First semester of law school, a friend asked to be taught how to drive a manual transmission. I obliged. Our relationship remained intact; the clutch did not. When the initial repair shop only minimally repaired the clutch, rather than return to the shop as one does, I took the car to another shop, paid for a second repair and, incensed, sued the first shop for the cost of the second repair (my only lawsuit, and Apex Automotive, please know this was an aberration).
When I appeared before the judge—this is still first semester—I argued that if a doctor takes out the wrong kidney, you should not have to return to the same doctor to take out the right kidney. I wish I were making this up. Suffice it to say, you will not find any treatises concerning what could have been known as the “Kidney Doctrine.”
The judge taught me a valuable lesson that day, which was, one voids one’s warranty if one does not return to the initial place of service (a lesson taught second semester, so I was a bit ahead of the curve). Beyond that lesson, my day in court has been useful as an anecdote when asked if I have ever observed any truly ineffective counsel. While this episode surely won the gold, over time, I have come to appreciate that Town Counsel David J. Doneski’s efforts on behalf of Great Barrington deserve consideration for honorable mention.
Let us see if my advocacy in favor of replacing Mr. Doneski as town counsel is more compelling than my Kidney Doctrine legal reasoning. This time, you get to judge (and you can render your verdict on the survey below), as follows:
1. Affordable Housing Trust Fund ADU Pilot Program
The mission of the Affordable Housing Trust Fund (AHTF) is to provide affordable housing options to low- and moderate-income households in Great Barrington. In furtherance of its mission, during the 2023/2024 fiscal year, AHTF undertook considerable effort to formulate an Accessory Dwelling Unit (ADU) pilot program that would provide Great Barrington homeowners with zero-interest loans enabling the construction or renovation of an additional housing unit built at the applicant’s property. The program’s benefits to the town are twofold: one, creating additional housing for someone earning no more than the area’s median income; and two, providing rental income to applicants to enable them to afford to remain residents of Great Barrington. That is a housing win-win.
After considering AHTF’s proposal, the Community Preservation Committee approved $160,000 for the pilot program. The final hurdle before the pilot program’s implementation was Mr. Doneski’s sign-off.
Following the December 19, 2023, AHTF meeting, the town forwarded the pilot program to Mr. Doneski for final review. That was nearly 33 weeks ago. The first birthday of the request is coming up, but there will be no party. Funds appropriated to aid housing are gathering dust. As the co-chair of the AHTF explained at its July meeting, the review is not a large task, stressing to a town administrator that the pilot cannot move forward putting projects into the community without Mr. Doneski’s attention.
When the administrator was asked to explain Mr. Doneski’s delay, AHTF was told a number of lawsuits—addressed below—have consumed vast amounts of Mr. Doneski’s time, and that the town only has Mr. Doneski at its disposal, not other attorneys at Mr. Doneski’s firm. That is not how good firms operate. If Mr. Doneski is unable to meet his obligations to the town, it is for Mr. Doneski to call on one of the other 50 attorneys at his firm for assistance. Ignoring a matter critical to town housing for three weeks is unacceptable, and Mr. Doneski has now allowed this to go on for nearly 33 weeks.
2. Community Impact Fee Litigation Counterclaim
It is not new, discussed here and here, that the town should return the Community Impact Fees (CIF) collected from its cannabis retailers. It is not new, but quite odd, that Mr. Doneski’s law firm has advised other municipalities to return CIFs that they collected, but Mr. Doneski cannot find his way to do the same. It is not new that the arguments “it’s mine, not yours” and “you said so” were not effective as children in the sandbox, yet that is the gist of Mr. Doneski’s legal reasoning in opposition to the retailers’ lawsuits now. Suffice it to say, if you appreciate consistency, then you will like that Mr. Doneski has consistently misadvised Great Barrington regarding CIFs.
What is new is that on April 26, 2024, Mr. Doneski, on behalf of the town, filed a counterclaim against three town cannabis retailers. The quality of the counterclaim is such that if an associate at a law firm had filed it, it would be noted on that associate’s permanent record, and not in a good way. To call it legal drivel would be kind.
Mr. Doneski claims that each of the three plaintiffs somehow breached their Host Community Agreement (HCA) without stating any facts whatsoever. This is less than good legal practice. Mr. Doneski did not identify a specific contractual term that the retailers purportedly breached (critical when asserting breach of contract). Merely asserting that a party has failed to comply with a contractual term and failed to fulfill a contractual obligation, yet failing to identify which term and which obligation, could get someone demoted or fired at a good law firm.
While wasting time preparing an unsupportable counterclaim, Mr. Doneski could have instead reviewed and approved the AHTF ADU Pilot Program. Mr. Doneski has answered for us the question, “where is the evidence that Mr. Doneski is not doing a good job?” by giving us the April 26 Counterclaim as Exhibit A. The unanswered question is why Mr. Doneski has remained town counsel for so long.
3. Previous Failings
Not to be repeated here, it was previously noted that Mr. Doneski did not serve the town well by failing to timely submit an opposition to Housatonic Water Works (HWW) and the Department of Public Utility’s proposed rate case settlement. HWW was right to object to the statement Mr. Doneski ultimately provided at the June 20 virtual meeting. Good lawyers meet deadlines. Mr. Doneski did not.
KP is the largest firm serving municipalities in the state. There are more than 50 attorneys at the firm, and undoubtedly some are exceptionally good. And undoubtedly, unlike Lake Wobegon, not everyone at KP Law is in the top half of its class. There are likely to be stars at KP Law that get to questions quickly, and on the other end of the spectrum, there are attorneys that take 33 weeks or more to review a pilot program to help house those in need. Great Barrington should begin looking for an attorney in the top half of the class.
Law firms, and lawyers, provide a service. If you are not happy with the service, you should find another service provider (advice inapplicable to Spectrum and other regulated monopolies, unfortunately). Repeatedly, Mr. Doneski has provided questionable service to the town. If Mr. Doneski is unable to acknowledge these failings and resign, then the town should consider easing him out of his post. This is neither said lightly nor without cause. Hopefully, those that need to hear this message are listening.
Editor’s note: Peter Most is a member of the Affordable Housing Trust Fund. The opinions expressed are solely his own.
Survey Monkey Questions
Here is a link to the following Survey Monkey poll: ‘Should Great Barrington replace David J. Doneski, Esq. as Town Counsel?”
Survey Monkey Results
A recent column asked the following survey question: “Would you favor renovating Monument Mountain High School if the Great Barrington Select Board at the fall 2024 tax classification hearing voted to implement a homestead exemption and seek a Home Rule petition to protect permanent residents from a rent increase?”
As of publication, 53.85 percent said “no.” As a point of reference, 66.67 percent of residents would need to vote “yes” to approve a bond measure financing the renovation of Monument Mountain High School, a swing of about 20 percent. An earlier survey asked if respondents would be willing to pay approximately 16 percent more in taxes to fund a renovation without any tax relief. As of publication, 65.79 percent respondents said “no” to that question, about 33 percent short of the votes needed to pass a bond measure.
Days Great Barrington has held Community Access Fees hostage: 150
Weeks Town Counsel has held the ADU Pilot Program hostage: 33
