Special counsel report due to the CRA likely not the report citizens wanted
Chris Bator, a federal prosecutor since 1990, is co-chair of the Legal Committee for the Cambridge Redevelopment Authority. (Photo: Marc Levy)
The Cambridge Redevelopment Authority is due to receive a report from special counsel at a May 15 meeting, said Kathleen Born, chairwoman of the authority’s board.
The board signaled at its April 17 meeting that the report was coming, prodded by resident Steven Kaiser noting that the report was missing from the April agenda despite the fact it was first scheduled for release in late March.
“These things take time,” said board member and Legal Committee co-chair Chris Bator, a federal prosecutor since 1990.
The minimum that the Boston law firm Donnelly, Conroy & Gelhaar has been doing since being appointed by the board Nov. 5 is looking into the personal finances of Joseph Tulimieri, who was executive director of the authority from 1982 until his forced resignation Sept. 27. The five-member board, all of whom became active in April 2012 after a 32-month “quiet period” with zero board activity, had identified irregularities in how Tulimieri assigned himself salary, bonuses, part-time wages and retirement compensation.
In a Nov. 20 article in the Cambridge Chronicle, Born is quoted as saying the law firm had an open-ended budget starting at an estimated $65,000 and a charge to “examine whether salary increases and other benefit enhancements received by the former executive director were properly authorized.” The Chronicle’s Erin Baldassari reported that Born “did not say if the probe would look deeper.”
“I’ll be furious”
Two of the authority’s most faithful citizen participants said they would be disappointed, to say the least, if the Donnelly, Conroy & Gelhaar report was limited to looking at whether Tulimieri gave himself money improperly.
“If we get a whitewash, I’ll be furious,” Kaiser said. “I would have expected a lot more.”
“I’m extremely disappointed if that’s all they’re doing,” said Heather Hoffman, an East Cambridge resident who was alarmed by last summer’s loss of much of a rooftop garden in favor of office space – a plan presented to the City Council by Tulimieri when there was no active board. “And if that’s all they’re doing, why did it take so long?”
While answers may come May 15 on that point, Hoffman echoed Kaiser in saying “people assumed there would be a real look at things, not whitewash No. 2.”
City Council candidate Tom Stohlman was more cautious in assessing whether the authority board had implied an independent counsel would look at anything more than Tulimieri’s own pay package.
If the report is limited to Tulimieri’s pay, though, there remain many questions about what Tulimieri was doing during that 32-month “quiet period”; whether anything he did during that time was legal; and why the authority’s longtime counsel, Foley Hoag, didn’t do anything about it.
Bylaws and the board
Tulimieri didn’t have responsibility for appointing members of the board; City Manager Robert W. Healy has that power for four members, with the state having authority for the fifth. But over the years board members have been allowed to stay past the end of their terms whether they retired, resigned or moved away.
The state appointed Barry Zevin as its member Sept. 27, 2009, and then-city clerk Margaret Drury – now a board member herself – swore Zevin in on Oct. 23, 2009, and told the state so in a letter dated four days later. Through a quirk of the process, Zevin’s term technically expired a month later. As he’d been told he would be contacted to take part in board activity and never was, he assumed “somebody else had been appointed,” he said last spring.
Although Tulimieri was told by the state Zevin had been appointed and was used to working with board members whose terms were technically expired, he never contacted Zevin, basically signaling the start of the “quiet period” with Tulimieri as a one-man authority. The former executive director has also claimed no action on trying to correct the lack of board members. When asked in March 2011 how the authority was doing business, Tulimieri said the board had three members – enough for a quorum – even though he was in the midst of his 30th consecutive month without a board meeting.
Monthly board meetings are required by the authority’s bylaws.
When the rooftop garden deal benefiting Google drew attention, the situation finally came to an end. Zevin was activated and Born, Bator, Drury and final member Conrad Crawford were appointed and sworn in.
According to current authority counsel Jeffrey Mullan, “the bylaws are pretty clear [that power] does lie with the authority,” but it is not clear that then-counsel Sandra Shapiro took any steps to ensure Tulimieri was following the bylaws either in acting under orders of the board members; calling meetings of the board; or seeing that either of those bylaws were literally possible.
The report
Residents were united in calling Shapiro and Foley Hoag’s involvement in the look-back report a conflict of interest.
“You have legal counsel writing a report on its own activities,” Stohlman said, followed by Hoffman calling it “such a colossal conflict of interest,” Carol Ballew saying that, “if anything, I’d have expected an independent review,” Michael Brandon asking for “outside counsel at the very least and possibly even with law enforcement authority” and Charles Teague summing up that “it’s clear bad things happened. Unfortunately, it’s clear the bad things continue.”
The “look back” at the 32-month “quiet period” had been promised in July, with Born saying the review would “evaluate whether appropriate votes and procedures were taken during that time and followed in the absence of a full quorum.”
The board accepted the report in September. Although members of the public were appalled and numerous shortcomings were cited, Born said the report “was exactly what we expected and very well done, and I would like to congratulate counsel on it.” It was labeled a “final report,” although members of the board took pains to assure the public that their plan was to accept the report and likely discuss it over the course of several meetings, with Born saying “it wasn’t just whipped off as ‘accepted’ tonight.”
I want to assure members of the public that if the board has any reservations or worries about this, we can always ask for an independent review. But right now this is definitely the place to start. This law firm knew the material better than anybody else. It may be all the board decides we need and it may be a beginning, but we needed this context in order to begin to have this discussion about whether there was anything that needed to be remedied or redone or not.
Discussion of the report appears on no agenda since its acceptance. Nor has there been off-agenda discussion by the board to the best recollection of the most frequent attendees of board meetings.
Tulimieri resigned the same month that the report was accepted, and the announcement of an independent counsel accompanied his departure.
An independent counsel report May 15 on “whether salary increases and other benefit enhancements received by the former executive director were properly authorized” will beg the questions: If salary and benefit actions Tulimieri took on his own weren’t properly authorized, how could the actions he took alone on development in Kendall Square be properly authorized – especially since Foley Hoag has said “actions taken in the absence of a quorum do not survive”? If they were proper, where is the documentation or precedent showing it? If they weren’t, why didn’t Foley Hoag take action?
The board meets at 5:30 p.m. May 15 in first-floor community room of Cambridge Police Department headquarters, 125 6th St., near Kendall Square.
If this actually cost the estimated $65,000, not only am I in the wrong business, but it sure makes the $40,000 appropriated for a structural etc. review of the Foundry look like a bargain.
It strikes me that Sandra Shapiro, the law office of Foley and Hoag and Joseph Tulimieri should be required, at a minimum, to repay any monies which they were paid for services not provided at a reasonable level of expectation, or for any raises, bonuses and other perquisites lathered on Mr. Tulimieri, apparently authorized, voted to and agreed upon by himself alone.
At a minimum, these funds should be recaptured and ALL votes and actions of the authority from this period of rogue, quorum-less, member-less activity should be nullified. Realizing this throws some pretty important decisions into limbo, possibly affecting millions of dollars of development money, I would also try to find a way to make Mr. Tulimieri the target of any resultant suits.
Furthermore, if the CRA continues to treat this as a non-criminal act on the part of a former employee, all the appointees should be fired before they have the chance to make even one more stupid decision.
Come join the fun May 15, Mr. Stone. There’s plenty of room, so bring your friends. Public comment is generally taken at the beginning of the meeting.
To Cambridge Day :
In the beginning the CRA goal in hiring a Special Counsel was to reduce the change for a conflict of interest by General Counsel Foley Hoag. Last Fall I thought it would be a good idea, but I thought the report would be more than simply a look back at Joe Tulimieri’s financial dealings with the Authority. Originally the investigation had been packaged to be done by a “Special Counsel and Forensic Auditor.” It sounded at the time as an effort to “follow the money.”
I wonder if it makes sense to spend $65,000 to document what we already know about Mr. Tulimieri’s creation of a position for himself and awarding a salary and paying himself for unused sick time. All of those decisions were made after he formally retired at the end of December 2010. Mr. Tulimieri also made decisions and wrote letters in the name of the Authority during the entire year of 2011 and during 2012 until he “resigned” in September 2012. One useful judgment we might receive from the Special Counsel is that indeed those decisions were illegal. Because he had no legal position with the Authority, there was nothing for him to resign from. Thus his 2012 resignation letter is void as well.
What are the illegal actions that Mr. Tulimieri took since December 2010? Any actions he took with respect to the Google project, the Microsoft project, the Broad expansion and the Biogen-Idec expansion. Mr. Tulimieri’s participation in the Kendall Square Advisory Committee representing the Authority was also unauthorized and illegal. There may be more, especially any authorization of financial payments/receipts he may have made in the name of the Authority.
When I first heard of the crisis at the CRA, with 32 months of no Board meetings, I referred to the Authority’s time spent not-meeting as a Black Hole period. Reflecting on the history over the past 15 years, I would see three separate Black Hole periods:
(1) The period when Mr. Tulimieri was not legally employed or contracted with the Authority, dating from January 1, 2011 through September 2012.
(2). The period when the Board was not holding public meetings as required by law, dating from September 2009 through April 2012, This period is also referred to as the 32-month time when the agency “went underground.”
(3). The period dating from the late 1990s when the Authority had only three identified members, yet one of them was no longer living in Cambridge and thus no longer qualified as a member. Many meetings through July 2009 were clouded by not having a proper quorum.
In his report last year, Mr. Mullan discussed only Period (2) above. His report included a detailed tracking of the status of Mr. Zevin from his state appointment on September 27, 2009 — the exact same day that the Authority would have scheduled its regular monthly meeting. The Board meetings suddenly stopped that very day. The Authority immediately went underground for several months until they attempted one illegal and voided meeting the following March.
The suddenness of the cessation of the Board meetings is of great significance, because it suggests that the problems of the Black Hole periods were not all of Mr. Tulimieri’s doing. He should not be scapegoated for everything that went wrong. There were others involved in the Black Hole activities.
The General Counsel’s report was prepared at the request of the present Board, and there are legitimate concerns about the propriety of such an effort. I am more concerned with the fact that the normal role of the General Counsel of any agency is to protect the agency and its leadership from any challenge. A Counsel’s opinion in such political situations is almost always defensive and self-serving. I found the content of the Mullen Report to be far more detailed and useful than I could ever have hoped for. The work was incomplete from my perspective of seeking a comprehensive view of all that was going on during the Black Hole periods. However, the scope of work is determined by the Board, and not the Counsel.
Similarly, during the Black Hole periods, the General Counsel appears to have been on-call only, with minimal billings. The Counsel could have been isolated from the Black Hole operations. Technically the relationship during the Black Hole period might have been nothing more than reviewing the legality of maintenance contracts. However, the Counsel must have known at the time that something strange and possibly illegal was going on. As in Watergate, we need to find the response : “What did they know and when did they know it?”
I have also heard that the State Ethics Commission is interested in the CRA situation, but that its interests may extend no further that Mr. Tulimieri and his contractual relation after his retirement. This intervention could mean that that a gag order will apply and our ability to see any “report” from the Special Counsel could be delayed for months or longer.
The name “Ethics Commission” is quite misleading because the jurisdiction of the Commission extends ONLY to conflict of interest — and nothing else. If there are ethical/legal flaws during the Black Hole periods that are NOT narrowly related to conflict of interest, we should inquire whether the current Board can investigate only those issues, independent of the Commission.
One of the difficulties faced by the present authority is the departure of all previous CRA employees, with accompanying loss of “institutional memory.” The Board has had to struggle with a steep learning curve. It has had to deal with financial, legal, procedural and public relations issues that were formidable given the length of the Black Hole periods. Foley Hoag would have some institutional memory of the Black Holes. The best memory would come from Boston Properties, who continued their role as private developer at Kendall Square throughout the Black Hole periods. I would presume that BP consulted with their own attorneys to determine the propriety of continued development activity in the absence of Board meetings. A report to the Board by BP would be very informative.
Several observers have noted the responsibility of the City Manager in making appointments to the Authority Board. The Manager has properly taken the responsibility for not making the appointments in a timely fashion. However, it must also be remembered that any appointments to the Board must also be ratified by the City Council. In the past there have been somewhat obstreperous Councillors who would be likely to take exception to the Manager’s appointments.
Stephen Kaiser
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