MIDDLESEX, SS.

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DOCKET NO. 08-04641-B

JOHNSON GOLF MANAGEMENT, INC., PLAINTIFF V. TOWN OF DUXBURY, AND NORTH HILL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN , CHAIRMAN , SCOTT WHITCOMB, ROBERT M. MUSTARD , JR ., MICHAEL MARLBOROUGH , ANTHONY FLOREANO , MICHAEL T. RUFO , THOMAS K. GARRITY , RICHARD MANNING , W. JAMES FORD , AND GORDON CUSHING (EX OFFICIO ) and CALM GOLF, INC ., CHARLES LANZETTA DEFENDANTS
AND

and PILGRIM GOLF, LLC INTERVENER

Opposition of The Plaintiff to Defendant, Town of Duxburys Motion to Strike & Duxburys Motion for Sanctions (Dated March 15, 2012)
As a preliminary matter, Duxburys Motions appear to be predicated upon the fact that the Plaintiffs Opposition to Duxburys most recent Motion for Summary Judgment is not probative of facts that would lead a finder of fact to the conclusion that Duxbury has been engaged in a conspiracy to violate the Massachusetts Uniform Procurement Act, G. L.c.30B. The discovery to date is replete with evidence that Duxbury officials engaged in a conspiracy to assure that Johnson Golf would not obtain the contract to manage the North Hill Country Club Golf Course in 2008, 2009 and thereafter.

It is well established under Massachusetts case law that a conspiracy can be proven via circumstantial evidence. Indeed, it is well settled that conspiracies are seldom proved in any other way. "A conspiracy may be proved by circumstantial evidence, and this is the usual mode of proving it, since it is not often that direct evidence can be had. The acts of different persons who are shown to have known each other, or to have been in communication with each other, directed towards the accomplishment of the same object, especially if by the same means or in the same manner, may be satisfactory proof of a conspiracy." Commonwealth v. Smith, 163 Mass. 411 , 417, 418. Commonwealth v. Rogers, 181 Mass. 184 . Commonwealth v. Clancy, 187 Mass. 191 , 195. Commonwealth v. Riches, 219 Mass. 440 , 442. It is not essential to a conspiracy that the parties meet or that they confer and formulate their plans. Common purpose may be inferred from concerted action converging to a definite end. Attorney General v. Tufts, 239 Mass. 458, 494 (1921)

The issue of circumstantial evidence in cases involving conspiracy was again addressed in the case of Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 604 (1992 ): A conspiracy is a "combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 , 249 (1971), cert. denied, 407 U.S. 914 (1972), quoting from Commonwealth v. Hunt, 4 Met. 111 , 123 (1843). A conspiracy need not be proved, however, by direct evidence of participation or by an admission of participation. See Commonwealth v. Nelson, 370 Mass. 192 , 200 (1976). "A conspiracy may be proved by circumstantial evidence, and this is the usual mode of proving it, since it is not often that direct evidence can be had. The acts of different persons who are shown to have known each other, or to have been in communication with each other, directed towards the accomplishment of the same object, especially if by the same means or in the same manner, may be satisfactory proof of a conspiracy." Id. at 200-201, quoting from Commonwealth v. Smith, 163 Mass. 411 , 417-418 (1895). "Circumstances must be shown from which a reasonable inference can be drawn that the defendant participated in the particular conspiracy charged." Commonwealth v. Nelson, supra at 201, quoting from Commonwealth v. Schnackenberg, 356 Mass. 65 , 74 (1969). Perhaps even more pertinent to the present action is the language used by the Supreme Judicial Court in the case of Commonwealth v. Meserve 154 Mass.64, (1891)

 But conspiracy may be proved by circumstantial evidence, and proof of what was actually done is evidence tending to show what was agreed to be done.

Contrary to the assertions in Duxburys Motions, its most recent Motion for Summary Judgment does not raise issues which have not been addressed in the past decisions, which denied their Motions for Summary Judgment. Since Duxbury has declared that the allegations against Town Counsel are somehow not advanced in good faith, a review of the relevant facts is necessary and appropriate. Despite his repeated statements to this Court and to others that Duxbury hired a consultant to draft the RFPs in question, it has now been established that Attorney Troy was not being truthful. On January 27, 2009 Attorney Troy stated to this Court The Town hired a consultant to do this because they wanted to open it up to people other than people running municipal golf courses. And for that reason, thats why they talk about comparable business experience. [Transcript of hearing before Judge Herman Smith dated January 27, 2009, page 22, lines 16-20] (Copy attached as Exhibit A) In the statement of undisputed facts associated with Duxburys Motion for Summary Judgment filed on April 1, 2010 Attorney Troy stated to the Court: Further responding, the Committee hired a consultant to draft a new RFP for North Hill in 2008. [Undisputed Facts, April 1, 2010, Paragraph 22] (Copy attached as Exhibit B) Addressing the Duxbury Selectmen on October 4, 2010, Attorney Troy was even more emphatic in his continuing misrepresentation concerning the RFPs and the alleged consultant. On October 4, 2010 Attorney Troy stated:

In this particular case it was decided that the matter was so specialized that we actually went outside of Town Hall and hired a procurement company. Do you know the name of it? [MR. CUSHING: Not off the top of my head]. I know theyre in Plymouth to design those. Theres been much said about there was some kind of conspiracy or something at Town Hall. The honest answer is that Town Hall had nothing to do with the entire procurement document. It was sent out to a vendor who had expertise as we understood it, in the field of golf course procurements. And I believe, I dont remember, it was a woman. [MR. CUSHING: Uhm-hmm.]. It was a woman who has a company in Plymouth. We have the information here. So what happened was that company designed the RFP completely. There was no input here at Town Hall." (Emphasis added) [Transcript of Duxbury Selectmens Hearing 10-4-10 Pages 64-65] (Copy attached as Exhibit C) Attorney Troys statements have been completely contradicted by the deposition testimony of Gordon Cushing who testified as follows: Q. Was there any consultant utilized by the Town to draft the RFP? A. No. [Deposition of Gordon Cushing, May 11, 2011 p.55 Lines 2 - 4.] Cushing further testified : The term comparable business enterprise came from Town Counsel, Robert Troy. [Deposition of Gordon Cushing, May 11, 2011 p.52 Lines 23 & 24] To make sure Cushing was being accurate he was asked: Q. Are you 100 percent sure of that? A. 100 percent sure of that. [Deposition of Gordon Cushing, May 11, 2011 p.53 Lines 1 & 2] Cushing further testified that he drafted the RFP in 2008 and the following people in Town Hall provided input: Members of the board of selectmen, the town manager, the finance director, the water superintendent ...Mrs. Sullivan. [Deposition of Gordon Cushing, May 11, 2011 p.37, Lines 16-23] 4

The insurance agent for the Town, Mr. Troy, the town counsel...Town accountants office.....town manager. [Deposition of Gordon Cushing, May 11, 2011 p.47, Lines 5-13] (Copy of Gordon Cushings Deposition Transcript is attached as Exhibit D) There is no credible evidence whatsoever that Attorney Troy had a good faith basis to make the factual statements that he did to this court and to the Duxbury Selectmen regarding the consultant who is alleged to have drafted the RFP1. The position advanced by Duxbury in its Motion For Sanctions at page 8 asserts that Town Officials advised Attorney Troy that a consultant was involved and that the Towns records confirm this. There are no records provided and there is no affidavit or other verification for the position advanced by Duxbury. There is no possible explanation other than the fact that Attorney Troy fabricated a story about a consultant. Attorney Troys involvement in the conspiracy was not limited to his misrepresentations concerning a phantom consultant. Attorney Troy was present at the opening of the price proposals of all the bidders in response to the RFP process in October 2008. CALM Golf failed to follow the mandates of the RFP regarding a Flat Payment in its price proposal. Thus, under G.L.c. 30B, 6 its proposal was non-responsive and CALM could not have been considered for an award of the contract. Attorney Troy knew that CALM Golfs proposal was non-responsive since the RFP clearly required proposers to submit price proposals as flat payments to the Town. Additionally, under G.L.c.30B, 6, as soon as the evaluations were completed the proposals were no longer considered confidential. Under G.L. c.4, 7, twenty-sixth, the proposals should have been made available to the public. Instead, Attorney Troy took it upon himself to remove the public records from the Town Hall in Duxbury and hide them in his private law office in Sandwich,

This conduct raises issues under Rule 3.3 (a) (1) and Rule 4.1(a) of the Massachusetts Rules of Professional Conduct. 5

Massachusetts.2 The effect of Attorney Troys action was to prevent Johnson Golf, its counsel and the Middlesex Superior Court from learning that CALM Golfs price proposal was non-responsive, that Johnson Golf had outbid CALM by $140,000.00 and that Johnson Golf had been rated Highly Advantageous in 11 out of 12 possible scores by the evaluators. It is highly doubtful that Judge Smith would have authorized even a second round of bidding, had the public records been made available in December 2008. Lest there be any doubt about the price differential between Johnson Golf and CALM Golf in October, 2008, the price proposals are attached hereto as Exhibit E. The actual price proposal of Johnson Golf was $420,000.00 and the actual price proposal of CALM Golf was $280,000.00. Duxbury, Cushing and Troy further conspired to prevent Johnson Golf from obtaining the contract by changing the RFP to assist CALM Golf. In December 2009 when the new RFP was issued by Duxbury, there was one substantive change made in the document. In RFP #1 proposers were told to submit a financial proposal as a flat payment. Out of the original proposers only CALM Golf failed to comply with the flat payment requirement. In the second RFP the expression Flat Payment was removed. In a document totaling 44 pages, this was the only change other than submission dates and it was undoubtedly done to assist CALM Golf to qualify. With respect to Duxburys allegations that some action by the Massachusetts Inspector General has nullified Johnson Golfs right to proceed to trial, such an allegation is both factually and legally wrong. It should be noted that Duxbury has been no more truthful to the Inspector General than they have been to this Court. According to the Inspector General, in his advisory letter to Richard MacDonald dated January 27, 2011 he was relying on information from Duxbury which

This conduct raises an additional issue under Rule 3.4 (1)a of the Massachusetts Rules of Professional Conduct. 6

was blatantly false. According to the Inspector General, Duxbury cancelled the RFP process because one of the evaluators became aware of the price proposals. (Exhibit F) This is a fabrication. Actually, Duxbury asserted that the RFP was cancelled because two evaluators failed to provide composite ratings. Secondly, the Inspector General asserts that Duxbury informed him that in January 2009 Duxbury was unaware of CALMs limited assets and equipment. This also is a fabrication. CALMs limited assets were repeatedly manifested to Duxbury in January 2009 and the issue became crystal clear on February 2, 2009 when the issue was at the core of Judge Smiths decision granting an injunction. (Copies of letter to Attorney Troy dated January 16, 2009 and Judge Smiths decision are attached hereto as Exhibit G and Exhibit H) In December 2008, knowing full well that Johnson Golf had been rated Highly Advantageous in all four categories by evaluators Cushing and Floreano and Highly Advantageous in three out of four categories by evaluator Dixon, Attorney Troy represented to the Court that the plaintiffs complaint was brought on speculation. [Transcript of December 29, 2008 hearing before Judge Smith, p. 23 line 8]. Attorney Troy repeated this assertion in the Defendants Opposition to Plaintiffs Request for Injunctive Relief. [December 2008 Page 9 ]. The so-called poison pills in the IFB issued by the Town of Duxbury are entirely relevant to the ongoing conspiracy to deprive Johnson Golf of the contract. The concept that a bidder in a public procurement would be required to waive all of its rights to judicial review and agree to a provision by which the Town of Duxbury could terminate the contract upon 10 days notice is patently ridiculous. It is not surprising that the only bidder was a former member of the North Hill Advisory Committee. The conversation between Emmett Sheehan and Selectman Dahlen is not purely speculative as described by Duxbury. It was supported by affidavits of two individuals who were 7

present at the bid opening in February 2011 when there were no bidders. (Jason Laramee and Joseph Eckstrom). The minutes of the North Hill Advisory Committee dated January 10, 2007 demonstrate that the Committee was considering the new RFP process and Emmett Sheehan was actively participating. (Copy of Minutes attached as Exhibit I). The selective amnesia of Richard MacDonald speaks to the ongoing attempt by Duxbury to cover up the conspiracy to deny the contract to Johnson Golf. The operative facts concerning the ongoing conspiracy by Duxbury officials have not changed since this action was originally filed. The decision to award a contract to CALM Golf in January 2009 could not be supported then and it cannot be supported now. As Judge Smith correctly observed in his decision granting an injunction of February 2, 2009 It is incredible to this Court that CALM Golf was rated highly advantageous by at least one evaluator in each category. p 5-6 This Court finds that Johnson Golf has established a likelihood of success on the merits of at least one, if not several, of its many claims. p.6 [Decision of Judge Smith 2-2-09 issuing Injunctive Relief Exhibit H ]. No one reading Judge Smiths words could possibly misunderstand his view of the facts and the law, but Attorney Troy, citing Judge Smiths ruling, advised the Duxbury Selectmen that Judge Smith had said that the Johnson Golf had only a slim possibility of winning its case. When the Court issued its injunction...the Court observed that Johnson Golf had a very slim possibility of succeeding on the merits which means that what the Court was saying, it does not think that Johnson Golf is going to prevail on the litigation. [ Attorney Troy p.27 Transcript dated 10-4-10 - Hearing before Duxbury Selectmen Exhibit C ] It should come as no surprise to the Town of Duxbury that the plaintiff listed Attorney Troy as a witness in the Joint Pre-Trial Memorandum filed with this Court in November 2011. Discovery 8

has shown that he was one of the individuals who drafted the RFP and it was his decision to violate the public records law and conceal the bid documents in his private law office. He compounded the problems faced by the Town of Duxbury by intentionally providing false information to the Court and to his client.

CONCLUSION

For the forgoing reasons, the Plaintiff respectfully requests that this Honorable Court: 1. 2. Deny the Defendants Motions. Make a specific finding against Duxbury pursuant to G.L. c. 231, 6(f) and award the Plaintiff its costs and attorneys fees in defending these motions. 3. Enter such other and further relief as it deems meet and just.

March 25, 2012

The Plaintiff, By its attorneys,

______________________________ Stephen R. Follansbee, Esquire BBO # 173820 FOLLANSBEE, & McLEOD, LLP 536 Granite Street Follansbee& McLeod Braintree, MA 02184 781-848-1500 steve@fmlaw.us