A difference in opinion in procurement laws and procedures may result in the seeking an injunction against its own if the two sides cannot reach a resolution.
Procurement is essentially purchasing powers. Since becoming Stoughton Town Manager, Francis T. Crimmins, Jr, who serves as chief procurement officer for the town, has sought to tighten procurement policies and centralize purchasing for all departments in town, the schools included.
As stated in a memo Crimmins sent to all department heads, boards and committees on Dec. 7, 2011:
Section C4-2(H) of the Town Charter states that the powers of the Town Manager are “To purchase all supplies for every department of the Town, except books for the schools or the public library. He may delegate the responsibility to purchase supplies to an authorized representative and may revoke such delegation at his will.”
According to a memo issued by acting chief procurement officer Lindsay Pope:
The Inspector General’s Office as well as the Attorney General’s Office governs all supplies and services (including construction and public works) for the state. They go mainly by Massachusetts General Laws 30B, 30 39M, and 149. These three laws are the bread and butter of how to buy anything in the state as a public entity. Municipalities are required to follow these laws.
Awards for bids, proposal openings, and request for quotes must only be given by the Chief Procurement Officer (CPO) designated through the Inspector General’s Office by the Town in order for that procurement to be valid. If a procurement is not valid that procurement cannot be paid for or acquired in any way using public funds.
The schools have not complied with these efforts, town officials say, and therefore are in violation of state law. Pope points to multiple violations, the most recent being a bid opening for a $400,000 to $600,000 roof at the .
In response to selectman Steve Anastos’ question, “Do you think the Superintendent knowingly and willingly violated procurement laws?” Pope answered, “yes.”
But the schools say this simply isn’t the case.
“The school committee has particular rights,” Superintendent of Schools Dr. Marguerite Rizzi told reporters during a recess at Tuesday’s board of selectmen meeting.
“The town manager wants to take over the entire process…it’s unnecessary, unfortunate, [and] in the end he’s not going to prevail.”
The school department has had procurement powers since 1990, Dr. Rizzi said. She said “for years [the schools have had] a very effective, efficient and smooth procurement policy. The process is working really well.
“We get audited all the time,” and there have been no issues, Dr. Rizzi said. “If it ain’t broke don’t fix it.”
During Tuesday’s meeting, Crimmins said, “it is ludicrous that they [the schools] don’t comply.” He referred to a procurement policy adopted by Selectmen in November of 2008; a Designer Selection Policy adopted by selectmen in March of 2011; and the December 7, 2011 memo, which welcomes procurement officer Lindsay Pope and lays out the town’s procurement procedures.
Crimmins, in separate documents dated Dec. 6, 2011—the day prior to issuing the aforementioned memo—delegated procurement powers to Pope and to town accountant William Rowe. On Dec. 6, Crimmins also revoked the procurement powers of the Superintendent of Schools and the Deputy Fire Chief. The following day, Crimmins delegated limited procurement powers to Dr. Rizzi.
“The Superintendent of Schools has been delegated to purchase all supplies and services for the School Department not to exceed $24,999 per vendor per fiscal year,” the December 7, 2011 memo states. “This authority cannot be re-delegated by the Superintendent to any other individual.”
Joel Harding, the supervisor of support services for the schools, had handled procurement for that department in the past.
“The charter does say [the town manager] can revoke procurement,” Dr. Rizzi said. “There was no need to do that. He didn’t need to get the procurement officer involved, but he did.”
In an effort to change this, the school department submitted an article to be considered at the to change the language of the town charter to:
“To purchase all supplies for every department of the Town, except [THE SCHOOL DEPARTMENT], or books for the public library.
Selectmen voted not to support that petitioned article.
Anastos asked Dr. Rizzi at Tuesday’s meeting why this article was necessary if she “believes [the schools] are exempt from procurement law…?”
“The school department and the school committee do not in fact believe that we are exempt from procurement laws or any laws and that is in fact not the issue,” Dr. Rizzi responded.
Both sides expressed the desire to avoid going the legal route to solve this matter.
But in her memo (which as of Tuesday’s meeting school officials had not received), Pope wrote: “This is a problem that has now elevated to knowingly breaking the law and must be solved immediately.”
I have talked in depth of these issues with both the Inspector General’s office and the Assistant Attorney General Brian O’Donnell. Both have advised me to stop all ability of the school to advertise for any new projects in excess of their designated thresholds through the Inspector General’s Office…They have also advised me to move forward with an injunction through our town Counsel at Kopelman & Paige…I was advised to do this because both Offices felt as though the School Department has been given proper notice, proper time to comply, and refuses to respond positively to that notice and are now breaking the law intentionally.
“The superintendent of schools is under the impression the laws don’t apply to her,” Crimmins said. “Don’t blame Lindsay Pope, she’s trying to make it right.”
Dr. Rizzi took exception to these claims: “I somewhat take umbrage at the implication that anyone in the school department does not respect the trust that has been given to us. There are no improprieties.”
Attorney Brian Riley from Kopelman & Paige was in attendance at Tuesday’s meeting. When asked by selectman John Anzivino if he felt the laws were being violated, Riley responded: “I do believe aspects of procurement laws are not being followed.”
But Riley cautioned selectmen about pursuing legal action. “I would not like to see [the town] racing into court to see a judge…I would like to think there’s a better way for the town to resolve this.”
In a letter to Crimmins, dated March 28, 2011, Riley wrote, “In general, the Town Manager has primary contracting authority, but the School Department does have more independent authority than other departments…”
However, Riley continued that a former Town Manager “may have” delegated his procurement powers to a former Superintendent, but, “Unless such a delegation is in writing and filed with the Commonwealth…this delegation is not effective, and such delegation may also be rescinded at any time, provided that the rescission is also in writing and filed with the Inspector General.”
Riley wrote that the town manager does have authority to handle purchasing supplies for all departments, except for school and library books. But, “Since the Charter does not include service contracts, however (hiring a contractor for minor repairs for example), the School Committee is exempted from the purchase order requirements…for service contracts, in my opinion.”
A memo from a School Department Attorney, Bryan R. Le Blanc of Murphy, Hesse, Toomey & Lehane, went further, and opined that:
Nothing…bears upon the authority of the Stoughton Public Schools to procure Designer Services or Public Building Construction Services. Ultimately Designer Services and Public Building Construction Services are services, as contemplated under Massachusetts public procurement law, and not supplies, as contemplated by Massachusetts public procurement law.”
In a discussion that was heated between the selectmen and members of the school department, and even between members of the selectmen themselves—chairman John Stagnone and Anastos spent nearly a minute shouting over one another—the selectmen ultimately decided that Crimmins, Dr. Rizzi, Pope, Stagnone, School Committee Chair Joyce Husseini and Atty. Riley would meet in an attempt to resolve the matter before legal action was taken.
Selectman Cynthia Walsh said she wanted to see both sides to “try to come to a resolution to satisfy the law.”
Selectmen asked for a resolution by their next meeting, Feb. 7.