Although the town counsel has criticized the behavior of previous Duxbury officials, the town will appeal the latest court decision in the five-year imbroglio over management of the town’s golf course.
After a closed-door session Monday night, selectmen voted unanimously to appeal the Sept. 13 decision of Superior Court Judge Kenneth V. Desmond Jr., who backed a jury’s decision earlier this year that the town violated bidding and consumer protection laws.
Desmond did, however, reduce the amount the town would have to pay for the opposing attorneys’ fees. At this point, the town owes $839,800.
“The decision of Judge Desmond is correct; the decision to appeal it is regrettable,” said Stephen R. Follansbee, lawyer for Douglas W. Johnson, who in 2008 accused the town of bid-rigging when it chose another company to run North Hill Country Club after 13 years with him.
Follansbee said the town will have to pay 12 percent interest on the judgment amount if it loses on appeal.
The town argued that it should not have been subject to 93A, a statute that generally applies to business activities, and that if there are any damages, it should be determined under 30B, which deals with the awarding of government contracts.
Attorney Leonard Kesten, who is representing the town, said he does not believe the consumer protection statute applies to the public bidding process.
“I think in the end, the town will win; however, the conduct was awful,’’ he said.
Desmond said the town was not immune to the fair business statute, which called for the damages of $200,000 to be doubled.
“Duxbury officials repeatedly lied to the Court, the Inspector General and others concerning the person or persons who drafted the [request for proposals],” Desmond wrote in his decision.
He said the town “fabricated facts” in its award letter and lied about the qualifications of one of the golf management companies to justify an award to the company that was “without any assets or the required experience to be considered for an award.”
Another company was ultimately chosen to run the municipal nine-hole course, located on Merry Avenue.
Selectmen chairman David Madigan said the board decided to file the appeal in time to meet court deadlines, but it reserves the right not to proceed when the case comes up, probably in six months or longer.
“We were arguing legal issues in the case, not the facts of the case,” Madigan said.
A malpractice lawsuit the town filed in connection with the golf course case against its former town counsel, Robert Troy, remains ongoing.
Selectman Shawn Dahlen said he thought it made sense to appeal, since the legal costs would be covered by insurance.
“If we appeal it and we win, we owe nothing,” he said.