Earth Tone Technologies, LLC v. Town of Billerica et al

Filing 16

Magistrate Judge Leo T. Sorokin: ORDER entered. The Parties, through counsel, have proposed a settlement with an Agreement for Judgment submitted. Civil Action No. 11-10442, Docket # 15. The substance of the Boards objections fails to address the fed eral legal issues raised by the allegations of the Complaint. In addition, that the Town Manager consulted with Town Counsel regarding a lease arrangement with the Plaintiff does not establish a conflict of interest preventing Town Counsel from perfo rming his duties in these actions, which have been approved by the Board of Selectmen. Accordingly, the Court shall enter the proposed judgment. re (18 in 1:11-cv-10442-LTS) Letter/request (non-motion) Associated Cases: 1:11-cv-10441-LTS, 1:11-cv-10442-LTS(Simeone, Maria)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
INDEPENDENT TOWERS
HOLDINGS, LLC,
Plaintiff,
v.
TOWN OF BILLERICA, et al.,
Defendants.

EARTH TONE
TECHNOLOGIES, LLC,
Plaintiff,
v.
TOWN OF BILLERICA, et al.,
Defendants.

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Civil Action No. 11-10442-LTS

Civil Action No. 11-10441-LTS

ORDER ON OBJECTION TO SETTLEMENT
August 15, 2011
SOROKIN, M.J.

Before the Court are two separate actions claiming violation of the Federal
Telecommunications Act of 1996. The named defendants are the same in both actions: the Town
of Billerica, the Town of Billerica Planning Board, and the members of the Planning Board (each

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sued solely in his or her official capacity as a member of the Planning Board). Civil Action No.
11-10442, Docket # 1 at ¶¶ 2-4;Civil Action No. 11-10441, Docket # 1 at ¶¶ 2-4. The
Complaints in each case allege that the Board is a “a duly-authorized unit of the Town” of
Billerica. Civil Action No. 11-10442, Docket # 1, at ¶ 3; Civil Action No. 11-10441, Docket #
1, at ¶ 3.
On June 16, 2011, Attorney Patrick Costello and the law firm of Louison, Costello,
Condon & Pfaff filed an appearance on behalf of all of the defendants in both actions. Civil
Action No. 11-10442, Docket # 4; Civil Action No. 11-10441, Docket # 4. On July 20, 2011,
the Parties in each action filed an Agreement for Judgment which provides for the issuance of a
special permit to each Plaintiff by Order of the Court. Civil Action No. 11-10442, Docket # 15;
Civil Action No. 11-10441, Docket # 14. Counsel for the Plaintiff and the counsel for all of the
Defendants signed the filings. Id.
On August 2, 2011, the Planning Board wrote directly to the Court stating that it objects
to the proposed settlement in the Independent Towers case, Civil Action No. 11-10442, and that
the Town Manager had refused to provide counsel for the Planning Board and had usurped his
power and authority by directing the settlement over its objection. Civil Action No. 11-10442,
Docket # 18. This letter was sent as an ex parte communication to the Court, and it was not
apparent on its face that the Board had sent copies to the other Parties or to counsel of record in
these actions. Id. Because the letter was ex parte, the Court directed the Clerk to docket the
letter so that all parties and counsel could review it. See Civil Action No. 11-10442, Electronic
Order of August 10, 2011.
Although individuals may appear pro se, neither corporations, government agencies nor

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government officials in their official (as opposed to individual) capacities may do so. In light of
the assertions contained in the letter, however, the Court directed the Defendants’ counsel to
address the question of whether the substance of the letter implicated his authority to enter into
the settlement proposed to the Court. Id. The Defendants’ counsel has now done so. Civil
Action No. 11-10442, Docket # 19.
In combination, applicable statutes of the Commonwealth and the Town’s bylaws confer
upon the Board of Selectmen the authority to control litigation brought in the name of, or
against, the Town. M.G.L. ch. 40, § 2; Town of Billerica General Bylaws, Article II, § 31.3.
Moreover, the Board has cited in its objection letter no legal authority permitting it either to
control litigation resulting from its decisions or to appoint counsel to represent it in such matters.
Cf. M.G.L. c. 41, § 26A (authorizing Board of Assessors to hire legal counsel for Appellate Tax
Board cases only); M.G.L. c. 71, § 37F (authorizing school committees to employ counsel for
the general purposes of the committee). In the absence of express authority permitting the Board
to hire its own counsel, it is represented by the Town Counsel. O’Reilly v. Town of Scituate,
328 Mass. 154 (1951) (“In the absence of legislative authority, it is settled that a department of a
city or town has no authority to employ counsel.”) The Board’s recourse is through other
mechanisms. See e.g., Board of Public Works of Wellesley v. Board of Selectmen of Wellesley,
377 Mass. 621 (1979).
The Parties, through counsel, have proposed a settlement with an Agreement for
Judgment submitted. Civil Action No. 11-10442, Docket # 15. The substance of the Board’s
objections fails to address the federal legal issues raised by the allegations of the Complaint. In
addition, that the Town Manager consulted with Town Counsel regarding a lease arrangement

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with the Plaintiff does not establish a conflict of interest preventing Town Counsel from
performing his duties in these actions, which have been approved by the Board of Selectmen.
Accordingly, the Court shall enter the proposed judgment.

SO ORDERED.

/s / Leo T. Sorokin
UNITED STATES MAGISTRATE JUDGE

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