FOR IMMEDIATE RELEASE
Wednesday, December 16, 2009
WAYLAND – Earlier today, the Massachusetts Municipal Association (MMA), joined by the Town of Wayland, filed an amicus curiae (friend of the court) brief in support of the appeal by Twenty Wayland, LLC from the Superior Court decision allowing legal counsel to represent the Wayland Historic District Commission (HDC). Last month, Middlesex Superior Judge Leila Kerns denied a motion filed by Twenty Wayland, LLC to disqualify Attorney Barbara Hayes Buell from representing the HDC because she had not been appointed by the Town Administrator. As stated in the brief, Judge Kerns ignored established case law regarding municipal authority to retain legal counsel for municipal departments. The motion was filed as part of the suit that seeks to modify the certificate of appropriateness issued by the HDC for certain Town Center project off-site traffic improvements.
Both the MMA and the Town of Wayland argued in the brief that the Superior Court ruling violates the Town’s By-law and the Special Act establishing the position of Town Administrator which expressly vests sole authority to appoint counsel to represent the town in litigation with the Town Administrator. In addition, the Superior Court ruling is contrary to long established state case law which holds that a municipal department has no authority to engage counsel absent approval from the municipal entity charged with employing counsel. The courts have long held that the “rule serves to prevent confusion or conflict in the direction and management of municipal litigation”. The HDC lacks the executive authority to direct the Town’s legal affairs. This deficiency is not remedied whether counsel is being paid for the legal services or not.
It would be extremely detrimental to the management and functioning of municipal government in Massachusetts if every local board or official were allowed to retain counsel, whether paid or not, whenever that board or official disagrees with the position of the entity possessing the power to determine who, when, and if the municipality will be represented in the litigation. Allowing an administrative body to take a position in litigation adverse to the town’s executive authority would be fundamentally at odds with the public interest.
The Massachusetts Municipal Association is a non-profit, non-partisan association that provides advocacy, training, research and other services to Massachusetts city and town officials. The MMA also serves as an advocate for its member communities before the Massachusetts General Court, the executive branch, regulatory bodies, and the courts.
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The Massachusetts Municipal Association (MMA) and the Town of Wayland filed an amicus curiae (friend of the court) brief late Wednesday afternoon in the HDC legal counsel appeal.
