Concord Oral History Program
Renee Garrelick, Interviewer
Town Counsel 1978-1988, The increasing complexity of the town's legal business.
Well, when I was growing up, I lived in Wellesley and both of my parents were active in town governmental affairs in Wellesley. My father was on the Board of Selectman and then he became town counsel and he was town counsel until his death in 1949. So I grew up hearing town affairs being discussed around the dining room table by my father and mother quite regularly. My mother was active in municipal affairs. She was very much interested in the public schools in Wellesley and she was a mover in an effort and ultimately succeeded to replace the Superintendent of Schools who was thought not to be doing a very good job, and I can remember, lots and lots of meetings which my mother would have at our house while she and her cohorts put together their strategy for dealing with what they saw as the inadequacies in the school system. They were both very much interested in who got elected to various town offices.
I can remember this with great interest in hearing it discussed so that - and every Monday night, my father would go up to the Town Hall religiously to the selectmens' meeting even after he became town counsel, he would go up every Monday night and sit in on the selectmens' meeting and this was very much a part of my growing up life. I sometimes, jokingly say, that I was almost grown up before I discovered that not everybody's father went to the Town Hall every Monday night. When I was in law school, Harvard Law School, I took a course from Professor George B. Gardner in municipal law just as a matter of interest so that even after college and World War II and later being recalled into the Korean War, I was still interested in municipal law in law school. So that's a kind of a quick sketch of my background interests at the time that Margaret, my wife, and I moved to Concord in 1958.
I started as an associate with a large law firm - Goodwin, Procter and Hoar in Boston and that law firm was traditionally connected with the town of Concord because of Sam Hoar and Robert Goodwin so they did work for the town of Concord and it wasn't very long before I started to get involved in town affairs. I was asked to serve on the White Pond Study Committee, to study what was to be done about the situation - the roads, the lack of water - municipal facilities over at the whole White Pond area because those streets had never been accepted and were giving rise to quite a number of problems. I remember lots and lots of time I spent with people that lived in the White Pond area and other people on that White Pond Committee trying to develop Town Meeting action and other municipal steps that would upgrade the White Pond area and deal with some of the problems and we did accomplish some useful things. We got the selectmen, for example, to agree to plow the snow from those streets which, after then, the town did not plow and some water pipes were put in and we hooked up uptown water so there was town water in the White Pond area and over a period of time, the White Pond area has improved quite a lot as the town has grown and the Willard School has made that an increasingly popular area.
Well, my first town job was as a member of the Planning Board. That came along in 1960. Considering the way people are sort of screened for town offices nowadays, the care that gets taken, how I got on the Planning Board is kind of amusing. Fred Robbins who was two or three years my senior at Goodwin, Proctor and Hoar - I remember I was standing and waiting for the train down at the Concord Depot one morning, and it was cold and in the winter and I was standing in the sun and keeping warm, and Fred Robbins came along and he was, at that time, a member of the Board of Selectmen and Fred said to me, "there is a vacancy on the Planning Board and we agreed last night to put you on if you want to be a member of the Planning Board." And I said, "Sure that was fine." And so that is how I got on the Planning Board. You have to understand that this was in the days before the open meeting law and lots and lots of town business used to get done on the train going to Boston. So that was 1960 and I served continuously on the Planning Board until 1972 so that twelve or thirteen years stretch was a period of very, very rapid growth and change of the residential areas of the town. It was also a period of time in which we were constantly dealing with the federal highway authorities on what was or was not going to happen as far as Route 2 was concerned.
We never developed a summer place to go to and I think one of the reasons was that every weekend I would be doing Planning Board work. I would be out tramping around some subdivision or looking at some zoning change. Our children were growing up at the time and they were greatly thrilled and impressed because Friday night, just about the time we were relaxing a little bit before dinner, why a police car would roll up in our driveway and there were lots of children in our neighborhood, and they would be greatly impressed with a police officer would get out of the car and hand me a manila envelope and this would be the "homework" for the weekend. So people say, "didn't you go away for the weekend?" and the answer was "no, we never did" because I was always marching around looking at some subdivision or zoning change. So I went along on the Planning Board, as I say, until 1972 and you could not help but learn a lot about how the town worked in those years. As the town grew and as we moved into the 2-acre zoning and dealt with various industrial zoning problems and changes in the zoning by-laws to meet and adapt the town to the enormously rapid rate of growth that was going on in those years.
Well, again, interesting the way things happen. In 1972, one Sunday afternoon, I was sitting home and doing nothing in particular and the phone rang and it was Seymour Archibald on the phone and Seymour was then a member of the Board of Selectmen and I'll have a little more to say about his phone call later on, but one of the jobs a retiring Selectman has is to go out and recruit an appropriate successor who presumably will fill the bill as far as the board and town is concerned. So Seymour said to me, "Well, I'm getting off the Board of Selectmen and we think it's time for you to run for selectman." I said I guess that would be all right if I would be supported by whoever "we were" and Seymour said, you would be supported don't worry about that. So I announced my candidacy for selectman with a letter to the newspapers. I think we had two at the time. We had the Journal and the Free Press at the time and lined up a couple of people to nominate me at the caucus, but I really didn't have the faintest notion as I look back on it of how Concord town politics worked. One afternoon, John Finigan called up and said, "I reserved a quarter page ad for you in the Concord Journal the last issue before the election" and I said, "Well, that's nice, John, but why?" And he said, "Well, you dummy, you have to have an ad in the paper before the election." So I didn't do anything about that but that just shows you the way that John Finigan constantly followed town politics and took upon himself to do whatever he thought was necessary and I guess he realized that I didn't know enough to reserve this space in the paper and that it better be done and so he did it for me and just called up and said it was done.
I was filling a two year vacancy resulting in the resignation of Bill Locke so I ran again for a full three year term as selectman in 1974 and that lasted until 1977. During that period of time, one of the things that we accomplished that I think is very useful was a commitment on the part of the Board of Selectmen that two terms was going to be it. We were not going to have people being perennial selectmen or members of the Board of Appeals or anything else. Whatever the two terms were, whether it was appointive or elective, the moderator being the obvious necessary exception to that rule, two terms was going to be it. We felt that with all the wealth of talent we had in Concord and the number of green cards that we had in the Town Hall of people indicating their willingness to serve on boards and committees that it made all kinds of sense to enforce the two term rule. This wasn't easy. You've got wonderful people serving on committees like, for example, I remember Bob Needham as a member of the Archives Committee and how do you go around and tell someone like Bob Needham that he has done two terms and you are not going to reappoint him? Well, that is very tough to do but we felt that, in spite of the dedicated and loving work that he had done and his enthusiasm, that is was more important to stick with the two term procedure. And I think that served the town well because you look at some of these towns - particularly out in the western part of the state where people go on forever being selectmen or members of some board or commission - and it is very bad town government.
So the years as selectman I loved that five or six years and it was lots of fun but I got off in 1977. Peg Purcell and Jim Mercer both came on the board in 1977 the year that I got off but, in any event, that was the end of tour as a selectman and I was then feeling sort like the elder statesman and again, kind of amusing, the way the town worked in those years. The phone rang and it was Paul Flynn who was then the town manager and Paul said, "I'm retiring as town manager (which he had already announced) and Tom Swain who was then the town counsel is going to resign as town counsel because he and his family are going to Great Britain so he will have to drop the town counsel job." So Paul Flynn said "I would like to appoint you town counsel." Paul left town September 1 of 1978 and his words were, "there is going to be a new town manager and I want to leave someone in the town counsel job that knows how the town works" - words that he used. So I figured after 12 or 13 years on the Planning Board and five as a selectman that I knew how the town worked all right. And so Paul appointed me town counsel and I felt that was an honor. I was following in the shoes of people like Tom Swain and Herbert Wilkins and Jack Sheehan and I felt that was pretty darn nice. I still do.
My father, as I mentioned earlier had been town counsel in Wellesley, and my wife always just snorts and says all you were doing was reliving your childhood by being town counsel. Well, that may be so but I really enjoyed the work of town counsel which carried on until September 30 of 1988 this year when I retired from law practice at Goodwin, Proctor and Hoar and necessarily as town counsel because I was not going to continue to be an active practicing lawyer. I have taken up working in an investment counsel firm in Boston. My service in various town boards and committees started with the Planning Board in 1960, and with the two year break between '77 and '79, went continuously until 1988 - a period of 28 years which I really enjoyed and got a great kick out of.
In my father's day, in the 1930's and '40's, my father was town counsel in Wellesley until he died in 1949 - that was always regarded I think as kind of an opportunity for some worthy local barrister a little chance for some free exposure at town meeting, that is a little advertising. Lawyers couldn't advertise in those days and, in return, in doing the work for town counsel, and getting this little bit of free advertising, why the town's legal work would get done at bargain basement rates. And there were some amusing perks that went along with being town counsel in Wellesley. We always got free firewood. My father was very active in supporting a fellow who was always active in running for tree warden and I guess that the payoff for that was firewood because whenever we were running out of firewood, another load would appear in the driveway. The town always plowed our driveway and I remember asking my father "how about that" and he said, "Well, I might have to get out in an emergency some night and go to the Town Hall so you wouldn't want the driveway full of snow." After he died in 1949, we had a couple of horrendous snowstorms within the next few years and I remember my brother-in-law and I digging out this long driveway and realizing what a boon it had been all the time I was growing up that we got the driveway plowed. The other little perk was that we only had one automobile and it always impressed me greatly that somebody else might be using the car Monday night and my father would call the police station and say would one of the cruisers pick him up and take him out to the Town Hall and a cruiser would swing in the driveway and pick him up and take him out to the Town Hall. Well, you couldn't get away with any of those things today in Concord.
The job has changed a great deal - the town counsel's job since my father's time and it is no longer an honorary post where a local lawyer can get some exposure. It is really a assignment carrying quite a lot of responsibility and scope in a number of legal areas and just let me tick those off rapidly. Prior to 1978, a city or a town in Massachusetts was not liable for its civil wrongs or as lawyers call them "torts". After 1978, city and towns became liable so we now have a municipal tort liability statute. We have civil rights responsibilities in towns and a municipal collective bargaining law in Massachusetts. I remember Barbara Anthony and I negotiated the first collective bargaining agreement with town employees for the high school custodians. We have the open meeting law which changed totally the way meetings are run and the way people are appointed. We have affirmative action requirements for putting people on town boards and committees. One of the real pleasures I had as a selectman was to serve with Anna Manion who was the first woman to be elected selectman in Concord.
We have had in those years a regular explosion of litigations in the United States about everything and that has brought with it litigations involving town matters of all kinds. We have had the whole environmental legal movement coming along so that that has had a considerable impact on the way subdivisions are built in the town, the way the legal problems we run into, for example, years and years ago the Concord Municipal Light Plant shipped three or four old used up light power transformers off to some transformer graveyard someplace. This was in the days when those transformers were cooled with a PCB solution and, lo and behold, we wake up and discover that Concord along with a number of other electric light companies was a contributor to one of the major poisonous waste sites in the United States, one where these transformers went and another one up in Lowell. And the town became a defendant in efforts by the federal government to clean up these sites and we have had to make our contribution to that cost. So that in order to do this job as town counsel properly, I think it requires a variety of legal services from trying cases which I never did a lot of but certainly there were people in my firm who did try cases.
I was not an environmental lawyer but we had experts in that field to deal with environmental problems, affirmative action, collective bargaining and labor relations. We have had arbitrations with town employees over labor matters in addition to all of the traditional town work of preparing articles for town meeting and street takings and all that kind of thing. So that the job is quite different from what it was in my father's day and, of course, you look at the budget for legal services in the town and it reflects that fact - rather steady increase of what the town spends for legal services. That's been commended on more than once in town meeting by some of our municipal gadflys when they look at the budget. But I think that people have come to realize that a town as a rather substantial corporation nowadays is going to have lots and lots of legal involvement and it has to be properly handled or there's lots of trouble down the road so all of that has been lots and lots of fun. I must say no part of my law practice have I enjoyed more than the town counsel's job.
The open meeting law. We were all feeling our way along as selectmen in the open meeting law and getting used to people attending the meetings and having the press there. If you said something stupid, you could expect to see it in the newspaper the next day but you gradually got used to the idea and got less and less self conscious. I remember one winter night we were having a hearing on a new package store license, which was being highly sought after and which was very much a source of controversy as to where it was going and there were contenders for it over in West Concord in the new shopping plaza and down at Nine Acre Corner. The Board of Selectmen were closely divided on this so we were debating this and a whole bunch of people were sitting there in the office and, in the second row, which was unusual for her was one of our well-known municipal gadflys but I wasn't paying too much attention. And this was before the statute allowed transcription - electronic transcription of an open meeting and a hand appeared out from between the coats and in the hand was a microphone sort of sneaking out between these two coats hanging on two chairs and I realized that one of our municipal gadflys was making an electronic transcription of every word that was being said. We violated the open meeting law the coming week by discussing with each other on the telephone what we should do and we decided on the telephone a violation of the open meeting law I have to say, and I was chairman at the time, that we would do nothing. That after all if people could take down what we said in shorthand or any other way or speedwriting, and publish it in the newspaper, you couldn't logically make much of any objection to electronic transcription.
The Anderson law suit. In 1977 there was a very sad and tragic accident involving the firing of the town-owned cannons by the Concord Independent Battery at the ceremonies on Memorial Day of that year. Mr. William Anderson Jr. was a rammer in one of the crews and he was ramming the powdered charge down into the barrel of the gun - the cannon and these were muzzle loading cannon, and there was what was called a premature discharge or explosion of the powdered charge, which while his hand was still on the ramming rod, the result of which, and that premature discharge, was probably the result of a spark which was down in the base of the cannon as a result of the previous charge and when you study the history of cannons through Napoleonic wars - the civil wars, you discovered this was a very common kind of accident. In fact, the first soldier killed at Ft. Sumter in the Civil War was by a premature discharge or explosion of the cannon not from actual enemy action.
Well, Mr. Anderson lost most of one of his hands. He sued the town along with the independent battery and the fire chief who granted the permit, the selectman who granted the parade permit and the members of the public celebrations committee and others. And this was very high profile lawsuit. I was not involved because I was not town counsel when the lawsuit started but it was ultimately decided by Judge William Young in the Superior Court that the town was not libel because the accident happened prior to the date of the municipal tort liability statue which was Chapter 576 of the Acts of 1978, I think. In any event, it was effective in 1978. So that the town simply had no liability and neither did the selectman nor public ceremonies committee nor the fire chief nor anyone else. So all the municipal boards and committees and officers were dismissed from the lawsuit. Subsequently, of course, the municipal tort liability statute came along and the town did have liability thereafter for its civil wrongs but prior to that time cities and towns had no such liability. I cite this just to show the kind of change that has taken place in the legal environment for cities and towns. The old rule of law which said that towns were not libel went back to the earliest days of the English common law - namely, the King can do no wrong, the Sovereign could not be sued. And that was the law in Massachusetts as far as cities and towns were concerned until 1978. So that statute led to a lot more activity and a lot of need for insurance and concern about the town's tort liability.
Town Meeting work. This is work involved advising town boards and committees about the drafting of warrant articles and drafting of motions under those articles and assisting interested citizens who want to put a petition article in the warrant - in putting the article in acceptable shape so that the action that they want to purpose, when they make their motion, can be properly accomplished under the warrant article and one of the jobs of town counsel is to give advise and assistance in this warrant preparation work and see to it that things are in shape so that what the town wants to do when it gets to town meeting can in fact be done. Sometimes these are zoning changes whether or not you get the article right may effect your ability to rezone the way that you want to. A very sensitive kind of thing to work is the borrowing article because if you don't get that right, the lawyers for the people who are ultimately going to buy the bonds won't pass the legal opinion on which the bonds have to rest so you really worry about making sure that these borrowing articles and the warrant are properly drafted.
And there's lots and lots of other things which came along in the period of time that I was town counsel. We drafted by-laws for the revolving fund for the water and sewer departments and other revolving funds to try to make these funds stand on their own feet and get them out of the municipal budget. We did land takings and school bonds and all kinds of things which make the town run smoothly and make the town meetings run smoothly. People have occasionally asked me why I sit halfway back in the auditorium in Town Meeting, and I always say, when somebody asks a question whether we can do so and so under the particular article which is being considered, you have that nice, long, slow walk from your seat down to the microphone at the center and that gives you a chance to think about what you are going to say and try to have it make sense and to facilitate what it is that the meeting is trying to do.
Sheila Shea. That's an example of when you don't do anything in order to serve the town well. Sheila Shea was a lady who lived a rather unhappy life and, in her will, she directed her executors to put on the back of her gravemarker in Sleepy Hollow Cemetery the words and I am quoting: "Who the Hell is Sheila Shea?" Well, the stone was put up and, with the inscription on the back of it, somehow or other it escaped the whole permit process of the Sleepy Hollow Cemetery Committee and one day, Ted Tunnicliff one of our local funeral directors, was doing a burial out in Sleepy Hollow and happened to be looking around at the adjoining plots and looked at this stone with the inscription on the back of it, "Who the Hell is Sheila Shea?" and thought that wasn't a very nice thing to have in Sleepy Hollow Cemetery and reported it to the cemetery commission and they were absolutely outraged. First of all, that this appeared on the stone and had escaped their whole permit process because they said they never would have allowed the marker to be set if they had known about it. But, in any event, the marker was there. The cemetery commissioners wrote a couple of letters to Sheila Shea executors telling them they would either have to take the monument down or take the inscription off. Well, that produced an immediate consultation status with the executors who said they were not going to do any such thing and anybody who wanted to make them, well let them try. At that point, the whole thing got to my desk and, at the same time, it got into the newspapers. And I remember getting articles from people from as far away as Florida because it got on one of the wire services - just pique the interest of somebody on the wire service, and I spent a fair amount of time considering this whole problem and a young associate in our office did a fairly elegant memorandum on various things which had appeared on gravemarkers over the years.
I was trying to think well should we have this lawsuit or not. And I had a collection of outrage letters in the file from people in town who were saying that this was really a terrible thing, that visitors on their way to graves of the Concord Authors', Thoreau and Alcott and Hawthorne, who were going to see this terrible monument and that was a hell of a note. On the other hand, this was not a lawsuit. I felt very good about it potentially. I discussed this at some length with my wife who is a very practical lady and she sort of sniffed and she said you give me two little pots of English Ivy and, in a year and a half, and I'll solve the problem. In any event, I ultimately wrote a comprehensive opinion to the town manager saying that I don't think this lawsuit ought to be brought and that, if it was brought, I wasn't very optimistic about how it was going to come out. Town manager Alan Edmond was feeling a little sick about the legal services budget at that period of time so that was the best news he heard in weeks. So the town manager acting on my advice decided that we were not going to bring a legal action to tell the monument to be changed or removed. And like everything else, it very soon went away. But that's an example serving the town properly by counseling the town manager and selectmen not to do anything. That lawsuit would have cost an awful lot of money. It would have a great deal of negative publicity and I am sure we would have made a new law under the first amendment regarding peoples' rights to put any darn thing they wanted to on their gravemarkers as long as it fell somewhat sort of outright obscenity, and I looked at Bartletts and found all the places in Shakespeare and elsewhere where the word "hell" is used, and I really wasn't able to convince myself that this lawsuit was going to succeed however poor taste the monument might have been. But you can't have lawsuits about peoples' tastes - not in the 1980's, in any event.
1988 Town Meeting Land Rezoning. The last topic that I am going to mention as part of legal work is one where I was personally under an awful lot of pressure. This was at the 1988 Town Meeting. Under one of the articles and warrants for the 1988 Town Meeting, a very large tract of land in West Concord right near Nuclear Metals and off of 62 was purposed to be rezoned. The land was owned by the trustees of Memorial Drive Trust which is a retirement or pension fund connected with Arthur D. Little. The residents of Border Road and the abutting residential community were violently opposed to this proposed rezoning and development of this tract of land. When the Planning Board had laid out Border Road, they had left two little road studs that ran from Border Road down into this area of land, in the event, that if it ever became a developed residential land, there would be a way to connect the subdivision to Border Road so there would be access other than straight out onto Route 62. Well, naturally the people on Border Road weren't the least bit happy about that possibility. The people from Memorial Drive Trust who were pushing this rezoning were proposing to put some fairly stringent restrictions on the land if the rezoning took place. In order to facilitate this process, I agreed with the people from MDT, that is the trust, to act as escrow agent for the restricted documents that, if their article passed, would go on record in the Registry of Deeds in order to make binding the restrictions that they were proposing to impose if their articles succeeded. So I became escrow agent - somebody had to do this and I was the logical person to do it holding those documents and their agreement. As we got closer and closer to Town Meeting, it became more and more clear that the people at MDT who were pushing this article, that the Border Road opposition was very, very strong and much of that opposition related to the possibility that these roads studs would be used as a means of connecting the new development which was going to be some sort of industrial park up to Border Road and allowing Border Road to be used at least in part for that traffic.
The Trustees at MDT decided, OK, we'll solve that problem. We'll close off those two road studs or we'll donate them to the town. Well, the more I thought about this the more uncomfortable I became about it because those road studs were on the plan at the time the Planning Board had reviewed that subdivision and had made its zoning recommendation and at the time of public hearing on the warrant article. And I became more and more convinced that to close off those studs for better or worse made that a different kind of land use proposition in a significant way than it had been at the time of the warrant preparation and the public hearings on the warrant. So I told counsel for the Memorial Drive trustees that I would not permit them to donate the studs to the town or otherwise to close them off that and, if they did this, I would have advised the selectmen not to accept the gift and, if they were to give those to some third party, I would advise the town moderator that the article had been so altered that the zoning proposition could not be moved under the article. This put me under very, very extraordinary pressure from some heavy hitters in the Boston legal community who were representing Memorial Drive Trust and, since I was both the escrow and town counsel, I was put under extraordinary pressure during Town Meeting to change this stand that I had decided had to be taken because if those road studs were there it became clearer and clearer that the rezoning was to fail because of the Border Road opposition. Meanwhile, the people on Border Road were lined up outside my front door, figuratively speaking, that is, to see what I was going to do because the people who were leading that particular part of the charge still weren't quite sure whether they could trust me not.
The first thing I decided to do was to be absolutely explicate and clear with everybody about precisely what I was doing so every letter I wrote I sent a copy to the town manager and so it became a public document in the Town House and I copied everybody else in the loop so that everything I was doing was public right away. I had absolutely no secrets and when I made up my mind what I had to do, I stuck to my guns in spite of the pressure that was put on me and, ultimately, the people on Border Road came to understand that win, lose or draw, I was calling that shot the way it ought to be in that I was not going to do anything to undercut their opposition. The article failed very, very substantially. It didn't even come close but I think that was the most pressure that I was ever in as town counsel. I think it had to work that way. The restrictions that they were purposing to put on the land, if they had succeeded, had to be facilitated somehow or other and this escrow scheme was a perfectly logically and workable and businesslike way of doing it. But, at the same time, being the escrow agent for the movers under the article didn't put me in their hip pocket, so to speak, in terms of what they wanted to do in order to get their article to pass. But I was certainly glad when that Town Meeting was over and I was certainly glad that the vote was not close which it wasn't because it became quite clear that for better or for worse the town did not want to rezone that land in the way that it was being purposed.
The last topic I thought we'd mention is the charter and Town Meeting. It is important to understand that the Concord town charter is the blue print for government in the town. The charter dates from the 1950's when the town switched over from a classic old New England style of town meeting into the charter which is a special legislative act crafted up, particularly, for the town of Concord and nobody else. At that time, we went from three selectmen to five and we went from what appeared to be a lot of democracy to a minimum of elective officials that you can have in a Massachusetts town. Prior to the charter let me read from the 1948 town report, the list of people that had to be voted on in 1948. These are all elected officials of the town. I am reading from page 14 of the 1948 town report and it is the warrant for the annual Town Meeting. One moderator, one town clerk, one selectman, one assessor, a member of board of public welfare, town treasurer, tax collector, three constables, a road commissioner, two school committee persons, water and sewer commissioner, board of health, light board, tree warden, trustee of town donations, seven people for the library committee, three for the cemetery committee, one for the planning board for two years, one for four, two for planning board for five, three for the recreation commission and three measurers of wooden bark. Now all of those people had to be elected under the old town government. When the charter finally was passed after a couple of tries we now have the only people we now elect are the moderator. The moderator must be elected as a matter of statute law, the members of the Board of Selectmen who must be elected and the School Committee who have to be elected. Everybody else is appointed - the planning board, the board of appeals, the major town department heads, the police chief, fire chief, public works, the whole array of town officials are appointed either by the selectmen or the town manager or some combination. Getting that charter passed was no means an easy task and that is another long, long story but the charter proposed as a result of the Bates Committee in 1947 and it was proposed in 1952 and it was defeated at the town election in 1953 and nothing happened in 1954 and it finally was adopted in 1955 and the "yes" votes were 1,386 and the "no" votes were 1,292 so it was a close, close thing and the people in Precinct 2, which was West Concord, were overwhelmingly opposed to the new town charter. I think they really - a lot of people really didn't think reducing the number of elected officials was such a good idea. As a matter of fact, these people who were responsible for the town charter were really very, very forward looking. They realized that the old town government with the selectmen and the elected treasurer and tax collector and planning board, and all that kind of thing, really wasn't going to work in the postwar years in Concord and a town manager who would be a real functioning chief executive of the town would be the way to go and they succeeded in getting this new form of government installed.
So the town manager under the charter becomes the chief operating executive of the town. One of the things you have to learn if you are a new selectman is that the selectmen do not run the town. The town manager runs the town and the selectmen sort of act as kind of a board of directors with the town manager reporting to them. So when you are sitting there in the selectmens' office and some brand new selectmen pounds on the table and says, "Well, I think we ought to get the police chief in here and ask him about this", one of the older members of the board will say, "Well, maybe we ought to ask the town manager if he thinks it would be helpful if we talk to the chief", making the point that the chief reports to the town manager not to the Board of Selectmen. Same for the fire chief and public works and all the rest of them. Well, that's a very interesting story that change in the town government and the result of it but I think it has served the town extremely well since 1953, we really have had only four town managers. Whittemore Brown was the first town manager as an interim in '56, and then we got Ted Nelson who stayed from '56 until '65, a good long stay as town managers go, then along came Paul Flynn who went from '65 until 1978, another good long stint and then we had a little interim period with Bill Joyce as the acting town manager and then along came Steve Sheiffer who went from 1978 until 1987, and then Jacqueline Kelley served as well as an interim and then along came Alan Edmond, the incumbent town manager so if you don't count the little interims, we really in that period of over thirty years, we have only had four town managers - Ted Nelson, Paul Flynn, Steve Sheiffer and Alan Edmond. And when you look at the way some of these Massachusetts towns change their town and city managers to have had only four town managers in the period of over thirty years is nothing short of remarkable but it demonstrates what a successful governmental setup the charter is for the town.
Picking up on the point I mentioned earlier, the town manager appoints town counsel. Now that appointment is made with the advice and consent of the Board of Selectmen but it is the town manager that makes the appointment and the selectmen concur or not. So that the town manager is really the administrator of legal affairs in the town and it is the town manager that the town counsel has to learn to respond to. You are not advising the Board of Selectmen. You spend a lot of time talking to them but you have to remember that it is the town manager who is going to call the shots and is going to say "OK, we go on that Sheila Shea lawsuit or we don't". The town manager has to be concerned about the legal services budget and the whole picture of how the town is running. Sometimes you have little bitty lawsuits which are very important. We had a little bitty lawsuit a year or so ago when some chap bought a house where he had a non-conforming deck on the house that stuck six inches over - protruded six inches or so into the area that had to be opened under the side yard zoning requirement. The house was built by a builder who was not very responsible for these things - the deck was an add-on. Originally, they had had kind of a terrace there. Well, the terrace could stuck out into the restricted area - they was no problem because the terrace isn't the structure. Well, then, along came along this chap that was going to buy the house and he decided that the terrace should become a full-fledge porch. Well, that becomes a structure and thus violated the building code - the zoning by-law. So that he came along and went ahead and bought the house for a very large six figure number and then asked the Board of Appeals if he could have a zoning variance. Well, the town of Concord doesn't grant so called "soft variances" on that kind of thing so he was denied a variance and, lo and behold, he sued the town. This is an example of the litigation explosion that I mentioned earlier. He sues the town and all the members of the Board of Appeals because now he has a house that doesn't conform to the zoning by-law and he knows it and he knew it when he bought it. And he has been denied a variance. The town still has not told him he has to do anything but he decided he would sort of be upfront here with the lawsuit. Well, they had a lawyer over in Lincoln that did the best he could but, I had what I thought was a great idea. We get this fellow to make a substantial contribution to the Town Conservation Fund - the adjoining land was next to the town forest so it was conversation land. We'd put a little jog in the Town Forest Conservation Land boundaries so as to legalize this fellow's porch and he would contribute to the conservation fund what he would otherwise spend on the lawsuit and we would put conservation restrictions on this little jog so that, other than a little jog in the boundary line, you could not tell the difference and I thought this was just a neat solution to the whole problem. I was really crestfallen when everybody else thought it was lousy. The selectman thought it was a lousy idea and told me so fairly candidly and the fellow who was bringing the lawsuit thought it was a lousy idea and he was not going to pay $.10 for any such solution as that to his problem. So we still had our lawsuit going.
Well, he fired the lawyer in Lincoln and he went and got himself a very high-power Boston law firm, none other than Hale and Dorr. This is the law firm with Joe Welch and Jim St. Clair and the whole bit and this was shortly before the trial. One of the young associates at Goodwin, Proctor was in charge of this case and he was pretty impressed because - he was a litigator - but he hadn't ever really tried a case all by himself. But I thought this was certainly the kind of case that could be tried by a young lawyer and he needed the experience and I was glad to see him get it. But a week before the trial, people from Hale and Dorr came running over and wanted to amend the complaint to allege that the whole Concord zoning by-law was unconstitutional. We had to call him up and ask him whether the Massachusetts constitution or the federal constitution and they said both.
Well, the case got tried. Our young associate at Goodwin, Proctor tried it against a senior partner from Hale and Dorr and, of course, we won it. We had to win. There was no other answer to the problem. But this is an example of just the intractable nature of these land use disputes with land being enormously expensive as it is. My son, who is a carpenter, kind of snorts when he heard about this and, he said, (you see I have practical people in my family - my wife with the English ivy on Shelia Shea, my son the carpenter) "Look, you give one afternoon with my skill saw and a few pieces of lumber and I'll turn that deck into a little trapezoid and it will be perfectly legal and nobody will notice and it won't bother anybody a little bit. We will just snip off the corner and tidy up the carpentry and that will be it". And, as I say, this was only a matter of six inches on corner of the deck which - he said it'll cost $500.00 for the whole thing including the lumber and all.
Well, I don't know what this fellow paid Hale and Dorr to try his case in Superior Court but I have to believe that it was not less that five and may have come close to ten thousand dollars. Which is money I would have loved to have seen in the conservation fund if my solution had been adopted but the selectmen wouldn't buy that either. So we tried the case and the town spent a fair amount of money on it also because our young associate (I was trying to staff the case as economically as I could at an hourly rate) and he did a great job and we won. But it was one of those cases when it is all over, you say to yourself why in the world did this case ever have to get tried? It didn't make any sense at all - but there it is. So that is another example ...
Well, let me wind up with just a comment or two about the open town meeting. All the town managers have been wonderful. I think they all have been wonderful. They have gotten support from the Board of Selectmen and that is the important thing. They have been very carefully recruited and you talk to people in the town manager business - the municipal executive business - and the Town of Concord is well-known. When we go on a search, we had applications - I wasn't on the committee - but we had people from everywhere east of the Mississippi applying for this job. It is a well-paid job and, in addition, to being a well-paid job, it is well-known that the selectmen support the town manager. They back up the town manager as I think they must because, Lord help us if we ever come to the point when we think the selectmen can run the town. That's what the charter was supposed to stop. So we have been very lucky in the people we have recruited and the length of time that they have stayed and the fact that we, basically, have had four town managers in over thirty years testifies to how successful that recruiting has been and how responsible a job this is. And how that charter just has to be made to work and people have to understand what their roles are - the selectman and the town manager, particularly, and the town employees have to understand, like it or not, that they don't work for the selectmen and they don't run their own show so they work for the Town Manager. And he or she is the person that they have to satisfy. And, if they don't, there are going to be problems.
Well, let me just a word about the open town meeting. We are constantly hearing that the open town meeting is passe and that we should shift to a limited town meeting as they have in Belmont, in Wellesley, and other towns where you recruit people who run as town meeting members from the various precincts and the voting members of the town meeting are these people who get elected. Anybody can go and talk but only the town meeting members can vote. I saw this happen in Wellesley and I always thought it was just a lousy idea and the more I have seen of it the more I am convinced that we should stick with the open town meeting. We now have a statute - we have had for a long time - that will enable us to conduct the town meeting in two halls with the PA systems linked together and an assistant moderator in a second hall. Only once in the thirty odd years that I have been going to town meeting can I remember did we have to go into a second hall. Once or twice the moderator had to kick visitors out of their seats in order to sit voters and that kind of thing but we have not had a problem with overcrowding of the hall - particularly now that we can use the Sentry Center which I hope we can hang on to because it is a wonderful, comfortable hall and a lot better than the armory. Then people make the argument that factions can pack the town meeting and this does happen. You have a bunch of people, for example, on this Border Road article this past year who are passionately interested and, of course, they come trooping down in great numbers to be there at the time that article gets voted on and make sure that their vote gets counted. Well, that's basically the way that it ought to work and the fact that people get interested and come does not seem a valid objection. Now to be sure there is probably a hundred die-hard people, and you and I can sit down now and make a list of them and we would be pretty close to right, who will always stay to the bitter end on Monday night. They'll be there right at the last bitter end when the streets are being accepted and those funny housekeeping articles - the light plant are being voted and that kind of thing - when everybody else has gone home and you wish you could go home but it isn't over yet and you stay there and get it done. And that is all right too. But you look at these towns, Belmont, for example, and, I think, Wellesley, too, where you cannot get enough people to fill the town meeting member slots in the various precincts. You have say five precincts as we have now and you decide you are going to have a hundred from each precinct to give you five hundred person membership for the town meeting. It is not easy to get a hundred people from every precinct who will agree by running so that they'll agree by their candidacy that they're going to go to all public hearings - they'll go to the Planning Board hearing, they'll go to the selectmen public hearing, they'll go the the Finance Committee - if the town meeting runs five or six nights they'll go and they'll sit there until the bitter end, or should if they are responsible members. People don't want to do that and it is not easy to find a hundred people who will agree to run for that. People don't want to do that. They love to come to town meeting and they'll go to public hearings, if they feel like it and if it is convenient and all the rest of it, but they don't want to be put on the spot. It is sort of like being tagged for jury duty.
So that I think that the open town meeting runs well. I think that it is terribly important the the moderator facilities the running of the open town meeting so that we don't talk the meeting to death. I think that we do a wonderful job on that. I think that the moderators that I have known in Concord - Livingston Hall, Bert Newbury, Pat Moulton and the incumbent moderator, Gordon McCouch, have just done a wonderful job. The town meeting is a talky thing and there are people who do try to talk on every single article in the warrant and this is very boring and very frustrating but I have a passionate belief in the fact that the Concord Town Meeting. When you come right down to it, it is a very responsible form of self-government, and long-term, the town runs best in this way. And as long as I have any energy and a voice to talk about it, I am going to continue to be a strong believer in the open town meeting and making sure that it works in the very best possible way which is not to say that this is easy. It is not easy and all of the work that goes into the pre-town stuff - the warrant and the meetings and the preparation by the boards and committees and the work with the moderator, all of that huge amount of work that goes on behind that scenes is done in substantial part to see that the meeting goes smoothly and accomplishes its corporate will for the government of the town as efficiently as it can and our time constraints on how long people can talk and all the rest of it serve that purpose. So I really believe in the open town meeting and I hope that we can hang on to it for a good long time.