.

convinced that there is nobody that was6

involved in the process that, specifically,7

wanted Mr. Johnson not to be awarded the bid.8

How do you explain Mr. MacDonald's decision to9 Q.award a contract to CALM Golf when CALM Golf had10

virtually no experience and no assets?11

You will have to ask Mr. MacDonald.12 A.

I did.13 Q.

Then why are you asking me?14 A.

Because you indicated that everything was done15 Q.

in a proper manner. I'm simply asking, what was16

proper about that?17

Unless I had the RFP requirements and18 A.

qualifications in which to submit a proposal --19

Like I said before, in my world,20

oftentimes businesspeople will get together and21

do a joint venture. And the day you started22

your law practice with your partner, you had X23

in the account. It isn't necessarily the same24


59

amount that you have in your account today,1

after many years of business.2


(Discussion off the record.)4MR. KREIGER: How about a break, a couple5

of minute break?6

MR. FOLLANSBEE: That's fine.7

(Recess taken.)8

(BY MR. FOLLANSBEE) I think when we broke, I9 Q.

was asking you about the meeting with the10

Inspector General in early December of 2010,11

and you indicated that you voiced your12

frustration.13

And my question was, did you have14

anything else to say at the meeting?15

I think I answered that question with regards16 A.

to that. To the best of my knowledge then and17

to the best of my knowledge today, that there18

were no inappropriate actions by any town19

officials, to my knowledge, with regards to this20

process.21

And is that what you told the Inspector22 Q.

General?23

Yes.24 A.


60

And did anybody at the Inspector General's1 Q.

office say to you, when this was first done in2

late 2008, we -- meaning the Inspector3

General -- advise the town to reject all of the4

bids?5

No. We had no discussions regarding that.6 A.

Have you discussed that issue -- the rejection7 Q.

of the bids in December of '08 -- have you8

discussed that with Mr. MacDonald or Mr. Troy,9

Mr. Cushing?10

I'm sure I have, but I can't remember the11 A.

conversation.12

Did any of them ever tell you that the13 Q.

Inspector General had told them to reject all of14

the bids?15

I don't have any specific recall to that.16 A.

Do you have a general recall on that?17 Q.

Do you want to give me the list of names again?18 A.

Yes. Cushing, MacDonald or Troy.19 Q.

And the question was, did any of them20

tell you that the Inspector General had told21

them to reject all of the bids in the December22

time frame of 2008?23

My general memory is that Bob Troy would have24 A.


61

been the one that I talked to about it; and the1

specifics about what was said or wasn't said, I2

don't recall.3

So you have no memory --4 Q.Well, did Bob Troy ever tell you why the5

bids were rejected?6

My memory is that your bids were rejected7 A.

because someone had opened -- I probably won8

say this the right way -- but the dollar amount9

or the amount that was being proposed, and10

people were privy to that before the evaluations11

were concluded.12

And who told you that?13 Q.

I'll make an assumption that it was Bob Troy.14 A.

Now, when you met with the Inspector General,15 Q.you indicated a few minutes ago, are you16

suggesting that it was the Inspector General's17

suggestion that you do an IFB instead of an18

RFP?19

No. I'm not making that assumption -- I mean,20 A.

I'm not making that suggestion. There were no21

specific, at that meeting, there were no22

specific suggestions by the Inspector General,23

just general discussion.24



17/40


62

In the fall of 2010, did you become aware that1 Q.

the court -- meaning Judge Smith -- had denied2

Duxbury's motion for summary judgment?3

Summary judgment of what?4 A.

Well, had you been advised that the town was5 Q.

trying to have the case thrown out of court in6

the fall of 2010?7

I don't remember the specific time, but that was8 A.

one of many comments.9

And when you say it was one of many comments,10 Q.

who made the comment or how did you come by the11

knowledge that the town was seeking to have the12

case terminated?13

We were routinely informed by Mr. Troy and14 A.

Mr. MacDonald of the status of the case.15

And in the fall of 2010, they indicated that the16 Q.

judge was having a hearing?17

I can't possibly tell you the time frame. I18 A.

couldn't remember Ann's last name, never mind19

that.20

MR. FOLLANSBEE: Could I have this marked21

as the next exhibit, please?22


marked.)24


63


(BY MR. FOLLANSBEE) Sir, directing your2 Q.

attention to what's been now marked as Exhibit3

6. And this is an order of the court dated4November 24, 2010 denying --5

What was the date again?6 A.

It's on the back page. It should be dated7 Q.

November 24, 2010.8

Yes.9 A.

Have you ever been given a copy of this decision10 Q.

prior to today?11

I'm sure I have.12 A.

And when you did receive a copy of it, did you13 Q.

familiarize yourself with it and read it?14

Probably, at the time.15 A.And was it your understanding by, at least,16 Q.

December of 2010 that the town's effort to have17

the case terminated was not successful and that18

the case would continue?19

Yes.20 A.

Did you give consideration, at that point, to21 Q.

awarding a contract to Johnson Golf Management22

and concluding the case that way?23

No.24 A.


64

Why is that?1 Q.

I don't recall that as being an option.2 A.

What did you think your options were in December3 Q.

of 2010?4

Options regarding what?5 A.

Regarding what to do with the North Hill6 Q.

contract.7

The North Hill contract existed as it did on --8 A.

Let me rephrase that. My understanding9

of this, basically, means that the case cannot10

be thrown out of court and that it will11

continue to move on to a trial date, that12

that's all it means as part of what appears to13

me in a legal system as 400 moves to get to the14

endpoint.15

And was it ever a conversation that the case16 Q.

could settle before it moved to a trial?17


Was there ever a possibility? I don't know.19 A.

Had it ever been brought up? Had the selectmen20 Q.

ever brought that topic up with town counsel or21

with Mr. MacDonald?22

In my tenure, I don't believe we ever,23 A.

specifically, discussed settling the case.24


65

And do you know any reason why you never even1 Q.

discussed that?2

I was unaware that that was an option.3 A.

Had you ever been advised that the Johnson Golf4 Q.side of the litigation had proposed various5

settlements?6

Not until a subsequent point in time.7 A.

When did you find out that Johnson Golf had8 Q.

proposed various settlements?9

More recently.10 A.

More recently, like, 2012?11 Q.

It could have been '11 or '12.12 A.

How did you find that out?13 Q.

I don't recall, specifically.14 A.

MR. KESTEN: I advise you not to answer15

if it implicates executive session with me or16

Mr. Kreiger or both.17

MR. FOLLANSBEE: That's a good point.18

MR. KESTEN: Thank you, agreed. It was a19

great point. I think it's a great point.20

MR. FOLLANSBEE: It was a great point.21

Let's just get it over with.22

(BY MR. FOLLANSBEE) With Attorney Troy, had23 Q.

the selectmen ever discussed getting rid of this24



18/40


66

case by virtue of a settlement?1

I don't have any specific memory of that.2 A.

There was at least some discussion, as I recall,3 Q.

from looking at the minutes of the Board of4

Selectmen, where one of your colleagues,5

Mr. Donato, was certainly taking the minority6

view about what was going on with this7

litigation.8

Is that a fair statement?9


You'd have to refresh my memory with the11 A.

specific vote of the board.12

Well, weren't there occasions where Mr. Donato13 Q.

was actually in confrontations with Mr. Troy14

regarding this litigation at Board of Selectmen15

public hearings?16

Yes.17 A.

And how did you view that, as the chairman of18 Q.

the Board of Selectmen, at the time?19


The two disagree.21 A.

Did you ever consider the point of view being22 Q.

expressed by Mr. Donato may be more correct23

than the point of view being expressed by24


67

Mr. Troy?1

I was putting my trust in my town counsel.2 A.

Now, I'm sure you -- well, I shouldn't say "I'm3 Q.

sure" -- do you recall at the selectmen's4hearing that an issue came up about who drafted5

the RFP?6

Which hearing?7 A.

The hearing before the Board of Selectmen on8 Q.

October 4, 2010.9

I don't, specifically, recall that.10 A.

Do you have any memory of Mr. Donato questioning11 Q.

Mr. Troy and Mr. MacDonald about who drafted the12

RFP?13

No.14 A.

Have you read any newspaper accounts about that15 Q.topic recently?16

I can't be specific.17 A.

Do you read the --18 Q.

Duxbury Clipper?19 A.

-- the Duxbury Clipper?20 Q.

Yes.21 A.

You are often quoted in the Duxbury Clipper; is22 Q.

that correct?23

I may be.24 A.


68

And do you recall reading any newspaper accounts1 Q.

concerning the fact that, although Attorney Troy2

said they hired an outside consultant to draft3

the RFP, that no such consultant was really4

hired?5

I'm aware of that statement.6 A.

And at the meeting, the selectmen's hearing in7 Q.

October of 2010, do you recall the issue of this8

consultant being addressed?9

Yes.10 A.

And do you recall Attorney Troy saying, "The11 Q.

honest answer is town hall had nothing to do12

with drafting the RFP"?13

I don't remember the specific words.14 A.

If we look at the exhibit, Exhibit No. 3.15 Q.

Which one?16 A.

MR. KREIGER: It's Exhibit 3.17

Right. It's Exhibit No. 3.18 Q.

Okay.19 A.

And if you go to pages 64 and 65.20 Q.

Okay.21 A.

Just read the underlined portions to yourself,22 Q.

and then I'll have a few questions about it.23

Okay.24 A.


69

MR. KREIGER: Off the record.1


(BY MR. FOLLANSBEE) Have you had a chance to3 Q.

look at that?4Okay. Go ahead.5 A.

You've had a chance to look at it?6 Q.

Yes.7 A.

And you remember this exchange now that you've8 Q.

had a chance to review the transcript?9

Yes.10 A.

And was it your understanding, at the time,11 Q.

that Attorney Troy was saying no individual in12

town government had anything to do with drafting13

this document? It was done 100 percent by a14

consultant?15

My understanding --16 A.


-- my understanding is that, whatever Mr. Tro18 A.

said in this deposition, he probably said.19

That isn't a deposition.20 Q.

I mean, sorry, whatever he said in this21 A.

transcript is what he probably said.22

Well, I think that we can all agree that folks23 Q.

like this gentleman, they take the words down24



19/40


70

and get them correct.1

That's what I'm saying. I'm assuming this is2 A.

correct. I'm not disagreeing.3

But as you were listening to this and reviewing4 Q.

it yourself, is it your understanding that what5

Troy was saying is no one in Duxbury town6

government wrote this RFP. It was done 1007

percent by an outside consultant?8


Yes.10 A.

And you came away from the meeting that evening11 Q.

believing that Attorney Troy was telling you the12

truth and that a consultant had drafted this13

document; correct?14

Yes.15 A.

And did anybody ever tell you subsequent to this16 Q.

that that wasn't true?17

Well, my understanding is, at the current time,18 A.

that --19

MR. KREIGER: Wait, the question was20

narrower than that.21

May I please have the question read22

back?23

(Question read.)24


71

Yes.1 A.

And who told you that it wasn't true?2 Q.

I don't recall the specific person.3 A.

And when did that transpire, that you became4 Q.aware or that somebody advised you that that5

wasn't true?6

More recently.7 A.

How recent?8 Q.

Within the last six months, as a guess.9 A.

And is it your testimony that, prior to the last10 Q.

six months, you were unaware that the consultant11

had not drafted that document?12


Do you have an e-mail, [email protected]?14 Q.

Uh-huh.15 A.Is that a yes?16 Q.

Yes. Oh, an old e-mail address. I don't get17 A.

e-mail there any more.18

Where do you get your e-mail now?19 Q.

[email protected] A.

And for how long have you had that e-mail21 Q.

address?22

A couple of years.23 A.

And so then in 2010, was your e-mail address24 Q.


72

[email protected]?1

I couldn't tell you when I switched.2 A.

Did you have your e-mail forwarded when you3 Q.

switched?4

Yes.5 A.


marked as the next exhibit.7


marked.)9


(BY MR. FOLLANSBEE) Directing your attention to11 Q.

what's been marked as Exhibit No. 7. This was12

also marked at Mr. Cushing's deposition,13

coincidentally, as Exhibit No. 7.14

Do you remember receiving this e-mail on15

or about October 13, 2010 from Mr. Cushing?16

I don't remember it, but I assume I did.17 A.

And in it, if you take a look at the second18 Q.

page --19

Number 8?20 A.

I wasn't going to suggest number 8. I was going21 Q.

to suggest number 4.22

Okay.23 A.

MR. KREIGER: What's the question?24


73

The question is, did you become aware on or1 Q.

about the 13th of October of 2010 from2

Mr. Cushing that the RFP was actually drafted by3

a lot of folks in Duxbury town government?4Yes.5 A.

So it wasn't something that you just found out6 Q.

about the last six months or so. You knew it7

shortly after the meeting of October 4, 2010;8

correct?9

I would make the assumption that, if I receive10 A.

this, I would have known it.11

And this document is dated some five days12 Q.

before you made the decision to rescind --13

sorry, not rescind -- to terminate the contract14

of Johnson Golf due to breach of contract;15

correct?16

I don't have the decision date of that in front17 A.

of me.18

Okay.19 Q.

Now, directing your attention to20

paragraph No. 8. Paragraph No. 8 indicates that21

the consultant didn't make any changes or22

corrections; correct?23




20/40


74

And directing your attention to paragraph 7,1 Q.

it indicated that town counsel was the person2

who created the language "comparable business3

entity"?4

That's what the paragraph says.5 A.

And so that you became aware of that on or about6 Q.

the time of this e-mail; correct?7

If I received it and read it, I would assume8 A.

so.9

And if you received an e-mail from Gordon10 Q.

Cushing saying Here is my response to11

Mr. Donato's request to whom actually wrote the12

RFP, it would get your attention enough to read13

it; wouldn't it?14

More than likely.15 A.

And it had been an issue at the selectmen's16 Q.

hearing a week earlier than this; right?17

What had been an issue?18 A.

About who wrote the RFP.19 Q.

It wasn't an issue to me.20 A.

But the issue had been addressed, and Mr. Troy21 Q.

had indicated that an outside consultant had22

done the whole thing; correct?23

Correct. But it had nothing to do with what we24 A.


75

were having the hearing on.1

And what did you think had something to do with2 Q.

the hearing?3

We were having the hearing on whether there were4 A.any inconsistencies in the contract with Johnson5

Golf and the Town of Duxbury.6

And you were trying to be fair and impartial;7 Q.

correct?8

Fair and impartial about what?9 A.

About whatever conclusion you were going to10 Q.

draw, you wanted to hear both sides?11

Yes.12 A.

And make a fair and impartial decision;13 Q.

correct?14

Correct, correct.15 A.In the fall and up until December of 2010, had16 Q.

you discussed with Attorney Troy whether or not17

there was any evidence shown so far about bad18

faith on the part of the Town of Duxbury?19

If I did so, it would have been under executive20 A.

session.21

MR. KREIGER: Go ahead.22

And after the summary judgment had been denied23 Q.

and you were meeting with the Inspector24


76

General's office, did anybody on behalf of the1

town tell the Inspector General that the price2

proposals had been opened and that one of the3

evaluators had seen the prices prior to4

completing his evaluation?5

I have a vague recollection. I have a vague6 A.

memory of that, yes.7

And do you know who said that to the Inspector8 Q.

General's office?9

I don't know for a fact, but I would assume that10 A.

it would be Bob Troy.11

Why do you assume that?12 Q.

Because he was the most knowledgeable of all of13 A.

us in the room regarding the case.14

Did he do most of the talking that day on behalf15 Q.

of the town?16

I would presume, yes.17 A.

Do you have a memory as to who carried the ball18 Q.

for the town that day?19

I would presume, Bob.20 A.

MR. KREIGER: Well, you were asked if you21

have a memory of it.22

I don't have a specific memory of it.23 A.

Do you remember Gordon Cushing saying anything24 Q.


77

to the Inspector General that day?1

I'm assuming he did; but I don't remember,2 A.

specifically, what he told the Attorney3

General.4MR. KESTEN: Inspector General.5

The Inspector General. I'll get it right one of6 A.

these days. It's a 50/50 chance.7




marked.)11



to Exhibit No. 8, the second paragraph, where14

it indicates, according to the town, and then it15

describes two things.16

Do you remember who on behalf of the Town17

of Duxbury gave this information to the18

Inspector General?19

I do not.20 A.

Did you?21 Q.

Not to my memory.22 A.

Did anyone at that meeting tell the Inspector23 Q.

General that the town didn't know about the24



21/40


78

insubstantial assets of CALM Golf?1

I don't recall that kind of detail.2 A.



MR. FOLLANSBEE: I'd ask that that be5



marked.)8


(BY MR. FOLLANSBEE) Now, directing your10 Q.

attention to the second page of what's been11

marked as Exhibit No. 9, it indicates in the12

footnote that "The town informed this office it13

did not know that the highest proposal lacked14

the assets and equipment to perform the15

contract."16

Do you know who made that representation17

to the Inspector General?18

No idea.19 A.

You knew, by the time that you had the meeting20 Q.

with the Inspector General in December of 2010,21

you knew that CALM's proposal showed that they22

had very limited assets and no equipment;23

correct?24


79

I don't know when I knew any specifics about1 A.

CALM or with respect to that date.2

Well, if I suggested to you that Mr. MacDonald3 Q.

had rejected all of the bids, again, on4November 24, 2010, does that comport with your5

memory as to what information you had, at that6

time?7


I don't have any memory, specific memory, of the9 A.

date that he rejected CALM Golf.10

Shortly after Exhibits 8 and 9 were received by11 Q.

the town, the town elected to go forward with an12

IFB; correct?13

Correct.14 A.

And were you aware of that procedure, the IFB15 Q.procedure?16

Yes.17 A.

And you indicated that you thought it was the18 Q.

preferred way to go rather than an RFP?19


It seemed simpler and less complex.21 A.

Do you know whose idea, who in the Town of22 Q.

Duxbury decided to use the IFB process rather23

than the RFP process in 2011?24


80

No.1 A.

And when you say it seemed simpler, what was2 Q.

simpler about the IFB process?3

My understanding is, it doesn't have an4 A.

evaluation process in terms of people looking5

at it and then making assumptions of the6

paperwork, that you either meet specific7

criteria that are outlined in it or you don't.8

It's a simple --9

Did anybody in town government discuss with you10 Q.

what was going to be put into the IFB --11

No.12 A.

-- for running the golf course in 2011?13 Q.

No, no.14 A.

Did you review the IFB yourself, at any point?15 Q.

No.16 A.

Did anybody talk to you about, We're going to17 Q.

put some language in the IFB to make sure that18

nobody can sue the town?19

No.20 A.

Did you discuss the North Hill or a possibility21 Q.

of the North Hill Golf Course contract with22

Emmett Sheehan in the period between January 1,23

2011 and the end of February of 2011?24


81

You'd have to recreate something for me to look1 A.

at the dates.2

Well, let me ask it more generally.3 Q.

Did you ever discuss with Emmett Sheehan4the possibility of him bidding again on the5

North Hill Golf Course contract?6

Bidding again from when?7 A.

After 2010.8 Q.

Yes.9 A.

And what's your memory of that conversation?10 Q.

My memory of that conversation is, I asked him11 A.

why he did not submit a bid.12

Well, what made you think that he was going to13 Q.

submit a bid?14

Because my memory had said that he had submitte15 A.a bid at one of the previous bids.16

And I'll be more direct about the conversation.17 Q.

Do you remember attending the bid opening18

in February of 2011?19

I don't.20 A.

Have you attended any bid openings for the North21 Q.

Hill Golf Course contract?22

I cannot remember attending any. What was the23 A.

date again, please?24



22/40


82

Thursday, February 17, 2011 at 2:00 p.m.1 Q.

Thursday, February what?2 A.

17th, 2011 at 2:00 p.m.3 Q.

MR. KREIGER: Shawn, the question is4

just, do you remember?5

No. Makes that easy.6 A.

Have you ever attended a bid opening at the7 Q.

Office of Inspectional Services at 878 Tremont8

Street in Duxbury?9


Do you recall saying to Mr. Sheehan, "What's the11 Q.

matter, Emmett? Did you get cold feet?" About12

his decision not to submit a bid for the North13

Hill Golf Course contract?14


So is it possible that you did say that?16 Q.

I don't ever remember being at a bid opening.17 A.

Other than present counsel, have you ever18 Q.

discussed the issue of a bid opening and19

comments you may or may not have made to20

Mr. Sheehan with anybody in the past two21

years?22

Say that again.23 A.

Yes.24 Q.


83

Other than conversations that you've had1

with counsel, have you discussed with anyone an2

allegation that you made a statement regarding3

Emmett Sheehan getting cold feet and not4bidding?5

Yes.6 A.

With whom did you have that discussion?7 Q.

Scott Lambiagase.8 A.

And when did you have that conversation with9 Q.

Scott?10

After I read somebody else's deposition where11 A.

that comment was made in there. I said -- I12

called him up to ask him, had I ever gone to a13

bid opening? Because I didn't have any memory14

of that.15

And what did Scott tell you?16 Q.

Scott couldn't remember having a bid opening.17 A.

His comment was, "We didn't have any bids to18

open;" so he didn't understand why there would19

be a bid opening.20

The bid opening was scheduled for Thursday,21 Q.

February 17, 2011 at 2:00 p.m.; correct?22

I wouldn't know.23 A.

MR. FOLLANSBEE: Could I have that marked24


84

as the next exhibit, please?1


marked.)3



to Exhibit No. 10, which is the IFB for the6

North Hill Golf Course and Country Club,7

Thursday, February 17th bid opening date.8

Have you ever reviewed this document9

before?10

I did, at some point.11 A.

And did you become aware that this document12 Q.

required a bid bond of $20,000?13


Was he aware when?15

MR. FOLLANSBEE: At any time, has he been16

aware of that.17

If the document requires one, I was aware that18 A.

a document required one, at some point in time.19

I just don't know if this is the document or20

not.21

And with regard to the issue of a bid bond, do22 Q.

you recall discussing that, at any time, or23

having a conversation about that, at any time,24


85

with Emmett Sheehan?1

Yes.2 A.

And where did that take place?3 Q.

In the Duxbury cemetery.4 A.And what did he tell you about that?5 Q.

I, specifically, was walking in the cemetery6 A.

with a couple of cemetery trustees, which he is7

one of them, and several other townspeople8

reviewing some land swaps that we were preparin9

for a town meeting vote. And I said to Emmett,10

"I heard you did not submit a bid. How come?"11

And he said to me, "Because they required a bid12

bond, and I couldn't get one."13

MR. FOLLANSBEE: I'd ask that that be14



marked.)17


(BY MR. FOLLANSBEE) Do you have Exhibit 11 in19 Q.

front of you?20

Yes.21 A.

Directing your attention to the second page, if22 Q.

you could read to yourself paragraph 3.23

Okay.24 A.



23/40


86

Is it your testimony that you were not at the1 Q.

bid opening on February 17th?2

I could tell you, I have no recall; and it's3 A.

also not on my calendar.4

And as far as the quote attributed to you, "What5 Q.

happened Emmett, did you get cold feet?" Is it6

your testimony that you never said that to7

Emmett Sheehan?8

To the best of my knowledge, no, since I don't9 A.believe that I was there.10

And this was signed on March 24, 2011, by11 Q.

Mr. Laramee who is sitting here.12

Is it possible that you were there and13

Mr. Laramee is correct?14

Anything is possible.15 A.

You just don't have a memory of being there; is16 Q.

that it?17

I have no memory, and it's also not on my18 A.

calendar.19

While you have your calendar in front of you,20 Q.

does your calendar indicate what day that you21

had the meeting with the Inspector General's22

office in the first week of --23

You have to give me a date to shoot for.24 A.


87

Yes. The first week of December 2010.1 Q.

December 6th, 10:00 a.m.2 A.

And do you know how long that meeting took3 Q.

place?4I have no idea.5 A.

Were you there for several hours?6 Q.

One hour, two hours max. I don't think it was7 A.

more than two hours.8

After the February IFB resulted in no bidders,9 Q.

did anybody discuss with you the concept of10

getting rid of the bid bond?11

No.12 A.

Did you have any discussion with anybody about13 Q.

what should be in the next IFB in order to14

attract some potential bids?15

My memory is, I either asked Bob Troy or16 A.

Richard if we -- if there was a problem getting17

a bid bond, therefore, we got no bids, do we18

need a bid bond to protect the interest of the19

town? Since a bid bond -- what I was told -- is20

a bid bond, basically, requires the bidder to21

perform on the bid. And our problem was that we22

couldn't get people to bid.23

And at that point, your memory was that Johnson24 Q.


88

Golf was running the golf course, and they had1

$200,000 in security posted for the town;2

correct?3

The bid bond and security have nothing to do4 A.

with each other.5

I understand.6 Q.

I'm just saying, at that time, in7

February of 2011, Johnson was running the golf8

course?9

Yes.10 A.

And they had security of $200,000; correct?11 Q.

I'll take your word for it. I don't remember12 A.

that.13

Well, security was certainly a very important14 Q.

issue for you; wasn't it?15

Right.16 A.

I don't ultimately remember what17

happened after the Board of Selectmen made its18

decision as to ultimately did Johnson post a19

bond.20

You don't know whether they ever did or21 Q.

didn't?22

Correct. I don't have a specific memory of23 A.

it.24


89

Now, you became aware that the second time they1 Q.

did the IFB, they took the bid bond out;2

correct?3

Correct.4 A.And when they did that, they ended up with one5 Q.

bidder; correct?6

That's my understanding.7 A.

And your understanding is also that the bidder8 Q.

was a newly formed corporation called Pilgrim9

Golf; correct?10

Correct.11 A.

And that that was owned by Mr. Emmett Sheehan;12 Q.

correct?13

I'm assuming that he was one of the principals,14 A.

yes.15

Well, are you assuming that there are some other16 Q.

principals?17

I don't know. I didn't review his proposal.18 A.

Did you review his contract?19 Q.

No.20 A.

Did you sign his contract?21 Q.

It's possible.22 A.

You don't have any memory of signing his23 Q.

contract?24



24/40


90

If you show me his contract, I'll tell you1 A.

whether I signed it or not.2

I'm asking you only if you have a memory.3 Q.

I sign hundreds of documents as a selectman. I4 A.

don't recall, specifically, or remember signing5

his contract.6

Do you remember whether or not he gave you a7 Q.

bond or security for that contract?8

I don't know what he arranged with the town9 A.manager.10

Do you remember a liquor license hearing for11 Q.

Pilgrim Golf in the May time frame of 2011?12

I remember having a liquor license -- I don't13 A.

remember what the date was -- a liquor license14

hearing. I don't remember what the date was.15

Do you remember an issue regarding whether or16

20120709 dahlen deposition

Documents