EagleTribune.com, North Andover, MA

March 19, 2013

Secret meeting held to pick solicitor

By Brian Messenger

---- — METHUEN — At least six applicants for city solicitor were interviewed last month during a secret meeting at lawyer Arthur Broadhurst’s downtown law office, The Eagle-Tribune has learned.

The meeting, which was held by a City Council subcommittee and lasted several hours, violated the state Open Meeting Law because a public notice was never filed beforehand.

But that didn’t prevent the majority of councilors last week from heaping praise on the solicitor hiring process, even after current Solicitor Peter McQuillan suggested more than one meeting was held without public knowledge — a charge Council Chairman Sean Fountain denies.

The council also acted against McQuillan’s advice when it voted last Tuesday to proceed with interviews for solicitor finalists Richard D’Agostino and William Faraci, documents show.

Two other finalists, Kerry Anderson and Robin Stein, abruptly dropped out of the running two weeks ago. Given their departure, McQuillan on March 8 wrote “a reasonable approach would be to begin the selection process anew.”

Instead, councilors voted 6-3 to move forward with interviews for D’Agostino and Faraci later this month.

The search for a new city solicitor was triggered Jan. 7 when councilors voted 5-4 against reappointing McQuillan to a two-year term. McQuillan, Methuen’s city solicitor since 2005, will remain on the job until the council names his successor.

Overseeing the search for McQuillan’s replacement is a six-member search committee made up of councilors Fountain, Jennifer Kannan, Tom Ciulla and Lisa Ferry and local lawyers Broadhurst and Bryan Chase.

Kannan and Ciulla were among the committee members to defend the search process before Tuesday’s vote.

“The process was done on the up-and-up other than that one meeting,” said Kannan, who last Friday announced she is challenging Mayor Stephen Zanni in this fall’s elections.

“I feel totally comfortable with the process,” added Ciulla. “It should continue. I don’t think there’s a problem.”

Councilors Joyce Campagnone and Michael Condon commended the search committee for its work.

“Through every process there’s some bumps,” said Condon.

The solicitor opening was announced Jan. 11 and advertised in The Eagle-Tribune, Boston Globe and on the city website. A two-week application window closed Jan. 25 with 12 people applying. The position will pay between $87,390 and $113,144 per year.

On Tuesday, Fountain said several applicants didn’t meet the minimum qualifications. Some had no experience, he said.

The secret meeting was held Feb. 6 at Broadhurst’s law office on Osgood Street.

Councilors Fountain and Ferry said the location was chosen because City Hall was closed that evening and the city would have been forced to pay a custodian to open up the building, turn on the heat and lights, and lock up afterward.

“It wasn’t to hide anything,” said Ferry. “It was a convenience thing. Arthur Broadhurst offered us his conference room.”

It is unclear whether six or eight applicants were interviewed that evening. Half-hour time slots were lined up for each applicant, and afterward Fountain said search committee members identified four finalists. No vote was taken, he said.

“We thought four of them stood out more than the others,” said Fountain.

A public notice for the Feb. 6 meeting was never posted. The Open Meeting Law in Massachusetts requires that meetings of public bodies — including City Council subcommittees — be publicized 48 hours in advance, even for closed-door executive sessions.

Fountain initially told The Eagle-Tribune on Feb. 11 that four finalists had been chosen. A day later, The Eagle-Tribune reported the Feb. 6 meeting was held illegally because the public was never notified.

The newspaper also reported that Fountain’s plan to hold finalist interviews behind closed doors, and to only release two of the four finalists’ names prior to a City Council vote, were both flagrant Open Meeting Law violations.

Fountain promptly reversed course and said finalist interviews will be held in public, but not before seeking advice from McQuillan.

In a response letter dated Feb. 13, McQuillan, citing state conflict-of-interest law, declined to offer an opinion because he is still serving as city solicitor. But he forwarded Fountain’s request to the state Attorney General’s Office of Open Government in a separate letter.

Attached to that letter was a copy of the agenda for the search committee’s first meeting, held Jan. 31 at City Hall.

“It is my understanding that there were subsequent meetings without compliance, in all respects, with the Open Meeting Law, one such meeting being held in the private offices of a local attorney who was also selected a member of the sub-committee,” wrote McQuillan.

McQuillan went on to write that the secret meeting or meetings potentially jeopardized the committee’s submission of solicitor finalists to the full City Council.

“My concern lies with the view that such a submission would be flawed due to non-compliance with the Open Meeting Law ab initio (from the start),” wrote McQuillan.

In an interview last Thursday, Fountain said McQuillan was wrong when he suggested to the Attorney General’s office that more than one meeting was held in secret. Multiple calls to McQuillan seeking comment for this story went unreturned last week.

“There was only one meeting that I didn’t post,” said Fountain. “You can ask anybody on that committee. There were only three meetings.”

After meeting Jan. 31 at City Hall and Feb. 6 at Broadhurst’s office, the search committee convened at City Hall Feb. 26 in a closed-door executive session “for the purposes of discussing confidential resumes,” according to the meeting agenda.

On Tuesday, Kannan and Ciulla said the four councilors on the search committee were split over whether to move forward with four or two finalists. Ciulla described the closed-door session as “very tense.”

The names of the four finalists — D’Agostino, Faraci, Anderson and Stein — were made public after the meeting. But Anderson and Stein withdrew their applications in emails to city councilors sent March 4 and March 5, respectively.

In her email, Anderson told councilors she “recently accepted an offer of employment elsewhere.” She could not be reached for comment for this story. Stein told councilors in her email that she had “given the position a lot of thought and concluded, with much difficulty, that it is not the right position for me at this time.” Stein declined comment when she contacted over the phone by a reporter this week.

With two of four finalists already out of the running, Fountain again reached out to McQuillan seeking advice on how to move forward. McQuillan responded in the March 8 letter by restating the potential for a conflict of interest, since he remains employed as solicitor.

McQuillan went on to write that while it is the City Council’s responsibility to determine the best course of action, “a reasonable approach would be to begin the selection process anew.”

“The committee sought to present a set number of finalists to the full City Council to demonstrate the result of a comprehensive and diligent search and provide the City Council with the opportunity to make an informed selection of a candidate for this critical position,” wrote McQuillan. “However the unexpected withdrawal of two applicants from the chosen final four candidates negated that goal. The committee was unable to either accomplish its intended purpose or complete its defined duty.”

Four days later, the council went against McQuillan’s advice and voted to move forward with interviews for D’Agostino and Faraci.

“I don’t believe that (McQuillan’s) response was correct,” said Fountain. “Six out of nine councilors didn’t agree. ... That’s got to say something.”