The turf war between Johnson Golf, Inc. and the Town of Duxbury continues and now the charges have become personal.

A flurry of pretrial motions in Johnson Golf Management, Inc.’s civil lawsuit against the Town of Duxbury includes allegations that Town Counsel Robert Troy “was not being truthful” in statements made at an October 4, 2010 Board of Selectmen’s meeting and in a January 27, 2009 hearing before the court.

Troy flatly denies he intentionally made any false statements.

“If I said it, I felt it to be true at the time,” said Troy. “I take umbrage at the charges.”

At the crux of the lawsuit is language in the town’s October 2008 request for proposal (RFP) seeking bids on a five-year contract for management of the North Hill Golf Course and Country Club. Johnson Golf Management, Inc. alleges that the town and the North Hill Advisory Committee, which included Recreation Director Gordon Cushing, conspired to change the language in the RFP from previous town RFPs by including the phrase, “comparable business enterprise.” Douglas Johnson is the owner of Johnson Golf, Inc. Additionally, when the first RFP was determined by town officials not to be compliant. A second RFP was put out to bid in January 2009. That second RFP was slightly altered. Language in the first bid included “flat yearly payment to the town” but was changed in the second bid to delete the word “flat.” This one word omission, Johnson charges, altered the bidding process to make it more favorable to Calm Golf, LLC, which eventually was granted the contract. Johnson alleges without the change, Calm Golf would have been disqualified from the first bid because it offered a percentage return to the town.

Though those four words – “comparable business enterprise” and “flat” -- may appear innocuous, they form the basis of Johnson’s lawsuit filed in January 2009.

According to a March 25 motion filed by the plaintiff’s attorney Stephen Follansbee, Troy allegedly made false statements to Middlesex Superior Court Judge Herman Smith. In the January 27, 2009 court transcripts, Troy stated, “…But he left out ‘or comparable business enterprise’. The town hired a consultant to do this because they wanted to open it up to people other than people running a golf course,” (emphasis added by editor).

Additionally, Follansbee states in his motion that when Town Counsel Troy addressed an October 4, 2010 Duxbury Board of Selectmen’s hearing, he responded to a question from then Selectman Christopher Donato asking who drafted the RFP. Troy responded:

“…In this particular case it was decided that the matter was so specialized that we actually went outside of Town Hall and hired a procurement company. Do you know the name of it. [MR CUSHING: Not off the top of my head.] MR. TROY: I know they’re in Plymouth, to design those. There’s been much said about there was some kind of conspiracy or something at Town Hall. The honest answer is that Town Hall had nothing to do with the entire procurement document. It was sent out to a vendor who had expertise as we understood it in the field of golf course procurements. And I believe, I don’t remember, it was a woman. [MR. CUSHING: Uhm-hmm.] MR. TROY: It was a woman who has a company in Plymouth. We have the information here. So what happened was that was the – that company designed the RFP completely. There was no input here at Town Hall, except that I added as I do in all when it came in, the language which we used to protect the Town in the procurement process that we reserve the right to reject all bidders if it’s determined to be in the best interest of the Town of Duxbury.” (sic)

In a series of four emails with the subject line “North hill RFP” (sic) sent by Cushing to Troy, MacDonald, the then-Board of Selectmen, and/or other town officials, language and revisions within the RFP are referred to repeatedly. The emails were obtained by The Clipper from several sources, and later from Troy, and do not include any responses from Troy. The emails were sent beginning September 19 - 26, 2008, more than four months before Troy’s statements to Judge Smith and more than two years before Troy’s statement to the Board of Selectmen.

The first email directed to MacDonald, Madden, Sullivan and various other town officials describes, “…language about unanticipated and unforeseen expense costs… as Andre [Martecchini] had spoken about at the meeting,” and a question Cushing directed to Troy where Cushing sought guidance: “Mr. Troy could review the changes I made per your instructions. They should all be there. I paid close attention to the ‘comparable business enterprise’ part.” (sic)

Two minutes later, Cushing sent a follow-up email apologizing for not attaching three files, one of which was titled RFP.doc (57KB).

In response to that email, Martecchini wrote, “Bob Troy will have to determine if that is legal under the bidding laws,” referring to a proposed alternative practice facility.

A September 19, 2008 email sent by Cushing to Troy and Duxbury Finance Director John Madden reveals that revisions were being made to the “package” and still needed “legal review.”

A September 24, 2008 email from Cushing to Troy, subject line “RFP,” stated, “Hi bob richard wanted me to get a hold of you today if possible and just check on the RFP… r we good to go…???” (sic)

A September 25, 2008 email from Cushing to Troy with attachments titled “RFP & Management and Agreement.doc” stated, “Bob, changes as you indicated the only part I may have wrong is the default by bankruptcy I am standing by… for your call.” [Editor’s note: Cushing’s phone number was deleted by The Clipper.]

In a September 26, 2008 email from Cushing to various town officials, including then Selectmen Betsy Sullivan and Martecchini, and forwarded to Troy, he referred to the RFP and stated, “Thanks to all for your hard work and help..this is, I think, a good document, better than before and represents a tremendous number of hours of work!!” (sic)

Included in that email is a postscript from Cushing addressed to John Madden, “John I never heard from the Plymouth lady. . so I assume no news is good news.” (sic)

In response to then Selectman Donato’s request at the October 4, 2010 Board of Selectmen’s meeting asking Troy to provide to the board information on the consultant, Donato provided The Clipper with copies of two emails he and other town officials received from Cushing sent out on October 13, 2010.

The first email has a time stamp of 11:34:53 a.m. and is addressed to the board of selectmen, town manager, finance director and other members of town administration. Copied on that email is Town Counsel Robert Troy.

The email is an itemized account of the North Hill RFP process. In it, Cushing states that the development of the RFPs included the input of, “The North Hill Advisory Committee, Town Counsel, Town Finance Department, Town Manager the Board of Selectman… “ (sic) Under item number seven Cushing wrote that an example of such input was, “(a)m example would be that Town Counsel wanted the specific language of “comparable business entity” inserted into the evaluation criteria.” (sic)

Under item number 8:

“After gathering comments the draft was reviewed by a woman who worked for the Town of Plymouth. I sent it to her for comments and possible changes and corrections, and received none back. At the same time I forwarded a copy to the inspector Generals office for comment. I discussed the RFP with a member of the staff there and made changes if necessary.” (sic)

Yet in an email Cushing sent five minutes later to the same recipients, Cushing wrote he had sent the incorrect memo. In that second memo, item number eight is significantly different and makes no mention of the consultant giving input to the RFP:

“After gathering comments the draft was reviewed by Pamela Hagler procurement officer for the Town of Plymouth. At the same time I forwarded a copy to the Inspector Generals office for comment. I discussed the RFP with a member of the staff there and made changes if necessary.” (sic)

Reached last week, Cushing repeatedly said, “I wouldn’t be able to comment on the case because it’s ongoing.”

Though both memos were sent as attachments and as a result neither has a time stamp. Donato said they were sent in the order presented here.

“I called Pam Hagler and left a message within minutes of receiving the email,” said Donato, who in his tenure on the board of selectman was a vocal advocate for transparency in government. “The next day, she got back to me and told me she played absolutely no role. I kept trying to get more information, but I was constantly derided and asked whose side was I on by Betsy (Sullivan) and Shawn (Dahlen).”

For Troy’s part, he now says that the North Hill Golf RFP was not reviewed by an outside consultant.

In response to the March 25 pretrial motion made by Johnson’s attorney Follansbee, Troy responded with his own motion that he said he filed with the court April 13 and his associate Craig Jordan confirmed he himself filed in which he wrote of the allegations:

“It has since been established that the consultant played no role in the development of the RFP. This fact makes it clear that Town Counsel’s statements were not accurate. But it does not mean that Town Counsel had knowledge of the inaccuracy of the statements when they were made. Johnson, without any evidence, erroneously concludes that the statements were misrepresentations and not statements believed to be true but were later found to be inaccurate.” (sic)

Reached by phone at his law office in Sandwich, Troy, who has been Duxbury’s town counsel for over two decades, reiterated his claims that he has always acted in the best interest of Duxbury and that the personal accusations made by Johnson are false.

“I never lied and I did my best,” said Troy. “I make many, many statements. If I made an erroneous [statement] or if my knowledge base were inaccurate, I take responsibility for that.”

When asked who was responsible for adding the term “comparable business enterprise” to the RFP, Troy responded, “The language was reviewed by me, sent to Town Hall and it was put in by Mr. Cushing. He did the RFP.”

Asked to clarify if Mr. Cushing was responsible for the insertion of “comparable business enterprise,” Troy was clear.

“We have documentation of this,” said Troy “I made two sets of recommendations with respect to what I thought the language should have. They were transmitted to Mr. Cushing. He then, in consultation with people via email… I recommended that “comparable business enterprise,” no question, but he put it in. We have documentary evidence that supports this.”

Troy added that he did so based on a publication issued by the Inspector General’s office that he interpreted to mean it was allowable.

Follansbee said he, too, has seen the Cushing emails – they were sent to his office April 10 by an associate in Troy’s office.

“Remarkably they sent me material I believe, and anybody who’s neutral would believe, supports my allegation,” said Follansbee. “Troy flat out said there couldn’t be a conspiracy because he flat out denied the town had nothing to do with the RFP. The very words that have been very important to us is ‘comparable business enterprise.’ Cushing has testified (in pretrial deposition) that ‘comparable business enterprise’ came from Atty. Robert Troy. I was as stunned as anybody… I’ve only been at this 38 years and I’ve never heard of this. I can’t begin to describe how amazed I was.”

The current Chair of the Board of Selectmen, Ted Flynn, said he wasn’t aware of the March 15 motion by Follansbee containing allegations against the town counsel that Troy “was not being truthful.” He said he may have been forwarded an email by Troy that included it, but he couldn’t be certain. Asked if the allegations against Troy concern him and if there’s been discussion of removing him as town counsel, Flynn said no.

“Do I believe the accusations that there was some kind of conspiracy?” said Flynn. “Absolutely not. Were there mistakes made? Probably, but we have to see how that all plays out. But there’s been no discussion about dismissing town counsel.”

Selectman Shawn Dahlen agreed with Flynn. He said the town properly conducted itself in all matters and so far the town has prevailed before the court.

“I can tell you categorically the Board of Selectmen hasn’t met nor contemplated firing Bob Troy,” said Dahlen. “This is an ongoing saga relative to North Hill.”

The newest member to the board, David Madigan said the Board of Selectmen will meet twice in executive session to discuss the charges, causing him to cut short his vacation. The first session is scheduled for Thursday, April 19, the second on Monday, April 23. He said he had not yet seen the Follansbee motion, but like Flynn, he couldn’t be certain if it was included in the hundreds of pages of documents he had recently received from Troy. Madigan, who was elected on March 24, said he expects to make public all aspects of the case so long as it doesn’t compromise the town’s position in the lawsuit. He noted that the documents cited were all public documents and should be made available to the public.

“I want it to be a more open process,” said Madigan. “I don’t want there to be any surprises. We’ll sort through it, but, hopefully, we’ll have some public comments. There’s nothing worse than waking up one morning then having to go to a Special Town Meeting (to allocate funds for a settlement) because of something that could have been avoided.”

Town Manager Richard MacDonald declined comment citing pending litigation.

Further complicating matters, Troy is scheduled to be deposed by Johnson on April 20. Considering he may be called as a witness, he will not try the case on behalf of Duxbury. That role will fall to Leonard Kesten, a partner with Brody Hardoon Perkins and Kesten LLC, a high-profile Boston-based law firm.

Kesten is leading the town’s defense in a civil case brought against the town by former police chief Mark Deluca. Asked whose interests he represents in the case, the insurance company’s or the Town of Duxbury’s, Kesten was unequivocal.

“I represent the defense in the Johnson Golf Case, along with Mr. Troy,” said Kesten, noting Troy may be called as a witness. “A lawyer who is a witness in a case cannot try the case, but can participate in defense of the case up until the trial. But it has yet to be determined if he will be a witness.”

Kesten noted he did not make any pretrial motions; all were submitted on behalf of the Town of Duxbury by Troy. When asked the origins of the three words, “comparable business enterprise” and how they came to be in the RFP, Kesten referred to a deposition Cushing gave under oath.

“I think it’s in the motion that Mr. Cushing testified under oath who put it in the RFP and that’s Mr. Troy,” said Kesten.

Asked if this concerns him as he goes forward in his defense of the Town of Duxbury, Kesten said, “All cases have strengths and all cases have weaknesses.”

The trial is scheduled to begin Oct. 1.

To read Johnson Golf Management, Inc.'s motion dated March 15, click here.

To read the Town of Duxbury's cross motion dated April 9, click here.