Lenox — Last week, a Massachusetts appellate court gave way to the town of Lenox to file a brief and insert its arguments in a two-year lawsuit between the town of Lee residents and their former Select Board members.
The action stems from a March 2021 complaint filed in Berkshire County by four citizens of Lee against the town of Lee and its former Select Board members— Patricia Carlino, David Consolati, and Thomas Wickham. The 2021 complaint alleges wrongdoing by the former Select Board members’ signing of a 2020 settlement agreement and their plan to remediate the Housatonic River after years of General Electric Company depositing now-banned polychlorinated biphenyls (PCBs) into the waterway from its Pittsfield plant. Although Robert “Bob” Jones was named as Plaintiff in the original filing (along with Andrea Wadsworth, James Castegnaro, and Clare Lahey), he was replaced by Caroline Young due to a conflict of interest following his win of a Select Board seat.
The agreement states that Lee will house a PCB toxic-waste facility in exchange for receiving $25 million from GE. Allegations contained in the pleadings state that the group met behind closed doors to negotiate the settlement contract and, by failing to give public notice and an opportunity to comment, violated the state’s Open Meeting Law. The complaint also alleges that the defendants violated the town’s bylaws and their actions constituted an abuse of discretion as public servants since they didn’t obtain the consent of citizens at a town meeting prior to signing the agreement and weren’t authorized to make such a contract. The lawsuit requested that either the entire settlement agreement or the portion of the contract pertaining to placing a PCB facility in Lee be declared “null and void.”
But the court didn’t see it that way.
On September 10, 2021, upon the defendants’ motion, the Superior Court dismissed the complaint. In its memorandum, the court opined that the former Select Board members didn’t violate Massachusetts’ open meeting law since a public body can meet in executive session, privately, to discuss potential litigation and terms of settlement. They also found the actions alleged didn’t violate Lee’s bylaws since town meeting consent is required when the town makes a payment of more than $1,000 and, in this case, Lee was on the receiving end of $25 million. The court stated that no facts supported the abuse of discretion allegation and town representatives can enter contracts or settle claims.
Represented by attorney Judith C. Knight, Young, Wadsworth, Castegnaro, and Lahey appealed the order.
On September 15, the town of Lenox, represented by attorney Roger Smerage, asked the court for permission to file an amicus brief, a pleading that could provide more information to the court about the case and help in its decision. In its request granted September 18, Lenox asserted that it would be “harmed” if the 2020 settlement agreement—signed by Housatonic Rest of River Municipal Committee representatives from Great Barrington, Lee, Lenox, Sheffield, and Stockbridge, as well as GE and the Environmental Protection Agency—was nullified. Lenox also stated that it could provide additional context for that settlement agreement as well as “the broader implications” of Lee’s challenge to its validity.
In a telephone interview, Knight told The Berkshire Edge that she was “really surprised” Lenox filed its motion requesting the court’s permission to file a brief in the lawsuit between Lee residents and the town’s former Select Board members. “I don’t think Lenox has any business doing that,” she said. According to Knight, such motions are routinely allowed by appellate courts, but this motion was approved within 24 hours. “I didn’t even have a chance to oppose it, but I wouldn’t have been successful in opposing their ability to file the amicus brief.”
However, she said she would oppose any attempt by Lenox’s attorney to argue before the court in the upcoming oral arguments phase of the appeal potentially slated for November (although an exact date has not been determined yet). Knight said an amicus brief regarding dismissal was filed in the trial court, or original case, by the Rest of River Municipal Committee’s attorney, who was allowed to speak in oral arguments before the judge, an issue for Knight’s appeal.
“Our case is focused on the town of Lee and how the 2020 Select Board of the town of Lee entered into a contract without obtaining the consent of a town meeting,” she said. “It’s really about honoring the process the town of Lee has set up so its citizens can vote on something as important as this.”
Knight said she doesn’t know what the town of Lenox “is hoping to gain by entering into our case.”
Smerage has not responded to The Berkshire Edge’s requests for comments and has not filed an amicus brief for the town of Lenox as of this publication. Attempts to reach Jeremia Pollard, attorney for the defendants, were not returned by press time. Lenox Town Manager Chris Ketchen stated he would not comment on pending litigation.
