Troy Deposition II

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VOLUME: II PAGES: 1 - 252 EXHIBITS: 25 - 27 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DOCKET NO. 08-04641-B
------------------------------------x JOHNSON GOLF MANAGEMENT, INC., Plaintiff, vs TOWN OF DUXBURY, and NORTH HILL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN, CHAIRMAN, SCOTT WHITCOMB, ROBERT M. MUSTARD, JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO, MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD, and GORDON CUSHING (EX OFFICIO) and CALM GOLF, INC., and CHARLES LANZETTA, Defendants ------------------------------------x CONTINUED DEPOSITION OF ROBERT S. TROY, taken on behalf of the Plaintiff, pursuant to the applicable provisions of the Massachusetts Rules of Civil Procedure, before Jessica F. Story, Certified Shorthand Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the offices of Follansbee & McLeod, LLP, 536 Granite Street, Braintree, Massachusetts, on Wednesday, September 5, 2012, commencing at 10:18 a.m. --------------------------------------BRAMANTI & LYONS COURT REPORTING, INC. REGISTERED PROFESSIONAL REPORTERS 92 STATE STREET, BOSTON, MA 02109 TEL: 617.723.7321 / FAX: 617.723.7322 www.bramanti-lyons.com
CONTINUED DEPOSITION OF ROBERT S. TROY
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APPEARANCES: Stephen R. Follansbee, Esq. Follansbee & McLeod, LLP 536 Granite Street Braintree, Massachusetts 02184 Attorney for the Plaintiff, Johnson Golf Management Leonard H. Kesten, Esq. Brody, Hardoon, Perkins & Kesten, LLP One Exeter Plaza Boston, Massachusetts 02116 Attorney for the Defendants, Town of Duxbury and North Hill Advisory Committee, Consisting of Michael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard, Jr., Michael Marlborough, Anthony Floreano, Michael T. Rufo, Thomas K. Garrity, Richard Manning, W. James Ford, and Gordon Cushing (Ex officio) Arthur P. Kreiger, Esq. Anderson & Kreiger, LLP One Canal Park, Suite 200 Cambridge, Massachusetts 02141 Attorney for the Defendants, Town of Duxbury and North Hill Advisory Committee, Consisting of Michael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard, Jr., Michael Marlborough, Anthony Floreano, Michael T. Rufo, Thomas K. Garrity, Richard Manning, W. James Ford, and Gordon Cushing (Ex officio) E. David Edge, Esq. Geary & Associates 161 Summer Street Kingston, Massachusetts 02364 Attorney for the Defendant, CALM Golf
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APPEARANCES (cont.): Robert T. Gill, Esq. & William R. Covino, Esq. Peabody & Arnold, LLP Federal Reserve Plaza 600 Atlantic Avenue Boston, Massachusetts 02210-2261 Attorneys for the Deponent
ALSO PRESENT: Douglas Johnson Jason Laramee Gordon Cushing Gregory J. Aceto, Esq.
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I N D E X Deposition of: ROBERT S. TROY Examination by Mr. Follansbee Examination by Mr. Kesten Examination by Mr. Kreiger Examination by Mr. Edge Exhibits 25 26 27 Gordon Cushing Affidavit December 14, 2011 Memo Richard MacDonald Draft Affidavit 6, 249 35 216 223 Page 139 187 187 Page
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P R O C E E D I N G S
MR. FOLLANSBEE:
This is a continuation
of the deposition of Attorney Troy that was begun on Thursday, June 28, 2012. On the issue of privilege, are we beyond all the privilege issues at this juncture, the attorney-client privilege? MR. GILL: what you ask. MR. FOLLANSBEE: MR. GILL: Okay. That depends on, I guess on
I would suggest that you're
probably going to be all right if you ask the same questions that caused problems last time. MR. FOLLANSBEE: intent is to go back. MR. GILL: know. MR. FOLLANSBEE: Well, essentially I'm What else you ask, I don't Okay. That will be my
addressing the issues that we had the last time where you raised attorney-client privilege and there was some discussion about whether or not the waivers that were effectuated by the town was controlling, and I just wanted to make sure
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we're beyond all that. MR. GILL: Ask away. Thank you.
MR. FOLLANSBEE:
EXAMINATION BY MR. FOLLANSBEE: Counsel, I'm showing you what was marked Exhibit Number 11 at your earlier deposition, and it's the settlement proposal from my office directed to your attention on or about January 16, 2009. MR. GILL: Excuse me. Hang on a second. Go ahead.
I just have to find it.
Got it.
Upon receiving that did you attempt to verify any of the information that was in that letter? This document I received, I believe the day after the award was made by the town and I -the answer is yes, I did. And did you try to determine whether or not CALM Golf had any assets other than the $169 reflected in the total assets on this bid? MR. GILL: Just, before you answer that,
I want to confirm with counsel for the town that privilege is waived regarding these questions. MR. KREIGER: MR. GILL: Yes.
And he can answer?
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MR. KREIGER: I'm sorry.
Yes.
I didn't get the question.
The question was, did you attempt to confirm the fact that CALM Golf didn't have any assets other than the $169 shown on their balance sheet? When I received this document I sent it to Mr. Cushing and Mr. MacDonald. My best memory,
I spoke to Mr. Cushing and Mr. Edge and I received a written response to the allegations from Mr. Edge shortly thereafter which I then forwarded to the town manager and Mr. Cushing for their review and determination. Did you endeavor to find out whether or not the other company that was running the Rockland Golf Course, CP&L, Incorporated, was in bankruptcy? MR. GILL: So again, counsel for the
town, I assume that the privilege is waived on this. And I think the practical way to speed it
up is what we'll do is I'll assume that the privilege is waived unless you guys speak up. MR. KREIGER: That's fine.
The question was, did you attempt to verify whether or not CP&L, the company that was running the Rockland Golf Course, was in
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bankruptcy? I asked Mr. Cushing and Mr. Edge to respond to the matters that are contained in the letter. What was the response from Mr. Cushing? Mr. Cushing had looked into it. information. I don't recall. He had some
I don't remember.
And do you recall what Mr. Edge responded? His was in writing. hall. What did it say? It was a point by point rebuttal. Rebuttal? Yes. And did he rebut the fact that CP&L was in bankruptcy? I don't recall specifics on it. Did he indicate that CALM Golf had assets other than assets shown on their financial statement? My memory was it was a two or three-page detailed response which was received shortly there after this document here, I believe. Also, that I forwarded this document to Mr. Edge, too. MR. GILL: You're talking about Exhibit It was forwarded to town
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11. THE WITNESS: Exhibit 11. I'm sorry.
Did you discuss Exhibit 11 with Mr. MacDonald? I did. And what did you say to Mr. MacDonald and what did he say to you? I don't remember. Did you indicate to Mr. MacDonald that it would be problematic for the Town of Duxbury if the information that CALM had given was shown to be untrue? As I said, I don't remember the conversation. You don't remember it? No. I have no memory.
Did you discuss the settlement proposal with any of the selectmen in Duxbury? I don't know whether I did or not. Is it your custom and practice as an attorney to forward settlement proposals to your clients? My instructions were to forward everything. And
I did, in fact, forward everything to the town manager. The town manager then, you know, made
the determination as to what conversations he would have with the selectmen. It's entirely
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possible he could have discussed it. Did you review any documents to prepare for today's testimony? Not any specific documents, no. What did you do to prepare for today's testimony, if anything? Well, I -- for today or the deposition in general? The deposition. Why don't we start with today
and then I'll ask what you did to prepare the last time. So specifically for today, what did
you do to prepare? For today I spoke with my counsel, I reviewed my deposition transcript from the previous session, and I just looked at the file. specific. When you say you looked at the file, what constitutes the file? The file is very -- I didn't look at the whole file. I just looked at some documents that I I don't recall specifically what Nothing
had assembled. they were.
Well, with regard to Exhibit Number 11, did you give any thought to the concept of rescinding
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the award to CALM Golf based on this information? That was not my position to make any decisions with respect to that. I forwarded the
information to town hall, specifically to Mr. Cushing and to Mr. MacDonald, and there was discussions. And beyond that it was not a matter of my, you know, giving any thought. My thoughts
were, you know, more in the nature of providing the information to the town manager and answering any questions that he would have about it. Now, did either Mr. Cushing or Mr. -- you said you had some discussions. What do you remember
about the discussions with Cushing and MacDonald concerning Exhibit Number 11? MR. COVINO: Objection.
I don't remember anything about them. On the top of the second page of Exhibit Number 11 it indicates that Mr. Lanzetta knowingly and willfully lied to the Town of Duxbury about the experience of CALM Golf. Did you explore whether or not CALM Golf
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had any experience operating a golf course? I believe Mr. Edge responded to that. What was his response? I don't remember. remember. Had Mr. Cushing ever told you that the company that had run Rockland, owned by Mr. Charles Lanzetta, was in bankruptcy? I think Mr. Johnson had told us that. he had e-mailed it during the process. And you had become aware of that? I became aware of the allegation, yes. And did you do anything yourself to determine whether that allegation was true or false? I did as directed by the town manager. What was your ultimate determination regarding CP&L, Incorporated? I didn't make any determination. What did you find out when you looked into it concerning whether or not they were in bankruptcy? MR. COVINO: Objection. I think -I think It was in writing. I don't
I don't think I found out anything.
I believe -- my best memory is that I accepted

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Mr. Johnson's representation as being accurate. I think Mr. Cushing might have given me some information on that. Did you have any discussions concerning this bid process in late 2008 and early 2009 with Mrs. Sullivan on the board of selectmen? I don't think any discussions. I could have.
Did you have any correspondence from Mrs. Sullivan regarding the North Hill Golf Course? I'm sure I did. What do you remember about any correspondence that she may have sent? I don't remember anything specific about it. In reviewing the file, did you review any correspondence from Mrs. Sullivan? No. I think I looked at the e-mails that you
had asked me about at the last deposition from Mrs. Sullivan and Mr. Martecchini. And what was the substance of those e-mails? That they didn't pertain to the North Hill -they didn't pertain to the bids. What did they pertain to? I don't remember but I remember I looked at
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those. You reviewed them since your last session but you don't remember what they pertained to? I know they did not pertain to North Hill, no. I reviewed them actually after the last session. I don't remember that. Do you know why they would show up on your billing records for the North Hill Golf Course matter? I don't. They did not pertain to the bid
process, let's put it that way, and I don't remember what they pertained to. I don't know
why they have been billed that way. That, you know, the billing, you know, what category they were put in, sometimes there were imprecisions about that. In other words,
an administrative thing could have been put in. I don't remember what. see. Did you have any conversations with the board of selectmen regarding the possibility of rescinding the award to CALM Golf and awarding a contract to Johnson Golf in the winter of 2009 and early spring of 2009?
I would have to look and
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MR. COVINO: MR. GILL:
Objection.
I assume the privilege is
waived with regard to this? MR. KREIGER: Yes. I thought we had a
standing agreement on this. MR. GILL: Yes, but he is -- he's now
asking questions about conversations with the board of selectmen that occurred after the lawsuit was filed which might well pertain to the exception that was contained in the vote of the board of selectmen. MR. KREIGER: That exception was
superseded by the subsequent vote of the board of selectmen in litigation between the town and Mr. Troy. All privilege is waived. I wasn't aware that there had
MR. GILL:
been a vote since. MR. KESTEN: Bob. All privilege is waived, I guess you can't, but.
You can trust us. MR. GILL:
So are you telling me then the
board has voted to waive all privilege with regard to between Mr. Troy and the town? MR. KREIGER: waived.
All privilege has been
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MR. GILL:
When was the vote, please. Sometime this summer.
MR. KREIGER: MR. GILL:
So it was -- the last vote you You're saying
sent me, Art, was on June 7th.
the privilege has been further waived since you sent me that? MR. KREIGER: Privilege is waived by
operation of the law with the filing of the suit against Mr. Troy by the town. And yes, the
selectmen decided to waive all privilege after that. MR. GILL: And are you telling me they
took a vote and did that in some formal way? MR. KREIGER: MR. GILL: Yes.
When did they do that? I don't know the date.
Was it in July? June or July. Probably
MR. KREIGER: July. MR. GILL: of that with you? MR. KREIGER: MR. GILL: of that vote?
All right.
Do you have a copy
No.
Mr. Kesten, do you have a copy
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MR. KESTEN: MR. GILL:
I'm not being deposed.
Well, if you have it I'd ask
you to show it to us. MR. KESTEN: MR. GILL: Right.
You're refusing? I'm not telling you I have The
MR. KESTEN: it.
I'm not telling you I don't have it.
privilege has been waived by the Duxbury selectmen. MR. GILL: Do you have a copy, Art? No.
MR. KREIGER: MR. GILL: I'm sorry.
Go ahead.
The question again?
I have no idea what the question is. MR. KREIGER: You were talking about the
selectmen, about rescission of the award to Johnson. That -- my best memory is that in the executive session contemporaneous with this time period that was discussed in executive session. And did you have any input in that discussion? Other than discussing the offer of, if you want to call it offer of settlement. I'd call it a settlement proposal.
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A. Q.
All right. That's what it's captioned if you look at the front page of Exhibit Number 11. Did the selectmen ask you what your recommendation was on this matter?
A. Q.
No. Did they ever ask you your recommendation as to whether or not to settle the lawsuit or to continue it?
A.
At this particular time period the selectmen were very resolute in defending the lawsuit. They were not interested in exploring offers of settlement.
Q.
And who was on the board of selectmen at that time? And now I'm referring to January 2009.
A.
I believe it was Mrs. Sullivan, Mr. Martecchini and Mr. Witten.
Q.
Is it your memory that all three of those individuals were resolute in defending the lawsuit and not settling?
A.
My memory is that Mr. Martecchini and Mrs. Sullivan were more, I'd say vociferous. Mr. Witten as a general rule was more laid back. But no, there was -- my memory was it was pretty
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much unanimity that the town should defend the action he had taken. And actually, the focus at that time was really not on this matter. injunction. The focus was on the
The board was very committed to
having the town freed from the injunction. Why was that? Because they felt that the injunction should be vacated and that -Did you give them any advice on whether or not the injunction should be vacated? I provided them with a copy of the judge's order. I also in this period of time or in the
early months of 2009, I provided them with the judge's findings, specifically the finding that has been referred to that Johnson had a strong likelihood of success, and I did that in writing. And did you go over that with the board of selectmen in executive session after the judge issued it? I can't remember. In executive session I would
answer any questions that they asked. But yes, I -- they understood that the
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judge's findings, you know, had included language that supported some of the claims in terms of likelihood of success on the merits. That had to be explained what the criteria was for the issuance of injunctive relief. And is it your memory that the decision of Judge Smith which was issued on or about February 2nd of 2009 had the same information concerning the fact that CALM Golf did not have the requisite experience or assets to be qualified? Do I recall? I remember that, yes.
Did you communicate that to the selectmen? As I say, I sent them the -- I sent definitely to the town manager and I believe all three of the selectmen got a copy of that order. And in a subsequent memorandum I explained different -- maybe not a memorandum, a letter -- different portions of Judge Smith's order, including those findings that you have talked about, that detail that on some issues that Johnson Golf had a likelihood of success on the merits. That was done in writing.
In the course of preparing for your own testimony, had you reviewed Mr. MacDonald's
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testimony at all in his depositions? Mr. MacDonald's testimony? Yes. I have seen Mr. MacDonald -- well, I was at his first deposition and I have seen his second deposition, yes. have. Are you aware that in his second deposition he claims that he never received Exhibit Number 11 from you? MR. COVINO: No. Objection. But it's in the Now I've seen it. Yes, I
I'm not aware of that.
billing records that he received it. Are you aware that Mr. MacDonald has testified that he was not made aware of any settlement proposals from Johnson Golf Management? MR. COVINO: Objection.
I'm not aware of that, but Mr. MacDonald was made aware of all settlement proposals and they were all discussed at length and the records confirm that. Which records are those? Your billing records?
My billing records, yeah, confirm when things were sent. And when a document came into my
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office it automatically was sent to town hall and routed. Every document. There weren't any
documents that I received that I did not forward to town hall. everything. As a matter of fact, the selectmen received the settlement proposal in hand that Mr. MacDonald gave Mr. Johnson, delivered to them at the meeting. Johnson. I'm sorry. Not Mr. Mr. MacDonald received
My apologies.
Mr. Johnson --
You're referring to several instances, well, at least one instance where Mr. Johnson went on his own and -Gave them the package. There's no question. My
records will reflect that it was not a discretionary decision when to send documents to town hall. It was done across the board? It was done across the board every -- during the time when I was town counsel. I did that from
the very beginning, made sure that every document that I received or sent was sent to town hall. They were all sent to town hall.
Now, after -- I know you didn't attend

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Mr. Lanzetta's deposition.
Did you have
occasion to read Mr. Lanzetta's testimony in his depositions? At some point I did. Yes, I did.
And do you recall that Mr. Lanzetta had testified that CALM Golf had never run the Rockland Golf Course? MR. COVINO: Objection. I'm not saying he didn't,
I don't recall that.
but I don't recall it. Would that have become a concern of yours if you were made aware of the fact that Mr. Lanzetta had testified under oath that his company had only run the Abington Golf Course and had never run the Rockland Golf Course? MR. GILL: Objection.
I think the problem I have is these were not -it was not my job to make decisions and to have concerns about making decisions. My job was to provide the information to the town manager, and the town manager, with respect pursuant to his authority, could then give me instructions. So I provided the
information, all the information that I was able

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to provide to town hall. And beyond that I did not receive any instructions because, quite candidly, the direction that town hall was taking, the town manager in particular, was defending the lawsuit and see if you can get the injunction dissolved and see if you can, you know, win the case on legal issues, is what I persistently attempted to do through summary judgment. Now, in October and November of 2010 you had meetings with the representatives of CALM Golf and the principals of CALM Golf; is that correct? I don't remember the date. At one point we had
a meeting at Mr. Edge's office. And that was with Mr. Lanzetta and Mr. Morosco and yourself and the town manager, Mr. Edge and Mr. Geary? No. The town manager did not attend the I'm sorry. I may have the wrong --
meeting.
I'm sorry.
I thought you were talking about the
date of the -- I don't remember the dates so I have to tell you that. focus. So if you can help me
I think you're talking about --
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MR. GILL: I'll clarify it. I'm sorry.
Let him clarify the question.
In the fall of 2010 the decision was made by the town to rescind the award to CALM Golf. remember that? Yes. And before that decision was made you had a meeting with the principals of CALM Golf and some representatives of Duxbury; is that right? Right. Judge Smith -MR. GILL: Yes. Who was at that meeting? The meeting at town hall was, I believe that Mr. MacDonald was there. was there. It was his meeting. I Just a yes or no. Do you
I believe Mr. Cushing was there,
although I'm not certain that Mr. Cushing was but I believe he was. I believe Mr. Lanzetta
was there, and I think there was another person there. I believe that was mister --
Mr. Morosco? Mr. Morosco. And mister -- I think Mr. Geary
was there and I believe Mr. Edge was there.

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Q.
Now, at that meeting did anyone from the town advise the folks from CALM Golf and their counsel that the award of the contract was going to be rescinded?
A.
No.
Because it wasn't -- it was not -- that
meeting was predicated on the possibility or what then appeared to be the belief that the injunction was going to be dissolved. And
Mr. MacDonald had asked for that meeting to interview Morosco and Lanzetta, and I believe to meet them, I had never met them, and to see whether they were prepared to run the course if the award were validated.
Q.
Did the principals of CALM Golf and their counsel indicate to the town they were ready to run the course?
A. Q.
Not to Mr. MacDonald's satisfaction. What was the stumbling block as far as Mr. MacDonald was concerned? MR. GILL: Objection. You can answer.
A.
Well, my memory is -- you're asking me what was the stumbling block for Mr. MacDonald. I don't
know what his thoughts were, except to the extent that I remember in observing the meeting
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that there were three points that I thought I talked about at the last deposition. One was
that they were -- had made commitments to be in Florida. This is Mr. Morosco and Mr. Lanzetta? I believe at least one of the two. I don't
remember, but I think both of them were in Florida, or at least one of them was in Florida. One of them did more of the talking than the other. I don't know which one was. And it was
a PGA, some kind of a camp or something, something down in Florida. what it was. Obviously if the injunction was going to be dissolved, Mr. Johnson was going to be taking his equipment out of the course and the transition had to be made, and this had to be done before December when they usually collect the dues. And so I know Mr. MacDonald was troubled by the fact that they were -- at least one of them or both were not going to be available to make the transition to get the course started. The second was they had said that they
I don't remember
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weren't sure they could comply with the terms of the bid, and some suggestions that the bid had to be -- not the bid but, I guess the bid modified and they would pay less money. And I
think Mr. MacDonald rejected that possibility at that -- during that meeting. And the third was that since the time they had put the bid in, my memory is they said they had received another award from some golf course in the area. I think, I think it was
actually one that Mr. Johnson -Are you talking about Strawberry Valley in Abington? I'm not sure, but it could have been there. was local. It was around the Duxbury area. It
They were hesitant or they weren't reassuring that they were going to be able to do it. That's what I observed of Mr. MacDonald and that's what he talked about after they left. At that point when you had the conversation with Mr. MacDonald and he indicated that those were his concerns, did you and Mr. MacDonald discuss the option of giving the contract to Johnson Golf?
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A.
Well, Johnson Golf -MR. GILL: That would be a yes or no.
A. Q. A. Q. A.
No. That was never discussed? No. Why wasn't that discussed? Because the award had already been -Mr. Johnson's bid had already been rejected.
Q. A. Q.
When was Mr. Johnson's bid rejected? When the award was made to CALM Golf. There was nothing in Mr. Johnson's bid that caused the town to reject it other than the fact that CALM Golf was rated in an identical fashion and offered more money, correct? MR. GILL: Objection.
A. Q.
Correct. So the merits of Johnson Golf's bid had not been addressed; it was simply you had already made an award to CALM Golf, correct? MR. GILL: Objection. Objection.
MR. KREIGER:
A.
Correct. MR. GILL: I just, I don't think this I think you
witness made an award to anybody.
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mean the town. MR. FOLLANSBEE: The town. If I
indicated he made the award, I'll correct that. It's the town that made the award. I mean the
Town of Duxbury, not Robert Troy individually. MR. GILL: There you go. If I can take a
MR. FOLLANSBEE:
five-minute break, I might be pretty close to being finished. MR. GILL: Sure.
(Recess taken.)
When the decision was made to reject the bid of CALM Golf in 2010, was it the position of the Town of Duxbury not to give an award to Johnson because he had sued them? MR. GILL: Objection. Objection.
MR. COVINO:
My memory of what the town manager's instructions were were to talk to the Inspector General, find out how we can go out to bid again. I don't think there was even -- I don't
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think -- I don't remember Mr. MacDonald even conjuring up the possibility that at that point he could go back and pick one of the other people that had -- whose bid had been rejected. Correct me if I'm wrong, in his award letter didn't Mr. MacDonald say that the non-price proposals of Johnson Golf and CALM Golf were absolutely equal, and the only reason he was giving it to CALM Golf was because they had more money? MR. COVINO: Objection. My memory
I don't remember without seeing it.
is that the evaluations were -- the evaluators had found that in terms of the non-price criteria, that they were almost equal, if not equal, and that because CALM Golf was giving out more money, that he was awarding it to CALM Golf. I remember that.
They were both rated highly advantageous, correct? They were both rated highly advantageous. Now, did any of the selectmen ever say in your presence or to you that they were going to fight this injunction and get the injunction over with
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because they were never going to give a contract to Johnson because he had sued them? I don't remember that. Did Mrs. Sullivan ever indicate to you that she was very upset over the fact that a company that had sued them was running the golf course? Mrs. Sullivan was not -- Mrs. Sullivan was quite specific in maintaining the position that, you know, the town should defend the action, and to some extent I think that the original board in a more measured sense shared that sentiment. Mr. Donato came on board he had a different perspective. And how would you characterize Mr. Donato's perspective? MR. GILL: Objection. You can answer. When
I think that Mr. Donato was concerned about the process and that I think he felt that the town had made a mistake. And would you characterize Mr. Donato's position as reasonable and logical? MR. GILL: Objection. Objection.
MR. COVINO:
I, you know, have worked for, I can't tell you

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how many, between 50 and 100 selectmen.
I never
try to characterize any of their positions. It's not my place to do that. I mean, he
obviously had his point of view and he maintained it. The memo that you spoke about earlier this morning from Attorney Edge, did Attorney Edge indicate that CALM Golf had ever run the Rockland Golf Course? MR. COVINO: It wasn't a memo. Okay. Objection. It was a letter. Did the letter
I stand corrected.
indicate that CALM Golf had ever run the Rockland Golf Course? MR. KREIGER: Objection.
I don't remember it, but I don't think anyone ever represented that CALM Golf had run the Rockland Golf Course. It was -- I think the
position was that Lanzetta and Morosco, or maybe just Lanzetta, I don't know, had run the Rockland Golf Course and that the corporate entity was not important. their position. And having reviewed the RFP, you were aware that
I think that was
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the RFP specifically said that in evaluating the non-price proposals you had to consider the company and not the individuals, correct? MR. COVINO: Objection.
That's been a, you know, that's been a point of contention from -Whether it's a point of contention, isn't that what the RFP said? It speaks for itself and how it's interpreted by the parties. MR. FOLLANSBEE: MR. GILL: I have nothing further.
It appears to me Mr. Kesten is
preparing to ask questions, and I want to say for the record, I had brought to Mr. Kesten's attention that we would object to any questions by him for ethical reasons and that we feel that any questions by Mr. Kesten or Mr. Kreiger are inappropriate. MR. FOLLANSBEE: I'll put on the record
that Mr. Gill, by having his associate send me an e-mail, has accused me and Mr. Kreiger, but I'll just focus on me, of unethical behavior. It is completely inaccurate. Mr. Troy has Mr. Troy
committed perjury in his affidavit.
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knows it.
Mr. Gill probably knows it.
EXAMINATION BY MR. KESTEN: Mr. Troy, what did you do to prepare for your deposition? MR. GILL: Those are totally
inappropriate comments and I'm going to object to them, but you go ahead and we will treat it, as we said in our memo, as a question of ethical violation. The question? I'm sorry.
What did you do to prepare for your deposition on day one? I was prepared by you. When? During a number of sessions. When? I don't have the dates. Can you give a hint? When was it?
I was prepared by you at various meetings at your office. Where was it? At your office. Who attended?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
A.
I'm sorry.
Don't interrupt me.
I was prepared at various meetings at your office, at Duxbury Town Hall, at the Duxbury Senior Center, during phone conversations, during any number of interactions with you. I was prepared by Mr. Kreiger at his office, and I was prepared by Mr. Gill and Mr. Covino at their office.
Q.
Now, as to your preparation with me, when did it begin?
A.
It began sometime at the point when you determined that I was going to be the witness for the town.
Q.
You and I had a discussion about you having to testify very early in the case, didn't we?
A. Q.
I'm sorry.
Are you testifying?
We had a conversation about your -- the need for you to testify very early in this case, didn't we?
A. Q. A.
Are you testifying? It's a question. I can tell you about what I said. to tell you what you said. I'm not going
You can talk about
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. A. Q. A. Q. A. Q. Q. A. Q.
what you said. Here's the question. You and I had a
conversation early in this case about the need for you to testify, didn't we? I don't know what you're talking about. in the case? conversation? When is the first time you and I discussed you being a witness in this case? I don't remember. Do you have any idea? It was at some point subsequent to the pretrial. The pretrial in November of 2011? Yes. And at what point did you inform me that the town manager was not going to waive the privilege and you would not be testifying? MR. GILL: I'm going to object to that. What is the date of the Early
I don't remember that. MR. GILL: for two grounds. I'm going to object to that One is I don't think it's
likely to lead to relevant evidence in this case. And second of all, you're now getting
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into conversations between Mr. Troy and his then attorney which are privileged, and that privilege belongs to Mr. Troy. Tell me when I became your attorney. MR. COVINO: Objection.
You became my attorney when you suggested to me that I was not going to function as the trial counsel but as the witness for the case which was going to give a chronology. So -The narrative, as you said. So at that point I agreed to be your lawyer and that I would keep your confidence from the Town of Duxbury. Is that what you're saying? Wait a second. Objection.
MR. GILL:
MR. COVINO: MR. GILL:
Is this -- I'm going to cut
this off because you're not getting conversations between lawyer and client, and those are privileged. this case. They are not relevant to
We're not going to answer questions
of that nature. When did you have private conversations with me, Mr. Troy, without anybody else being there?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
A.
I had a number of private conversations with you.
Q. A.
When and where? I don't have the detail of all the conversations. We had many conversations. We had phone We
had e-mail transmissions.
conversations, a number of phone conversations.

Q. A.
Okay. And we had a number of conversations at various times with and without other people.
Q.
When did we have private attorney-client conversations? When?
A. Q. A.
I just answered that. No, you haven't. We had numerous private attorney-client. I was
speaking with you because I believed that you were representing me in my capacity.
Q. A. Q. A.
Not the town? No. Just you? In my capacity as a witness for the town. not functioning as counsel. I was
Q.
So were all our conversations that we had since that pretrial privileged conversations?
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MR. COVINO:
Objection.
I leave that for the Court to decide. You were operating under the belief, right, that I was your lawyer and these were private conversations, right? MR. GILL: I'm going -- no. No. I'm
going to object because we're going too far now into the privileged area. It is not relevant in
any way to this case so I'm going to instruct him not to answer that. Mr. Troy, the meeting we had in my office on April 13th, do you remember that meeting where you brought the files up? I do. Was that a privileged conversation? MR. COVINO: Those -MR. GILL: I'm going to cut this off This is Objection.
again and instruct you not to answer. not relevant in this case.
You're only entitled in this case, in my judgment, to ask him what he did to prepare for this deposition. He said that he met with you,
he met with Mr. Kreiger, he met with me and

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. Q. Q.
Mr. Covino.
Now let's move on from that. I just want to know the I'm trying to
MR. KESTEN:
dates of the meeting, Bob. explore. MR. GILL:
Ask him the dates.
If he
remembers, he'll tell you. Do you have any records of any of these dates? MR. GILL: That's a different question. You
You said you wanted to know when they were. want to know that, ask him. MR. KESTEN: with my deposition. you can.
Mr. Gill, do not interfere If you're going to object,
You can advise him not to answer.
Other than that, knock it off. MR. GILL: That's what I'm doing.
Mr. Troy, do you have any records of any of the dates of these so-called privileged meetings? No records. Do you have any memoranda whatsoever of any of these privileged meetings? MR. COVINO: MR. GILL: Objection. I will instruct
Objection.
him not to answer. MR. KESTEN: You're instructing him not
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to answer? MR. GILL: Yes.
Mr. Troy, when were you first hired by the Town of Duxbury? I believe in 1986. And you've been town counsel ever since until May 4th? I believe so. When is the first time you assisted the town in any RFP process or procurement process whatsoever? I don't remember. How many had you done? How many had you
assisted the town in before this one? I don't remember. Any clue? MR. GILL: You're asking him to guess?
Are you asking him to guess? MR. KESTEN: questions. Any clue as to how many? MR. GILL: I'm going to instruct you not I'm not answering your
to guess or speculate. No. I don't know the number but there were not
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a lot of them, no. Under ten? I can't give a number. years. I have no idea. That spans almost 30
Were you familiar with the requirements of 30B before the summer of 2008? Somewhat. Who first instructed you to become involved in the -- strike that. Were you involved at all in the RFP process, the one before being involved in North Hill? The one before the 2009 one? Do you
understand the question? know.
It's poorly phrased, I
Do you understand it?
I was involved in several before. Involving North Hill? Yes. What was your involvement in the previous ones? Whatever I was requested to do, I did. remember them. You have no idea? you did at all? No. Did you ever help draft an RFP before the one in
I don't
You have no memory of what
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. Q. A. Q. A. Q. A. A. Q. A. Q. Q. A.
2008? I could have reviewed them probably. remember drafting them, no. So did you -- when you reviewed them, did you make any changes before the one in 2008? MR. COVINO: I don't remember. Objection. I believe so. I don't
Now, when did you first become aware that there was going to be a new RFP drafted for North Hill in 2008? I don't remember. When were you first told that you would be involved in that? I wasn't told that I was going to be involved in it. I was just -- there was some discussion
intermittently about the term ending and there was going to be a new RFP issued. So how did you become involved? I became involved as directed. How? Directed by who?
The town manager would give me instructions. So what's the first thing he told you to do? I don't remember that. What did he tell you to do?
45
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
A. Q.
I don't remember. You have no memory of anything he told you to do? MR. COVINO: Objection. Whatever I In
A.
I don't remember anything specific.
was instructed to do would be incrementally. other words, if I was told to do one task, I would do it, then I was instructed to do another. Many times I received instructions
through other people.

Q. A.
Like who? In other words, Mr. Cushing would call me and say that the town manager had said for me to talk to him.
Q. A. Q.
To talk to Mr. Cushing? Right. Or to look at something.
What did you do in the fall of 2008 with regard to the RFP, Mr. Troy?
A.
I met with the town manager and Mr. Cushing. made some suggestions to draft the RFP that Mr. Cushing had prepared. I answered some --
drafted some answers to some questions that the bidders had asked. I consulted with the town
manager and Mr. Cushing as directed.

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Q.
Now, at some point you received a draft RFP to look at, right?
A. Q. A. Q. A. Q.
Correct. How did you get it? I don't remember. And who did you get it from? I assume Mr. Cushing, but I don't know. You don't know. When's the last time you looked
at any of these materials? MR. GILL:

A. Q.
Objection.
What materials? The e-mail, the drafts. you looked at them? When's the last time
A. Q.
I haven't look at them for awhile. When did you first remember -- since 2008, when's the first time you remember that you had written in the phrase comparable business enterprise? MR. GILL: Objection.
A. Q.
I don't remember. You recall that you were not remembering this in 2010, right? MR. COVINO: Objection.
A.
I'm sorry?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q.
Do you recall that in 2010 you didn't remember that you had put that phrase in?
A. Q. A. Q.
Is this a communication that I had with you? No. No. I don't know what you're talking about.
Do you remember me asking you whether or not, whether you had put that in after Gordon Cushing's deposition? MR. GILL: Objection.
A. Q. A. Q. A. Q.
I'm not waiving a privilege. You think that's a privileged communication? I do. At that point I had agreed to represent you? Yes. When did I first agree to represent you? MR. GILL: to object. answer. Now wait a minute. I am going
I'm going to instruct you not to
We're not going down this road.
Q.
Mr. Troy, you and I were co-counsel in this case, correct?
A. Q. A. Q.
At some point. When? I don't remember. How did I become involved?

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A.
You became involved at some point after Ms. Ecker was -- entered an appearance, left your firm, I guess. involved. I don't know how you became
Q. A. Q. A. Q.
No.
I said when.
I don't know that. You don't know that? I don't remember the dates, no. Okay. Do you remember my appearance in the
pretrial?
A. Q.
I do. Was I your lawyer then? MR. COVINO: MR. GILL: down this road. Objection. We're not going
Objection.
This is appropriate in the It's
other case if you want to pursue it there. not in this case. MR. KESTEN:
Well, are you going to go
ahead and advise him not to answer? MR. GILL: I will. I just want to make sure the
MR. KESTEN:
judge sees it, so let's put it on the record. MR. GILL:

Q.
That's fine.
(By Mr. Kesten) Mr. Troy, do you recall after

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. A. A. Q. A. Q. A. Q. A. Q.
Gordon Cushing's deposition you and I discussed Mr. Cushing's testimony that you had inserted the language comparable business enterprise? No. I don't remember that.
Do you recall you telling me that you had not? MR. COVINO: MR. GILL: No. Objection.
Objection.
I don't recall that.
At the time of Gordon Cushing's deposition which was the summer of 2011, did you remember that you had put that language in? MR. GILL: Objection.
I don't remember when I -Remembered? -- remembered it. Do you remember when you forgot it? MR. GILL: Objection. Objection.
MR. COVINO:
I don't remember any -- with any specificity any of the -- what I did until I -- at a point whenever I reviewed the documents. When was that? I don't remember that either, but it was some point after -CONTINUED DEPOSITION OF ROBERT S. TROY
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Q. A. Q. A. Q.
Was it February of 2012? I don't remember. Was it April of 2012? I don't remember. So, Mr. Troy, do you now remember doing that or are you just relying on documents?
A.
I remember finding the document and seeing the language that I had inserted into the document and I remember seeing it there, yes.
Q.
No.
I understand.
So are you only relying on
that document for your memory that you inserted the language or do you now -- have you now -- do you now have a memory?
A.
No.
I remembered when I saw the, all of the
notations on the documents that I had put those notations as suggestions to Mr. Cushing in the document that was transmitted back to him.
Q.
Do you now have a memory, an actual memory of how those notations came to be or are you simply relying on the fact that you found this document?
A.
No.
When I saw the document and saw my
notations I remembered that I had written them in.

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Q. A.
So you now have an independent memory of that? My memory was refreshed by looking at the document, yes.
Q.
My question is, so you were refreshed and now you remember?
A. Q. A.
I remember that I wrote those notations in, yes. When? When did you write those notations?
At some point during the -- between the time when I met with the town manager and Mr. Cushing and between then and when the RFP was issued.
Q. A. Q. A.
Why did you write that notation in? Because I was asked to. By? By -- I was asked to make my suggestions by the town manager and put them in a document and send them to Mr. Cushing which in turn were vetted by the other people who were in the e-mail chain.
Q.
The question I have is, these specific notations, I have the notations that you have so far produced unless you find something more, but my question is, that particular notation, why did you have that?
A. Q.
What is the question? Why did you add -- let me -- let's back up.
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withdraw the question. In the previous RFPs for North Hill, you reviewed those? I did. And all of them, all the previous ones contained the requirement that any bidder for North Hill had to have experience in running a municipal golf course, correct? MR. COVINO: No. No? No. Which ones don't? The first RFP that I worked on was open to people other than those who ran golf courses. Which one was that? I'm thinking it was one that I did in conjunction with Mr. Grex. With who? Grex. Spell that, please. G-r-e-x. Who's he? He was the town manager of Duxbury.
Objection.
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Q. A. Q. A. Q. A. Q. A. Q. A. Q.
When was that? During his tenure. When was that? I don't know. When was his tenure? I have no idea. I don't remember his tenure.
You have no idea? He was the first town manager of Duxbury. So you're talking in the '80s? '80s. How about the '90s and 2000's; did any of those RFPs contain language allowing people -- strike that. How was it phrased in that one?
A. Q. A. Q. A. Q. A. Q. A. Q.
I don't remember that. Do you have it? Somewhere I have it, sure. You have it? Sure. In your files? I believe so, yes. And how would I -I'm sure the town has it, too. Where?
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A.
I have no idea.
That's -- I don't know where
the town stores things.

Q.
You said you're sure they have it. asking --
I'm
A.
I'm sure RFPs which are issued by the town, that the town would have a copy of what it issued.
Q. A. Q. A. Q. A.
And you have it in your files? I believe I do. And when was the last time you looked at it? Oh. I don't remember.
Within the last year? At some point during the litigation I think I looked at all the files, but I don't remember.
Q.
At some point. was filed?
You've done it since this case
A. Q. A. Q.
I would say so. And you saw that one? I saw what? So sometime in the last three years you saw this RFP that you reviewed for Mr. Grex? it up? You looked
A. Q. A.
I saw the file, yes. No. That's not --
I saw the documents.

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Q.
My question is, did you see that RFP? the question. in your file.
That's
Not -- I don't care that it was
A.
I don't remember. specificity.
I can't recall with
There's thousands of pages.
Whether I saw it or whether I saw that it was included, I know there was a document that was issued that -- for the North Hill Golf Course that did not require the prerequisites that you have just identified.
Q. A.
What did it require? I don't remember but it didn't require what you asked, that you manage golf courses.
Q. A. Q.
Did it require comparable business enterprises? I don't know that. I don't remember.
Did you use that RFP in formulating your suggestions for this one?
A. Q. A. Q.
I don't know. You don't? No. Now, the previous three RFPs before 2008 all required management by a -- management experience by the bidder, didn't they?
A.
I don't remember that.

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Q. A. Q. A.
The draft you got required it? The original draft, yes. And whose idea was it to change it? I was told -- well, there would have been discussions, it was going to open up the process, should it be opened up to encourage more bidders, prior to the meeting that I had with Mr. Cushing and Mr. MacDonald. At that meeting Mr. MacDonald, I'm not sure if Mr. Cushing discussed the issue, and I was told to open up the process about some more language.
Q. A.
What discussions were there before the meeting? There were some discussions of administrative type things, intermittent discussions that the process was going to be opened up. remember specifically. I don't
Q. A.
What is an administrative type thing? Well, a lot of the business that I did was when I went to town hall I would meet with the town manager, and a number of discussions were held about a number of different issues. we communicated. That's how
Q.
So, that wasn't the question.
The question I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. A. Q. Q. A. A.
asked for you -- I forget what the question is. The question I have for you, are you telling me that you had previous meetings with the town manager at which you and he discussed opening up the process? There was previous conversations at meetings with the town manager in which it was discussed that the bid process should be opened up, but I believe that there might have been discussion, and I didn't attend the meetings. I might have
learned there was some discussion about that at meetings in the North Hill Committee. Who told you that? I don't remember anyone telling me. My memory
-- this is just my memory of how I remember the issue of opening up the bid to other bidders other than people who are running golf courses. The issue of opening up the bid to other bidders you learned was discussed by the North Hill Advisory Committee? I believe that I received some information that that issue had been discussed. From who? At one of the meetings. I have no memory as to
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. A. Q. A. Q. Q. A. Q. A.
who I learned that or any of the other information that I learned. I was at meetings
all the time at Duxbury Town Hall. With Mr. MacDonald? And others. Like? When Mr. MacDonald would have meetings, various people would join the meetings, people from town hall. Like? Selectmen. Like? Give me the universal people that might
have given this information. I don't remember that. Anybody? It was someone, obviously, who operated within the framework of town hall. I remember -- it
could have been at a meeting with Mr. Cushing. There was a meeting during 2008 with Mr. Cushing and Mr. MacDonald. This is about this matter.
I believe there was some meetings in which Mr. Madden may have joined us but I'm not sure. I don't remember that type of detail. This would be a routine I
wouldn't remember.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Q. A. A. Q. A. Q. A. Q.
matter. I understand. So the universal people so far is
Mr. Cushing, Mr. MacDonald, Mr. Madden? The universal people would be everybody that worked in town hall and the board of selectmen. So could have been board of selectmen members? Absolutely. Like who? Who was interested in this? Objection.
MR. COVINO:
I don't think who -- the question is who was interested. I think the selectmen from time to
time on any number of issues that were present would provide input at meetings, and at their own meetings I believe there was a meeting on the North Hill matter. If my memory is right there was a major meeting in either -- there was a major meeting in 2007, I believe there was a major meeting in 2008. What's a major meeting? It was a major public session with the board of selectmen on issues relating to North Hill. There's nothing in those tapes that indicates anything about them discussing opening up the
60
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. Q. A. A. A. Q. A. Q. A. Q. Q. A.
process, is there? meetings, did it? MR. COVINO:
That didn't happen at these
Objection.
There are no tapes because when I went to get the tapes, they were erased. Mr. Troy, was there any discussion at these so-called major meetings of opening up the process? I wasn't at the meetings. So you don't know what happened at meetings? No. Okay. So were there -- is it fair to say that
Mr. MacDonald never indicated to you that he did not want Johnson Golf to get the next contract? Yes. And did he -- what did he tell you to do with regard to the process? I want to make sure that I made -- Mr. MacDonald never said that he wanted the process to work so that Johnson Golf did not get the award. That is the question. How about Mr. Cushing?
The answer to that is yes. How about Mr. Cushing? Mr. Cushing never said that, no.
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Q.
Any member of the board of selectmen ever say that?
A. Q.
No. So it's fair to say your instructions were to make the process legal? MR. COVINO: MR. KESTEN: of you? MR. COVINO: MR. KESTEN: please. MR. EDGE: question. I do not object to the Yes. Art, weigh in. David, Objection. You're objecting, too? Both
A. Q. A. Q.
Did I get an instruction as to make it legal? Yes. Yes. What was your instructions to -- your advice regarding this process?
A.
There weren't any one set of instructions.
The
instructions were simply to undertake whatever was discussed at the meeting in September of 2008 with Mr. MacDonald and Mr. Cushing.
Q. A.
That was your first involvement, this meeting? Well, that was the first meeting specifically
62
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. Q. A. Q. Q. A. Q. A.
about this.
There were previous discussions
about the fact that it was going to go out to bid prior to that as I had just told you. With unnamed people? With people that are unnamed because I have no reason to remember them. Other than what's in your mind? Other than the fact that I have a memory of discussions, yes. Right. So the first meeting you recall about
this process happened in September of 2008? Well, the first meeting that was specifically scheduled to do the RFP or to get the ball rolling, that was in September of 2008. What does that mean, specifically scheduled? Were there previous meetings that weren't previously scheduled? Right. Because the practice, as I just
explained to you, the practice in most town halls is that when the lawyers deal with the manager or the administrator, a number of issues are discussed at the table at the same time. Were there previous meetings prior to September regarding North Hill between you and
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. A. Q. A. A. Q. A.
Mr. MacDonald or anyone else at town hall? There were. In 2008? There were discussions at town hall. If you
want to call them meetings, I guess you could term them meetings. Yes. There were discussions I believe at
various times throughout 2008 about the fact that the contract was ending and that it was going to be -- there were discussions -- I know the North Hill Committee was holding its discussions. Sometimes the North Hill Committee
spoke or communicated with the selectmen. And sometimes in addition to the meetings, the North Hill Committee and the meetings of the board of selectmen, there were meetings at town hall with the town manager and other town officials in which the procurement process was discussed. That you were present at? I was present, yes, but they weren't officially scheduled meetings. What does that mean? Well, the meeting in September -CONTINUED DEPOSITION OF ROBERT S. TROY
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MR. GILL: taking pictures?
Excuse me, sir.
Are you
MR. JOHNSON: photos. MR. GILL: off.
No.
I'm looking at my
Because your flash is going
It's kind of distracting. MR. JOHNSON: MR. GILL: I'm sorry.
I'd ask you to stop. I didn't know I was doing
MR. JOHNSON: that. MR. GILL:
Thank you.
There's a question out there. I thought I answered it. question. I don't remember the
What is the question?
What is the difference between a scheduled meeting and other meetings that you had with people about the topic? Well, when somebody walks into your office and begins speaking to you about something, that's not a scheduled meeting. But if you invite
someone and you have a client come into your office and it's a two o'clock on a specific date to talk about a specific case, that's a scheduled meeting.
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Q.
And you are saying that the first scheduled meeting about North Hill was the September meeting?
A.
I am saying that my memory is that the first meeting that was officially set up to do the RFP, not about North Hill but about the RFP for North Hill prior to the RFP process beginning, the first scheduled meeting -- let me rephrase that because actually, the night before the meeting that I had with Mr. Cushing and Mr. MacDonald there was a meeting of the North Hill Committee and Mr. Cushing. So the first -- I wasn't at that meeting. First meeting that I was at immediately prior to the commencement of the RFP process that was an officially scheduled meeting of the RFP was in September, the first week in September of 2008.
Q.
And you have an independent memory of this date, of this meeting? bills? Or you're relying on your
A.
No.
I don't have an independent memory of
the -- I have a memory of the meeting, yes. Vague memory, but I don't remember the date. I
know it was in the first two weeks of September

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of 2008. Have you reviewed your bills and ascertained there was a September meeting? know? No. I remembered it when I reviewed all the Is that how you
e-mails that were attended to the RFP process. When was that? That would have been earlier this year. remember when. So that was -- by the time of this first scheduled meeting that you are now talking about, had you done anything with regard to the RFP? No. That is when you began your review of the RFP? Yes. What were you instructed to do? I was instructed -- Mr. Cushing, I believe, brought a draft of the RFP that he had discussed with the North Hill Committee the night before and there was some discussion about that. meeting -At this meeting? This scheduled meeting? That I don't
I wasn't finished.
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Q. A.
Sorry. And the RFP was looked at by Mr. MacDonald, and not in a specific sense but in a general sense, and there was discussion about opening up the process to other bidders and how that could be done at that meeting.
Q. A.
Who discussed it? Mr. Cushing and, I don't remember but Mr. MacDonald was -- I don't remember whether he participated in the discussion but he was there.
Q.
Was this an idea -- did you get any information at the meeting that this idea had come from the North Hill Committee?
A.
I didn't get any -- I don't remember who had discussed the idea. was discussed. I just remember the idea
Q.
You have no -- okay.
And did someone instruct
you to modify the RFP to achieve that?

A.
First of all, I didn't write any of the RFP. just made suggestions. So what I did was to
take the document and I made a number of suggestions which were then forwarded to Mr. Cushing and then shared with the people, the selectmen, I believe, the North Hill Committee
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and some other people that were on the e-mail chain. What other people? I think Mr. Madden was on the e-mail chain, I think the selectmen, I think at least one member of the North Hill Committee. Who's that? Mr. MacDonald. That -I don't remember. Now, at that meeting, the September meeting you're talking about, were you instructed by someone to make suggestions which could be incorporated into the RFP to open the process to people who are not managing golf courses? Right. Mr. Cushing made that suggestion.
Mr. Cushing? Mr. Cushing, I believe, suggested it and Mr. MacDonald approved it. Mr. Cushing suggested doing that? That's my memory, yes. Was it his idea or did he tell you -I don't know. -- he had gotten that from other people?
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A.
My memory of this meeting is not that specific. It was a routine meeting and I don't remember anything other than we were putting out another RFP, this is what we need to do. remember about it. That's all I
Q.
But you have a specific memory it was Mr. Cushing that told you he wanted to suggest to you language which would open it up?
A. Q.
Yes. And did you do it right there or did you do that later?
A. Q.
I don't remember. When did you first remember this conversation? Say in the last two years, when did you -- the first time you remembered that Mr. Cushing had told you, made a suggestion to add the language?
A. Q. A. Q. A. Q. A. Q.
I don't remember that. You didn't remember it on April 4th. I'm sorry? You didn't remember it on April 4th. Are you testifying? Did you remember it April 4th? What is April 4th? A meeting held with you, me and your entire law
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firm, some guy, Mr. Cushing and Mr. MacDonald in the Mural. This is at a time when you were representing me, Mr. Kesten. Mr. Troy, there were others there. Well, you can ask -MR. GILL: Let's -- Mr. Kesten, stop with Nice try.
the -- stop with the ad hominem remarks. Did you remember at the meeting that you had that Mr. Cushing had told you to insert the language? I don't remember specifically everything that was discussed at that meeting. I don't remember
whether I remembered that or not. So it's possible that you regained this memory after April 4th? MR. GILL: Objection. It's a
It's not a question of regaining it.
question of refreshing my memory during the course of time when I looked at various documents. So was your memory refreshed after April 4th? I don't remember whether my memory was refreshed afterward or -- I don't remember what my memory
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was on April 4th. Okay. Now, how many times, on how many separate
occasions did you suggest modifications in an RFP? I believe on two, but I don't have a specific memory other than the documents that I have. Were all your suggestions incorporated into the RFP? No. What was not? I don't remember. Did you make a suggestion to add the language that the town reserves the right to cancel all the awards? Did you make that suggestion? There had been a
That, I believe was discussed.
problem with some type of bid previous to that, and I think that I had made a, maybe a suggestion. I believe I discussed at the
meeting in September that that was very important that that be included in the document. Because it wasn't at the time? I don't remember whether it was in it or it was not in it. Well, if it was in it then you're saying it was
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there and it may have already been there before? No. There was just reference to something, an
issue on procurement in which that issue had come up, and I remember saying make sure that's in there. or not. Okay. Because I don't remember really, you know, reviewing the -- looking at details of the document beyond the general sense at the September meeting. But you did look at it in detail subsequent to September before it went out, right? Almost immediately I made a set of suggestions, but not that day. I took it back to my office. Then subsequent I don't know whether it was in there
You made a set of suggestions.
to that did you make further suggestions? I did, yes. How long did that go? I don't know. It was a relatively -- the whole
thing was a short period of time. Were there any further meetings? No. The only meeting you had was in September?
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A. Q.
Yes. The rest of your input up until the time the RFP went out was how?
A. Q.
I'm sorry? How did you make your input after that meeting up until the time the RFP went out?
A. Q. A. Q.
I don't understand what that means. Well, you made suggestions, right? I made two sets of suggestions. How did you communicate those to Mr. Cushing or Mr. MacDonald or anyone?
A.
I sent my suggestions, I believe, to Mr. Cushing.
Q. A. Q.
How? I don't know. How? I have no idea.
What's your normal course of business in
sending documents to the town?

A. Q. A. Q.
What I do now? Then. Well, then probably they were faxed. Who does the faxing at your office? Who did the
faxing at your office in the fall of 2008?

A. Q.
I don't know.
I have no idea. How did
How would you receive the new drafts?

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you receive the new drafts in 2008? I don't know. As of the time that the RFP went out which was October, I believe -- do you recall it was in October? No. Do you recall when it went out? It was September. The RFP went out in September? Right. September what? I don't know the date. Okay. When you reviewed the RFP in September
before it went out, did you note any modifications to it other than yours since you saw the first draft in September until it went out? I didn't analyze it. So you don't know? There could have been. But you don't know? Did I know then or do I know now? Well, let's start then. I believe that there were things deleted, yes.
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Q. A.
From the time -- by other people? I believe there was some discussions. even sure they ever ended in -- no. I'm not
I believe
some things were deleted about some type of practice field.

Q. A. Q.
Who did that? Mr. Cushing. Okay. Did anyone else make any additions or
deletions to the RFP or the management contract from the time of the meeting when you were handed the draft until it went out on September 26th?
A. Q. A.
Anyone else other than who? You and Mr. Cushing. I just made suggestions. entire document. add anything. document. Mr. Cushing did the
I didn't delete anything or
Mr. Cushing did the entire
Q.
Okay.
And I take it -- well, these others So other than -- did you see any
deletions.
changes in the document that were suggested and incorporated by anyone else besides you and Mr. Cushing?
A.
No, not that I remember.

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Q.
As you understood the system back then the RFP went out in September, right? Yes?
A. Q.
Yes. And the proposals were due back when; do you recall?
A. Q.
I believe in October. And as you understood the process, how was it going to work from there? Where do they come to? Proposals come back.
A.
After that I didn't understand.
After that it
was being conducted at town hall so I didn't have any -- I wasn't given any instructions to do anything other than answer some questions. So I don't know what they -- how they were planning on doing it.
Q.
What was your understanding of the 30B process in October of 2008? What was your understanding
of how the 30B process worked?

A. Q. A.
I didn't have any understanding. You didn't know 30B? I was not told to do anything with respect to that so I wasn't focused on it.
Q.
I'm not asking if you were focused on it or told to do anything. I'm asking you, did you
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understand how the 30B process worked? I understood in a general sense, sure. Proposals come back. What's supposed to happen?
I did not focus on that. I'm not asking if you focused on that. I'm
asking for your knowledge about the 30B process in October of 2008. What was your --
I don't remember what my knowledge was at that time. What's your knowledge now? My knowledge would be in a very general sense I would know. What do you know? Proposals come back. What's
supposed to happen? I believe they are -- would be given to the evaluators and the evaluations are to be done by the evaluators. Yep. And then the procurement officer is to open the evaluations and read them and look at the price proposals. And then after that -- no. It could
be done simultaneously, open the price and the non-price proposals. It should be done simultaneously as you
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understand it? It could be. Is that the way the Inspector General suggested it be done? MR. GILL: Objection. You can answer.
I don't know how the Inspector General suggested. I believe that the manual says it
can be done -- either the non-price proposals can be opened first or they -- I think they can be opened concurrently, too. manual. So everything you're telling me as to the state of your knowledge comes from the manual? Everything I remember right now is just general. I don't know where it comes from. knowledge. You just said it's in the manual. I know there is a part about that in the manual. Yes, there is. It says that you can open them concurrently, at the same time? Yes, I believe so. Did you know that in October? No.
It's in the
Just general
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Q. A. Q. A. Q.
Were you asked? I wasn't focused on anything about that. I'm not asking if you were focused. I didn't know it. I didn't look it up.
As you understood it, as of the date the bids went out, September 26th, was that going to be the end of your involvement with the bidding process?
A.
Until I was -- well, I didn't have any understanding whether it was going to be the end or what was going to happen. I just would
receive an assignment as directed. And so I guess when the bids went out I didn't know that there were going to be questions so I didn't know what was going to happen. Generally I didn't, you know,
participate in the RFP process unless asked.

Q.
Well, was there concern -- did anyone tell you of any concern they had about this RFP process? This particular one?
A. Q.
I don't remember anything about that. Were there any discussions about Mr. Johnson's propensity to sue?
A.
There could have been.
I don't remember.
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Q. A. Q.
You have no memory of that? I don't have any memory of that, no. So once the RFP went out and the proposals came back, when is the -- what's the next thing that you learned about the RFP process?
A. Q. A.
Well, there was some questions. Questions. Okay.
And I prepared drafts, response suggestions, sent them back to the recreation director.
Q. A. Q. A.
Then once the proposals came back? I don't think I heard anything more after that. Until? At some point I got a call saying that there was -- they wanted to have a meeting about the -- I believe I got a call that the proposals had been opened and that there was some discussion but I didn't get any real information. There was
just, I got a scheduling inquiry, could we schedule a meeting on North Hill.

Q. A. Q. A.
From who? You had to come up to town hall. From who? From Barbara Ripley, and I believe I actually got a call from the town manager, too.
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Q. A. Q. A.
Richard MacDonald called you? Yes. What did he tell you? Just that there were issues and they needed to meet.
Q. A. Q. A. Q.
There was a problem? I don't remember him saying it was a problem. There were issues? Issues. Now, you say as you understood the process back then the proposals were opened once they come back and then they were given to the evaluators, right? Yes?
A. Q.
Yes. And the evaluators do price evaluations and -I'm sorry. They -- not the evaluators. The
bidders have to give sealed price evaluations; price proposals and non-price proposals, right?
A. Q. A. Q. A.
Yes. And the price proposals are sealed, correct? I think they're all sealed but I don't know. Separately? I assume they are. envelopes.
I think there's two sets of
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Q.
Right.
One is the price proposal; one is the
non-price proposal?
A. Q.
Right. So once opened, when the bids come in, are there price proposals? MR. GILL: happened? MR. KESTEN: MR. GILL: question. That's right. Are you asking if that's what
I'm going to object to the
If you understand the question, you
can answer it.

A. Q.
No.
I don't understand the question.
When the process -- when the bid comes in, two envelopes, each bidder submits two envelopes, a sealed non-price proposal and a sealed price proposal, right?
A. Q.
I believe so. What does the town open? supposed to open? What is the town
A.
I can't answer that, I said.
I believe that
they -- when the bids come in the evaluators are given the non-price proposals.
Q. A.
Opened?
They have to be opened?
They open them, right.

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Q. A. Q. A. Q.
Who opens them? I have no idea.
The town?
Or the evaluators? I have no idea. Okay. But the evaluators get the non-price
proposals, right?
A. Q. A. Q.
I assume so, yes. And the price proposals stay sealed? Yes. And then the evaluators turn in their evaluations?
A. Q.
Yes. And then the town -- the procurement officer reviews the evaluations?
A. Q.
Yes. Had that happened before you got this call from Mr. MacDonald?
A. Q.
I believe so. So is it fair to say Mr. MacDonald told you there was a problem with the evaluations?
A.
I don't remember him saying there was a problem, no. I just remember there was a need to come to
town hall and that -- very little information. That's all I remember.
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Q.
But he told you they had reviewed the evaluations, right?
A.
I believe they said they had opened the -- I don't remember what he said. speculating. I'd be
I can't remember.
Q.
Did he tell you whether they had opened the price proposals already?
A. Q.
I can't remember. When's the last time you talked to Barbara Ripley?
A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.
When's the last time I talked to her? Yeah. I don't remember. I guess the day she left.
Did you ever talk to her about this process? About the price proposals? This whole process, yes. Yes. Certainly, I did.
Did you talk to her since she left town hall? No. I have. Okay. Now, so when did you go to this meeting? that a scheduled meeting, Mr. Troy? Was
A.
This was a scheduled meeting, yes.

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Q. A.
When was this? It was, I believe it was the day before Thanksgiving.
Q. A. Q. A. Q. A. Q. A.
And you went to town hall? I did. You met in Mr. MacDonald's office? MacDonald. Mr. MacDonald's office? Yes. Who was there? I believe it was Mr. Cushing and me, and I believe Barbara Ripley was there.
Q. A.
She was.
What happened?
We -- someone had brought the envelopes in and the non-price proposals and the price proposals were opened, they had already been opened. They
had had a previous meeting, and the evaluations were also opened. And the focus of the meeting
was on the evaluations and there were problems pointed out in the evaluations.
Q. A.
Pointed out by who? I was asked to look at them. I don't remember
who pointed them out, either Mr. Cushing or Mr. MacDonald.

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Q.
Either Mr. Cushing or Mr. MacDonald pointed out that they had -- is it fair to say that -- is it true that they told you that when they had opened these evaluations previous before calling you they noted there was a problem with some of the evaluators' work?
A.
They could have said that.
I don't remember.
don't really remember anything specifically that was discussed. I just remember that the focus
was on the problems with the evaluations and what could be done. Could the award -- that was
the key inquiry is could the award be made in these circumstances.

Q.
Now, were the price proposals -- did you have any understanding on that day that the price proposals had been opened previously?
A.
Yes.
That they had been opened at a previous
meeting.
Q.
So in the previous meeting they told you they opened both the evaluations and the price proposals?
A. Q. A.
Everything.
They had opened everything.
And what were you told to do and by whom? At some point, I think it was Mr. MacDonald who
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-- there was a concern about the time table and whether or not there would be enough time to rebid the whole process. And so the question
was is there any way that given these evaluations, that the award can be made. Who asked the question? Mr. MacDonald. And what did you say? I said I didn't know, I'd have to look into it. Well, did you look at them at this meeting? I looked at them. Yes, I did.
How long was the meeting? I don't remember exactly. It was not a short I mean,
meeting but it was not a long meeting.
it wasn't -- it was a fairly long meeting, maybe an hour. An hour. You keep time -- you kept time records
then, correct? I did. Do the individual entries as they appear in your office, do they have the time for each event? No, they don't. They don't? No.
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Q. A. Q. A.
So how do you get the aggregate time? The aggregate time is done by a total. How do you get the total? I actually don't do the input so I don't know. They input various data.
Q. A.
Do you input times? I don't do any inputting but the person who does the billing does.
Q. A. Q. A.
Based on information you give them? Yes. What information do you give them? I give them information about how long the meeting is.
Q. A. Q. A.
How do you do that? I usually do it contemporaneously. How and on what? I can do it on a telephone call. I talk to the
office all the time or I -- sometimes if it is something that I am doing in the office it's not -- I give them a record.
Q. A.
A timesheet? Not really a timesheet, just a record of what I did and who I talked to.
Q.
And how long it took?

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A. Q.
Right. And do they input that information into your computer system?
A. Q. A. Q.
I assume they do, yes. So where is it now? Where is what information? The information as to how long each event took in your 2008 and 2009 bills.
A.
It's a total aggregate sum. of bills.
We have two types
Some clients want an itemized bill Others
and the bill shows each amount of time.
don't request that and there's an aggregate total.

Q.
Well, Mr. Troy, isn't it true that the bills that you -- that are generated by your office all have individual times?
A. Q.
No. And that for some of your clients such as Duxbury you have someone taking the individual times, not just the aggregate?
A. Q. A.
No. No? I don't know the answer to that. how the bills are -CONTINUED DEPOSITION OF ROBERT S. TROY
I don't know
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Q. A. Q. A. Q. A. Q. A.
Who would know? Huh? Who would know? Again? Who would know? I assume the people who produce the bills. Who is that? Gail O'Neill is the person primarily, but there are other people.
Q. A. Q. A. Q. A. Q. A. Q. A.
Gail O'Neill? Yes. And she works for you? Yes, she does. How long has she worked for you? Maybe 15 years. What's her title? I would say she's the office administrator. Who are the other people that might know? I don't know exactly who. of people who assist. There's been a number
I don't know the names.
Q.
So Mr. Troy, do you remember telling me and Gordon Cushing and Richard MacDonald on April 4, 2012 that you had bills in the office which had individual time records? Do you remember
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telling us that? MR. COVINO: Objection.
Anything that I told you on April 4th of 2012 I told you in confidence. In front of Richard MacDonald and Gordon Cushing? I don't remember telling you anything in front of them. MR. GILL: Let him finish the answer.
The April 4th meeting in the Mural Room with Gordon Cushing and Richard MacDonald, you remember that, right? Yes. Do you remember at that meeting with them sitting there, you telling all of us that you did have individuals records with individual times in your office and you would get them? No. I don't remember telling you that.
Do you remember a discussion about that topic? You might have asked something about that. I
did not tell you that because I knew that would not be a correct answer. You remember asking me what? I remember you peering over my shoulder and
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looking at my records and saying -- because the records had been made available to you and you made an inquiry about that. yes. What did you say? I just said I think -- I don't remember exactly so I'm not going to speculate. speculation. It's I do remember that,
I remember you making some inquiry
about it, yes. Had you checked into it since and discovered there are no such records? I understand that when the bills are issued and they're finalized there's an aggregate total. Beyond that, I don't know. I'd have to, you
know, refer you to -- you would have to look into how the bills are constructed. know. Okay. So did you call the office of the I don't
Inspector General during this meeting? I don't recall specifically when I called the office of the Inspector General. But sometime,
at some point during this period of time I did call the office of the Inspector General. Do you have any memory as to whether or not you
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called them on November 26th from town hall? I don't. I have a general memory that was
corroborated by other people that suggested that it was during that meeting or at another meeting thereafter, but I don't remember exactly when it was. I remember there was a meeting that I left
the room and I made a call and I came back, but I don't remember the meeting, no. So you made a call during this meeting? No. I didn't say I made a call during this
meeting. You just said you remember a meeting where you left the room and made a call. Exactly, at some point, but not -- I'm not sure it's this meeting. Mr. Troy, I just want to be clear. You remember
this phone call to the Inspector General happened during the meeting in which you left the meeting to make the call? No. That's not what I said. I said that I
remember a meeting. Yeah. Some meeting. Yeah.

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A.
I made a call to the Inspector General and came back into the room, but I'm not sure it was this particular -- it was this call.
Q. A. Q.
I got you. The initial call. Right. That's what I'm saying. You
That's what I asked you.
specifically remember it was a meeting?

A. Q. A.
No.
I do not remember it was a meeting.
What? I remember that I made a call to the Inspector General at a meeting at town hall and I returned to the room, but whether or not that's the call that was made during this time period, I'm not sure, no.
Q. A.
This could have been another call? Yes. Absolutely. Not another call. It could
have been a call that I made to the Inspector General. I made a general inquiry, and I'm not
certain as of the time or the place or when I made it, except I have a memory that I contacted the Inspector General and made a general inquiry about issues relating to the evaluations.
Q.
Tell me about your prior contact with the Inspector General before this call.
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A. Q.
I'm sorry? Had you ever consulted the Inspector General for advice about anything?
A. Q. A. Q. A.
Yes. Like what? I can't remember. You have no memory of anything? I would call the Inspector General about issues that related to the jurisdiction.
Q. A.
Like what? I believe that I had made calls to the Inspector General at various times about different issues. I can't remember any of -- I don't remember.
Q. A.
Give me an issue. I don't remember. procurement issue. It must have been a
Q. A. Q.
Procurement? I assume. That seems -So you believe -- you have a
Why do you assume?
memory that you made multiple calls to the Inspector General in the past about procurement issues?
A.
Is that what you're telling me?
Yeah.
During, you know, I have been practicing
municipal law for 35 years and I very clearly

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have called the Inspector General.
As a matter
of fact, I had the Inspector General -- we had communication with the Inspector General on previous issues regarding North Hill. You did? Right. Cool. When?
I don't remember. Previous RFPs? Yes. Who did you talk to then? I don't remember. Did you know the names of anybody up there in the fall of 2008? Did you know the names of
anybody on the Inspector General's staff? No. No. Did you know who the Inspector General was?
Sure. How did you know that? I knew who he was because, just like I knew who the secretary of state was. It's just --
You had talked to the Inspector General's office about prior procurement of the North Hill management contract?
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A. Q. A.
Yes.
That had been previous.
Not this year.
Right. But previous, yes. There were -- there had been
some protests or something in the earlier times.

Q.
So did someone tell you to call the Inspector General in 2008?
A.
I believe the town manager asked me to check with the Inspector General, yes.
Q. A. Q.
When was that? I believe at this meeting. So at this meeting the town manager told you to check with the Inspector General?
A.
Yep.
Or to check to make sure -- you know, he
didn't -- he generally wasn't specific about directives. He'd say, I want to make sure it's
legal, check that it's legal, something like that.

Q. A.
Which is it?
Pick. I don't remember with So
I don't remember.
specificity details of meetings like this.
this is one of many of hundreds of matters that I've handled with the Town of Duxbury, and I don't remember the specific details of a meeting that took place four years ago, no.
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Q.
So you don't remember whether the town manager asked you to check with the Inspector General? Is that your final answer?
A.
I remember that he at some point -MR. GILL: form of that. I am going to object to the
A.
I remember that he asked at some point that I check it with the Inspector General, and I believe it was at that meeting but I don't have a specific memory. Or to check that it's legal
or something like that.

Q. A.
Which is it? I don't remember. I don't remember. Not that
-- I don't know that that makes any difference.

Q. A. Q.
Excuse me? I don't know that it makes any difference. You prepared an affidavit that Gordon Cushing executed indicating that the town manager asked you to check with the Inspector General. know that? You do
A. Q. A. Q.
I did not prepare that affidavit. You didn't? No, I did not. Who prepared it?
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A.
I only prepared one affidavit with respect to this matter that I did with Mr. MacDonald and Mr. Cushing. Other than that, I didn't prepare
any of the affidavits.

Q. A. Q. A.
Who does it then? Whoever was signing the affidavit and a lawyer. Who? I don't know. You'd have to show me the I don't know, but I know I
specific affidavit. only prepared one.

Q.
Well, before my firm got involved, Mr. Troy, when affidavits were filed on behalf of the town in this case, was there anyone besides you and your office that prepared them?
A. Q. A. Q. A. Q.
My office prepared them. Who? I don't remember you preparing any affidavits. I understand. I know.
Or preparing anything. I know. You did all the work. You prepared
everything.
You represented the witnesses.
Now the question I have for you is, there's an affidavit that was filed in this case which Gordon Cushing signed in a pleading that
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you filed in which he indicates you were asked by Mr. MacDonald to contact the Inspector General before the bids were rejected. Right. Do you recall that happening? No. I don't recall the affidavit but --
Do you recall that happening? No. But if Mr. Cushing signed an affidavit, I
assume that is correct, that's his understanding that it's his memory of whatever happened. Well, but you don't remember that? I didn't prepare the affidavit. But you don't remember that? that happening? You don't remember
Do you have a memory, yes or
no, that Mr. MacDonald told you to call the Inspector General before the bids were canceled? Do you have such a memory? That is a different question than you asked before. Between the time of November 26th and
when the bids were rejected -December 1st. Mr. MacDonald did ask me to check with the Inspector General, yes. That's your final answer?
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A. Q.
At some point. You have a memory now that he told you to call the Inspector General and check?
A.
It's a different question.
You asked whether I
remember at the meeting of November 26th -Q. A. Q.
No, I didn't. Yes. That's what you said. You'll see that
You can review this transcript. I didn't.
All I want from you is your final I just want your final
memory, Mr. Troy. answer.
So you're now telling me you now remember that at some point before the bids were canceled Mr. MacDonald instructed you to call the Inspector General? MR. GILL: question. I'm going to object to the
Let's not have argument, please, If you would ask him a clean
Mr. Kesten.
question, he will answer it. MR. KESTEN:

Q.
It's really clean.
Mr. Troy, do you remember as you sit here today that Mr. Richard MacDonald told you to call the Inspector General prior to the time that the bids were rejected in December of 2008?
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A.
Mr. MacDonald told me to call the Inspector General or something to the effect to make sure that it was legal between the time when the bids were brought to my attention on November 26th and when they were rejected.
Q.
So your memory now is that you might have called the Inspector General or you might not have called the Inspector General to make sure it's legal?
A.
My memory is that it was one or the other, and to make sure that it was correct.
Q.
So he may have asked you to call the Inspector General?
A.
I don't remember with specificity what he said. No, I don't.
Q.
I want to be clear.
You're now telling me you
may not have called the Inspector General? MR. COVINO:

A.
Objection.
I'm not telling you anything different when you're asking questions. what is my final answer. I'm now telling you My answer that I have
is a general memory and I have told you what my general memory is.
Q.
That either he told you -- just, I'm making sure

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that I'm right, that we have it.
That either he
told you to call the Inspector General or he simply told you to make sure it's right? I've answered this question. That's your answer? Those are the two choices? My memory is
It's not a question of choices.
that he told me to make sure it was legal or to check with the Inspector General. But
regardless of what he told me I also have a general memory that during this period of time, I don't recall the specifics, I did call the Inspector General and asked a question. And you may have called on your own initiative, not having been so instructed by Mr. MacDonald? MR. COVINO: I don't remember. Objection. I think that Mr. MacDonald
was very interested in making sure that whatever was done was done legally. Okay. call? I don't remember. What are the possibilities? No idea. No idea?
Now, where were you when you made this
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A. Q. A.
No. Was the call made during business hours? I don't know. Well, obviously business hours
because I talked to somebody, obviously.

Q. A.
So, and the bids were rejected when? I'm not exactly sure when they were rejected. The letter came from town hall but I believe it was in early December.
Q. A.
Well, you drafted the letter, right? I did. I drafted the letter, yes, but I didn't
send the letter.

Q.
Correct.
You drafted a letter so Mr. MacDonald
could sign it from his hospital bed, remember?

A.
Mr. MacDonald suggested to me that he -- I didn't know that he was in a hospital bed, no. I did not know.
Q. A. Q.
You didn't? No. You weren't communicating with Barbara at the time about who was going to sign?
A.
I knew he was out of the office. he was in the hospital.
I didn't know
Q.
Now, Mr. Troy, when was the decision made to rescind the bid?
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A.
The decision was made at some point prior to my being instructed to draft the letter and a telephone call from Mr. MacDonald.
Q.
The decision was made -- the decision was communicated to you on a telephone call?
A. Q.
Yes. Weren't you at a meeting the day after the Thanksgiving weekend?
A.
I believe there was a -- I believe there was a meeting on the Monday after Thanksgiving but I'm not certain of that. memory as to that. I don't have a clear
Q. A. Q. A.
Do you have any memory of it? I have a vague memory, but not specific, no. What's your vague memory of that meeting? That there was a meeting and the issues were discussed and my interpretation of the evaluations were discussed -- was discussed.
Q. A.
And you remember this meeting happening when? I'm not sure that it happened because if there were additional meetings it would have been the morning of the Monday following the other meeting, but I'm not sure if there was but I think there was.
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Q. A.
There might not have been a meeting? I have no documentation there was a meeting so I would need something to refresh my memory. I
have a vague memory that there was a meeting that Monday morning, yes, but I'm not sure.
Q.
Now, at the time of that meeting, this was -this was the second meeting -- strike that. The meeting after, the first meeting after Thanksgiving, had you talked to the Inspector General yet?
A.
I don't remember when I talked to the Inspector General.
Q.
But you do remember it was before the decision to rescind the bids was made?
A. Q.
Yes. And you passed on, I take it, the information you got from the Inspector General to Mr. MacDonald and Mr. Cushing?
A. Q.
I believe so. Tell me the conversation you had. and somebody says hello. general number? You called up
Did you call the
A. Q.
I don't remember any of the specifics. Anything?

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A. Q. A.
About -- no.
About a phone call, no.
You remember nothing about the phone call? What I do remember about the phone call is that I asked questions about -- the primary inquiry I was looking at was whether or not the procurement officer could interpolate the data and in effect try to superimpose the intent of the evaluator. I also talked about what the situation was, that one of the evaluators had used incorrect terminology and not explained the reasons or the composite rating, and that one of the evaluators, if my memory -- I don't have it in front of me. I'd have to look at it to One of the evaluators
refresh my memory again.
did not give a composite evaluation or reasons.

Q.
You told them about all that? MR. GILL: I'm sorry. I didn't hear you.
Q. A.
You told them about all that? I asked about what the requirements were. don't remember the specific conversation. remember that, though. I I
I remember that there What was
was a discussion about that issue. said, I don't know.
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I also -- I remember them concluding and saying that the rebid would be the wisest course because there would be a lot of challenges from bidders. That's all I remember. You just
What do you remember telling them?
gave me a whole thing about the bids and the discussions. Hang on. Let me finish. You gave
me a whole thing about the status of the evaluations. My question is, is that what you told them? Why did you --
I don't remember specifically what I told them. Do you remember anything? I knew it was generic. particular thing. It was not about this
I asked questions generically
because I wanted to get information. Did you tell them who you were? No. You didn't? No. This was an anonymous call? It was not an anonymous call. an inquiry. Did you talk to a male or a female?
I just said I had
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A.
I don't remember.
I believe it was a male,
though, but I'm not sure.

Q.
Did you talk to the person who answered the phone or did they patch you through to somebody?
A.
No.
I don't remember that, either.
I don't
remember.
Q. A. Q.
You never identified yourself? No. And did you get the name of the person who you talked to?
A. Q. A. Q. A.
No. Did they tell you who they were? I don't know. I don't remember that, either.
That's your story? It's not a story. It was a routine conversation
and I had no reason to make any records of it.

Q.
In your previous, had you ever made a general anonymous inquiry to the Inspector General before this one? MR. COVINO: Objection. It was
A.
It was not a general, anonymous inquiry. a simple question. I asked the Inspector
General's Office a question, a legal question. He -- I was ultimately looking at the issues and
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I looked at them in terms of the manual and the Inspector General's manual and any other information that I got. Mr. Troy, I'm focused on your conversation with the Inspector General. You are now telling us
under oath you never identified yourself? I'm saying that I don't have any memory of identifying myself. You didn't identify your name? No. You didn't give them your role or anything about the entity you were talking about, right? You've asked me all this. I want to be clear. telling us? I've given my answer. Had you ever done that before? Have you ever So that's what you're
called the Inspector General before and gotten advice without identifying yourself? I don't remember whether I would. I routinely
called the state agencies and other agencies and ask questions and don't identify myself. Really? Yes.
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Q.
What do you tell them? citizen?
You're a concerned
A.
As a question, it's never asked.
If you have a
legal question, you ask a state agency for guidance, they give you the guidance.
Q. A. Q.
Of course they do. Right. And they say who am I speaking to, right? done it thousands of times. I've
A. Q.
I don't know what your experience is. In your experience you have had any number of conversations with state agencies in which you've never identified your name?
A. Q.
Yes.
Absolutely. Give me another one besides the
All right.
Inspector General that you did that to.

A.
I don't recall things of that nature in specifics because it is something that is done every day. As a matter of fact, I have called
agencies on numerous occasions and asked questions about matters within their jurisdiction and I've received information, yes.
Q. A.
That's not -- of course you have.
No question.
Without identifying -- without any issue, yes.

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Q. A. Q.
Without telling them your name? Yes. Absolutely.
When did you start telling the Inspector General your name during these communications about North Hill in 2008? When did you begin
identifying yourself?
A.
I don't remember.
I remember at some point the
Inspector General then communicated with us, meaning me, and called me.
Q. A.
Okay. I think that was after the complaints that were filed by Johnson.
Q.
So Mr. Troy, what are the universal telephones you used for this alleged conversation?
A. Q.
I don't know that. Well, you have no idea? cell phone? So it could be your
A.
I don't know what phone call was made on which lines or anything specific about when I made the call.
Q.
So Mr. Troy, I'm talking about the universe of phones available to you to make calls on. cell phone is one, right? Your
A.
I assume.
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Q. A. Q.
So, you assume? Right. You had a cell phone on you, right, at that time?
A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.
On me, I don't know. Do you carry a cell phone? Sometimes. Do you have a cell phone now? I do. I don't have it with me. I do.
You could have used a phone in town hall? Could have. You could have used a phone in your office? Could have. At Troy Wall Associates? True. Who was your provider in 2008? I don't know. You don't know. I don't know. You don't know who would know? Oh. Who would know. I'm sorry. I'm sorry. I thought you The people in Who would know?
said who is it now.
the office would know because they pay the bills.

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Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.
Who's that? Gail O'Neill would know. Okay. So she pays the phone bills?
She does. Could you have made this call from your house? Could have. Where do you live? Where do I live? Yeah. I live in Cohasset. What's your address? 150 Nichols Road. Is that where you were living in November and December of 2008?
A. Q. A.
I believe so. What was your phone number there at that time? I do not want my phone number on the record of this transcript. down. I'll write my phone number
Q. A. Q. A.
Okay. No.
Give it to me.
Is it secret?
Does Mr. Cushing know your phone number? He could. MR. KESTEN: Do you, Gordon?
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MR. CUSHING: MR. KESTEN:
Cell. Not the home, okay.
Who pays the bills for your home phone? I do. Who's your provider? I believe it is Verizon. Was it Verizon back then? I believe so. Are there any other phones that were available to you in November and December of 2008 from which you may have made this supposed phone call? Yeah. I could have used any phone that was
available. Like what? Any phone that I had access to, but I don't remember specifically. I don't remember where I I told you that. I
was when I made the call.
can't tell you, but at some point my best memory is and I believe that I made a call to the Inspector General. Either November 26th or December 1st, right? Yes. 2nd or 3rd, whatever date it was.
Whenever it was, yes.

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Q.
Well, it wasn't -- strike that. Do you recall a discussion after Thanksgiving during which -- well, strike that. What did you do after this November 26th meeting in regard to giving the town advice?
A. Q. A. Q. A. Q. A. Q. A.
I wrote a memo. Where is this memo? Where is it? Yeah. I'm missing your question. You're missing my question? It's in the file. What's it called? What is it called? evaluations. It's just a memo about the Where is it?
I don't remember what it's called.
I can't remember that.

Q. A.
When's the last time you saw it? Sometime back. file. I've seen it. It's part of the
Q. A.
When is the last time you saw it? I don't remember that. last time. I don't remember the
Q.
Was it since April of 2012 that you looked at this -CONTINUED DEPOSITION OF ROBERT S. TROY
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A. Q. A. Q.
Could have been. -- memo? Could have been. Could have been. that you gave me? It's in the file, the file
A. Q. A.
It is.
I believe it is, yeah.
And it's dated when? Around the period of time that we're talking about. I don't remember.
Q.
Did you deliver this memo to Mr. MacDonald and Mr. Cushing before the decision was made to rescind the award?
A. Q. A. Q. A. Q.
It was e-mailed. Did you e-mail this memo? Yes. Do you still have this e-mail? I believe so. Terrific. We'll get to see it. First
Did you e-mail this memo to them?
of all, did you e-mail -- who did you e-mail it to?

A. Q.
I assume to Mr. MacDonald. And did you e-mail a memo before the decision was made to rescind the -- stop the process?
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A. Q. A.
Yes. Did the memo contain any recommendations? I spoke to Mr. MacDonald about it also on the telephone because I believe he did have a health issue at some point and he was not at town hall.
Q. A. Q. A. Q.
I'm asking about the memo. Yes. Did you deliver this memo? I didn't deliver it. Did you e-mail this memo to town hall before Mr. MacDonald made the decision to rescind?
A. Q. A.
Yes. What information was in the memo? The memo was a summary of or an analysis of whether or not Mr. MacDonald as the chief procurement officer could interpolate the data on the evaluations in such a way as to make the award. And it talked about that, and it was basically an effort to do a numerical evaluation and assign it the criteria that the evaluators had used.
Q.
So this is a memo in which you analyzed the evaluations?

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A. Q. A. Q. A.
Yeah.
That was what my task was.
To analyze the evaluations? Right. Why? Why would you bother?
Because the evaluators -- the question was whether or not the data that was in the evaluations, was that sufficient to make an award.
Q.
Well, this would take about three minutes, right?
A. Q. A.
No. Why?
I don't agree.
Because it needed analysis and it needed to see whether or not the award could be made.
Q.
Well, those are two different issues.
The data Each
in the evaluations were straightforward.
evaluator had graded them based on a number of criteria, right?

A.
That's correct, but they had used improper terminology.
Q. A. Q. A.
In the composite? Right. Right. That's it? I'm sorry.
In the what?
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Q. A.
The composite. No. I don't think that's true. I think they
used improper criteria throughout and one of them did.

Q. A. Q.
He did? I'd have to look at it. My memory is -Isn't it a check
Mr. Troy, it's a check off.
off where you check off highly advantageous, advantageous, not advantageous, unacceptable?
A.
I'd have to look at them.
If you want to direct
my attention, you'd have to give me documents and direct my attention to them.

Q.
Here's my question. MR. FOLLANSBEE: They're right in front
of the computer, all the original exhibits. MR. GILL: for lunch? MR. KESTEN: MR. GILL: break. One o'clock. When would you like to break
I'd like to take a short
(Recess taken.)
Q.
You have before you, it looks like Exhibit 10?

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A. Q.
I do. And can we agree that the improper language was used in the composite?
A.
This rating of Floreano has improper language in the composite.
Q. A.
Right. And also, I don't see in this, it's missing here. I don't see there are any reasons.
Q.
Well, let's forget the reasons for the moment, but the improper language is the composite for Floreano, right?
A. Q. A. Q. A. Q.
Yes. And the other guy, what's his name? Dixon. Dixon doesn't have a composite? Exactly. Right. And that's readily apparent the first It's right there, right?
time you look at them.

A. Q.
Right. And the question you asked the IG in this anonymous conversation was whether the town could interpolate the actual evaluations to make a composite, right?
A.
Right.
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Q.
And did you have any discussions with anyone about the possibility of giving these evaluations back to Floreano and Dixon and having them finish?
A. Q. A. Q. A.
Not that I remember. How come? I'm not sure that you can legally do that. Well, did you ask anyone? No. I actually didn't think -- I never -- it
does not -- I do not believe that you can legally do that.

Q. A. Q.
Did you ask anyone? No. Okay. Did you believe that you might be legally
able to interpolate?
A. Q. A. Q. A. Q.
That's what I was looking into. So that's what you thought might be possible? Exactly. The other one you didn't ask about? No. This person who you believe to be a male at the Inspector General's Office told you you could not interpolate? MR. GILL: Objection. You can answer.
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A.
The system that I was attempting to see whether it would work would be a numerical system, and I don't know whether they said that but I learned that at some point either from the conversation or from the Inspector General's manual, one or the other. I don't remember which.
Q. A.
What does that mean? In other words, my effort was to see whether or not you could take the answers to the criteria and assign values to them and thereby interpret whether qualified would mean highly advantageous. So, for instance, here for Johnson Golf Management Floreano has all highly advantageous. So what my inquiry was, could the procurement officer interpret qualified and say this is a highly advantageous.
Q. A.
Okay.
And they said no?
I'm not sure they said or that I learned it at some point, that the way that I was attempting to analyze it didn't comply.
Q.
What advice did you get from this unknown person at the Inspector General's Office?
A.
I don't remember the specific advice -CONTINUED DEPOSITION OF ROBERT S. TROY
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Q. A.
Any advice? -- beyond what I've told you. I've told you
everything I remember about it, that if the town made -- attempted to make the award based on the fact that the composite scores had not been done in accordance with the statute, there would be many challenges but -- that's what I remember chief, there would be many, many challenges.
Q. A.
From whom? From other bidders. Maybe all of them. Whoever
didn't get the award, I assume.
At that point I
had no idea who was going to get the award.

Q.
Who was going to get the award.
Well, had you
interpolated who would have gotten the award?

A.
The interpolation would have been that I had done using these evaluations, interpolating them, Johnson Golf would have got the highest scores.
Q. A.
When did you recognize that? I recognized that after I did the analysis that I did.
Q. A. Q.
Before the bids were rejected? Yes. Did you share that analysis with the town?
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A. Q. A. Q.
Yes. Who? Mr. MacDonald. Now, did Mr. MacDonald indicate he would have any problem in awarding it to Johnson Golf if it was legal?
A. Q.
No. The person at the Inspector General, did they recommend to you that the best course would be to start over?
A.
What they recommended was that if the composites were not done correctly, the challenges to the award if it were made would be such that there would be considerable delay in resolving it, and that the best thing would be to go out to bid, rebid, and correct it. And there was also some discussion about the evaluators being trained properly to do that. There was some discussion about that, I remember that.
they had resources available.

Q. A. Q.
So you talk to this anonymous person? Yes. This anonymous person told you the Inspector General had resources to train the evaluators?
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A.
I'm not sure the person was anonymous, either. I didn't know that. I'm not saying -- I don't I have no reason to
remember it, but who knows. remember. anonymous.

Q. A. Q. A. Q. A.
I'm not sure that person was
So that person may have given you their name? They could have. May you have given them your name? No. I didn't give them mine.
You wanted to maintain anonymity? I specifically wanted information so I could take the information back to the town and have the town make a decision rather than to flag something ahead of time that was going to be a problem. I wanted to give the town the
information that I got and let the town apply it to the facts.
Q.
So you wanted -- it was important to you that the Inspector General not know who you were or why you were calling?
A.
No.
It was important just to get what the legal
-- what the legal answers to the questions were outside of miring it down in a particular award, yes.
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Q.
Right.
So you consciously wanted to be
anonymous?
A.
I didn't consciously want to be anonymous.
wanted to get the information in what I thought was the most objective manner.
Q. A. Q.
You determined that would be by being anonymous? Absolutely. Right.
There was a discussion about the Inspector General being available or staff being available to train evaluators?
A. Q. A. Q. A.
Right. Did you pass this all on to the town? I did. So then you drafted the letter? That was drafted, you know. when but that was drafted. sure when it was drafted. sent to town hall. I don't remember I believe -- I'm not It was drafted and
Q. A. Q. A. Q.
But after all this? Yeah. After this conversation? Yeah. So you passed this to Mr. MacDonald, and Mr. MacDonald indicated to you he would then,
That was my question.
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based upon your advice, would rescind the award and start over? It wasn't my advice, no, I gave him. MR. KREIGER: rescind. MR. KESTEN: Good point. Stop the I object to the word
process, cancel the process. You didn't give any advice? No. I reported to him what I thought was the
options available to him. What did you tell him he could do? I said you can go ahead and you can make an award but it's going to be subject to challenges. To Johnson Golf? No. No. It wasn't to Johnson Golf, no. The
price proposals hadn't even been considered at this time. them. At least we had no discussion about
They had been opened, we knew what they
were, but you can make an award -- there was never any discussion about who the award was going to go to. You analyzed the price proposals? Correct.
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Q. A.
And the non-price proposals? But the statute requires you would have to go through each of the, just as they ultimately did, you'd have to go through each of the evaluations and the non-price proposals and look at price proposals, and none of that was ever done.
Q.
Right.
The statute requires that you look at
the proposals?
A. Q. A. Q. A. Q. A. Q.
Right. Non-price and price? Right. And the evaluations? And make a determination. Based on all three things? Right. None of that had been done. You had reviewed
You had done it, hadn't you? all that stuff?
A.
No.
I had looked at all of the stuff.
I had
not put myself in the position that I was looking to make the determination as to who would get the award. So to return to what I was saying what the options were, he could make an award, he
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could go ahead and do that process which he hadn't done -The interpolation? No. Do the process of looking at the prices,
the non-prices, and using the interpolation which was risky, or look at doing the whole thing over and rebid. Did you make a recommendation? No, I did not. You left it completely up to him? I asked, but it was pretty clear from, if you just look at what we had just discussed given the calendar, and I think we talked about this, that this was early December and the contract was expiring at the end of December, that it didn't seem wise to get into a process where we would be in flux because the course would then be closed, and the easier thing appeared to be to rebid it. Did you tell him all these things that you're telling us? It wouldn't be wise? I don't
I don't know what I said to him. remember the conversation.
The question is, did you, Bob Troy, make a

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recommendation as town counsel to Mr. MacDonald -- was Mr. Cushing there, by the way? Not at that telephone call. This was a telephone call? Right. He based the determination based on your providing information to him on a telephone call? He was not available. Thereafter you had a meeting on December 1st, it's in your billing records, where you met with Mr. Cushing and Mr. MacDonald and went over all this stuff? Yeah. No. That's not correct.
It's not? No. It is not in my billing records because
that's why I'm uncertain that the meeting actually happened. I remember the meeting but
it is not in my billing records and -But you remember the meeting? I have a vague memory that we met but I'm not certain that we did, and -- but I have a specific memory that we spoke. I spoke to
Mr. MacDonald and that is in my billing records

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which I have used to refresh my memory.
And
that memory is that this was discussed, the information that I had. Incidentally, I had looked and relied on the Inspector General's manual, too, in addition. I used that as part of my analysis,
and based on that, Mr. MacDonald said something to the effect that, you know, the way he spoke is not in legalisms. I want it to be clean, I We're
want it to be legal, draft me something. going to do it over again. right, something like that.
We're going to do it
So he made the decision, he communicated the decision to you during a telephone call after this meeting? Yes. Okay. Yes. And did you give any reasons in this letter? Did I give any reasons? Well, the reason that And you drafted the letter?
is in the -- in what I drafted, the reason was that it was in the public interest to rebid the project -- the process. So you considered that a reason?
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A. Q.
Yes. You e-mailed this draft to Barbara Ripley, right?
A. Q. A. Q.
Yes. And it went out? Yes. Okay. And when did you -- did you have the
discussion with Mr. MacDonald and did you have a discussion with Mr. Cushing as well about the training for the next set of evaluations to make sure it was legal? MR. GILL:
A.
Objection.
You can answer. I don't remember
That was spoken at sometime. when.
Q. A. Q. A.
Before he made the decision or after? I don't remember that. But you did pass this on to them? At some point before, yeah. Before we -- I I
might have even talked to Mr. Cushing, too.
don't remember, because I met with him and so I I'm not sure when, but that was definitely passed on.
Q. A.
To Mr. Cushing? I'm sorry?
To who?
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Q. A.
To who?
Passed it on to who?
I believe both Mr. Cushing and Mr. MacDonald, that there was training available and they should be trained. And also that it would be
better if people who were not on the North Hill Committee not serve as evaluators.
Q.
Had there been anybody on the North Hill Committee in the previous set?
A.
I believe that Mr. Floreano was on the North Hill Committee and Mr. Cushing was also on the North Hill Committee, ex-officio.
Q. A. Q.
So shortly thereafter the suit was filed? Yes. And you handled the defense all from the beginning?
A. Q. A. Q.
I did. And the Court, there was Judge Smith even then? It was. What was your understanding of Judge Smith's connection to Johnson Golf?
A. Q. A.
His connection to Johnson Golf? Yeah. Other than the fact I think there was some information that Mr. Follansbee had said at the
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beginning of his presentation that there was another case, I believe he had another case with Johnson Golf. You learned this from Mr. Follansbee? I believe Mr. Follansbee said that, yes. So that's where you learned it? I believe so. Okay. Now, the Court allowed the town to Johnson Golf tried to stop it
proceed, right?
but the Court allowed you to proceed, right? Yes. What did you do to ensure that the evaluators were trained? That wasn't my job. Nothing? I just told them there was training available and I was assured that the training was going to be provided. Who assured you? I believe the town manager did. Yes. The town I didn't do anything.
manager said that we're going to do it right. And he told you we'll train them? He said -- yeah. They'll make sure that it
won't happen again, that they don't know how to

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fill out the forms. As a matter of fact I remember a conversation with the town manager and Mr. Cushing in which it was talked about how there were materials available and to give them to the evaluators ahead of time, because I don't believe they were given any training the first round or I don't think they were given anything, and to give them some information about how to do it because it doesn't seem like it's that difficult to fill out a form. What information did you tell them? The Inspector General had information about how to fill out the forms. What information? I don't know what the information was. What did you tell Gordon he should do? Gordon was familiar with the procurement process, and I don't know whether there was -- I believe that Gordon did give them some information about how to fill it out but I don't know what it was. involvement. You had been told by the Inspector General, I
I wasn't in that level of
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thought you said you were, by this possibly anonymous person, that they had training available. Yeah. That's what you told us.
Training and materials available, yes. Who did they have
Who was going to do that?
available to do the training? I didn't get into that level of detail. Did you tell Mr. Cushing or Mr. MacDonald that the Inspector General, that you had called them and they would provide training? I know that Mr. Cushing had talked to the Inspector General before so I assumed he would know how to get whatever needed to be done. didn't get into that. I wasn't asked to. I
If I I
were asked to do it I would have done it. wasn't asked. MR. GILL: place to stop.
Sir, perhaps it is a good
It's one o'clock. Sure. How quickly can you
MR. KESTEN: come back?
It's up to you.
(Discussion off the record.)
(Recess taken.)
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(The question was read back.) So did you? Did -- I'm sorry? Did you tell either Cushing or MacDonald or both of them that you had talked to the Inspector General and they were available to train the evaluators? Yes. And that they had materials, too.
So you told them that? Yes. When? I don't remember when. It was sometime after.
It could have even -- it could have been either when I spoke to Gordon Cushing after the -immediately after the bids were rejected, or I think I met again subsequently with Richard and Gordon at some point after the bids had been rejected sometime in early December. Before or after you found out there was a lawsuit? Probably before. So there might have been another meeting after the one which you think may have occurred on December 1st?
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A. Q. A.
There could have been, yes, I think. What was that meeting for? It either could have been an administrative one in which we were just talking about other things, doing other work, or it could have been a scheduled meeting. Probably it was if it was
an administrative one. MR. KESTEN: next exhibit. (Exhibit No. 25 ID marked.)

Q. A. Q. A.
Would you mark this as the
Have you had a chance to look at this, Mr. Troy? I have. Who prepared it? I believe that this affidavit was the subject of interactions between Gordon Cushing and Craig Jordan.
Q. A.
You had nothing to do with it? I didn't have anything to do with the writing of it, no.
Q.
Did you have -- so but you recall that Craig Jordan interacted with Gordon Cushing and he produced this? Craig Jordan wrote this?
A.
No.
The way the affidavits are done, I don't
know this specific one, is either a meeting or a

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conversation on the telephone, or they're sent up to the individual after a telephone conversation who was going to sign it to look at it and cross check it, that it's accurate. And did you look at this affidavit before it was filed in court? I might have, yeah. yes. And you see in paragraph 10, do you agree or did you agree when you saw this statement sometime in 2010? No. Did you? Was that your memory then? This is not my I might have reviewed it,
This is not my affidavit.
memory.
This is Mr. Cushing's affidavit. My question is, when you
I know what it is.
looked at paragraph 10 before this was filed which apparently was sometime in 2010, when you looked at paragraph 10 did it reflect your memory? Did it affect my memory? Reflect that, how you remember it. I don't know, no. I don't know whether it
reflected my memory. Is that your memory now? I don't remember it. As I've just told you I
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don't remember anything specific about it. Gordon's memory may very well be better than my memory. Oh. So you did tell Craig Jordan to tell Gordon
to lie at his deposition? MR. GILL: No. That was Gordon's memory. No. I don't think that was Gordon's memory. Objection.
Did you talk to Craig Jordan on the cell phone during Gordon Cushing's deposition? I don't know whether I talked to him during it, but I talked to him prior to. talked to him during it. I could have
I don't know.
Did Craig Jordan tell you that Gordon Cushing was testifying that you had inserted the language comparable business entity? No. We didn't talk about that. We talked about
-- my memory is that we talked about the description of my role in actually drafting the RFP. And what did he tell you? What did who tell me? Craig.
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A. Q.
I don't remember what he told me. You said you talked about the description of your role in drafting the RFP.
A.
I don't remember Craig talking to me specifically about what was said. I remember
before the deposition talking to him and speaking to him about that as part of his preparation which you had done previously with -Q. A.
Gordon? -- Gordon, that my role in drafting the RFP was limited. it. That's the only thing I remember about
Q.
When did you first find out that Gordon had testified or was going to testify at his deposition that you had recommended inserting the language comparable business entity? it was you? MR. KREIGER: Objection. That
A.
I don't remember. MR. KREIGER: Objection to the term
entity, if I heard you correctly. MR. KESTEN: MR. KREIGER: Is it enterprise? Okay. Whatever.
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MR. KESTEN: ignored.
His objection's noted and
Whatever that language, comparable
something language. Did you learn about it at around the time of Gordon Cushing's first deposition? I don't remember that, no. Do you recall talking to me about it? I don't remember when I talked to you about it. At the time of -- okay. So there's another
meeting before the lawsuit, you think? I believe so. And did you take any steps to ensure that the town would train the next set of evaluators besides telling, you claim that you told Gordon Cushing -Right. -- that they can call the Inspector General and get training? No. I did not and do not do that as part of my That's
duties unless instructed to do so. administrative work at town hall.
So that wasn't the question, whether you do it as part of your duties. The question is, did
you take any steps to ensure it happened?

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A. Q. A. Q.
I said no.
I don't do that.
So you didn't? I did not. Thank you. You had numerous communications with the Inspector General's Office throughout December, right?
A. Q. A. Q. A.
Throughout the summer? December of 2008. I had some conversations, yes. What about? They -- apparently there were two investigations initiated, or maybe they weren't initiated. There were two complaints made by, I believe Johnson Golf, and then I would call them. don't know that it went to December. I believe that I called them after the second meeting in which the second round was considered, I believe that was in January, and there was some issues about that. I Yes, there were.
Q. A.
You didn't talk to -I also talked to them about the public records thing, too.
Q.
You didn't talk to them in December about -- in

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December of 2008 about the bidding process? As part of those calls, yeah. There were --
that was what their complaints were. What were their complaints? I don't know. They were complaints made with They weren't made to me.
the Inspector General.
What were you talking to them about in December of 2008? It was about the North Hill, either ongoing or past or prospective issues about the bidding process. I have no -- I don't remember what I
talked to them about. In subsequent calls after the anonymous call that you made to the person who may or may not have been anonymous before the bidding process was stopped, in the subsequent calls did you identify yourself? I'm sorry? In the subsequent conversations did you identify yourself? Well, I think that it began by they called me and then I did call them. identified myself. Yes. I probably
I'm sure I did because by
then what we were talking about are actual

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issues related to a complaint that had been filed and issues that related to inquiries about the rebidding process that the town manager had asked me to look into. Had the town manager asked you to look into the rebidding process? No. Issues that related to the rebidding
process, to the RFP, the second RFP. Right. The rebid. So what issues had arisen
regarding that? I don't remember them. Do you remember any? Not particularly. But -Well, no. One of them, I do remember one. One
was the question of whether or not Johnson in filing the complaint had violated the process by disclosing in the complaint its bid. And who raised this issue? I don't remember who raised it. It was just an
issue raised, because I believe it was when -this was after the complaint was issued. When the complaint was received, someone could have -- I believe the complaint was sent
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to the town manager and I believe the selectmen were also aware of it and there could have been some communication. remember. Somebody raised an issue of whether Johnson Golf had done something wrong by this lawsuit? Right. By including in it the bid and whether I don't know. I don't
that tainted the process. And had you discussed this with the Inspector General's Office? Yes. Who were you talking to at that point? I don't know. You don't remember? No. Was it a man or a woman? I think I spoke to both. Or sometimes other
people in the office would make a call and then I might call back and talk to the person, depending on the information. I think my
billing records have some of the names. I remember I talked to John Craven, I do remember that, and I talked to him a number of times. There was a woman I talked to, I can't
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remember her name, about -- that was about the issue of there had been a complaint that we were withholding the first round non-pricing and price proposals and the evaluations. Okay. Did you, prior to the evaluations being
opened in January of 2009 for the second bidding process, did you ascertain whether the evaluators had gotten trained? I had been told they were going to be trained. Did you ascertain whether the evaluators had gotten trained? I didn't have any conversation about that. As you sit here today -No. I'm sorry. Let me take that back. Yes.
There was some -- I received some information, and I believe it was from Gordon Cushing, that they had been provided with some instructions. Written instructions? I don't know. I didn't ask about that. I can't
remember whether they were written or oral or whatever they were, but they were told how to fill out the form so it wouldn't happen again. Well, you mean told how to fill out the form in terms of what -- in terms of making sure they
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put in composites or in terms of making sure they actually read the requirements and followed them? I don't know what the -- I can't remember specifically what it was. I knew it was that
the town manager, I remember, was not happy that the forms were not completed in the first round as expected, and I can't remember a specific conversation but I have a vague memory that there was discussion that Gordon should -people were selected, make sure that they -- and I believe that I said that, too, that they should -- now that I'm thinking about it, they should make sure they know how to fill out the form. And you told them there was training available at the Inspector General's Office, right? Yeah. That was said, yes, at some point.
By you? Correct. Did you ever ascertain whether that happened? Yes. I just -- I ascertained that the
evaluators were told by Mr. Cushing or given something to tell them how to fill out the form.
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Q. A. Q.
I'm talking about the training -No. -- from the Inspector General's office. the question. That's
Did you ever ascertain whether
the Town of Duxbury, your client -A. Q.
Right. -- of 25 years at that point had actually gotten training from the Inspector General's Office so this wouldn't be screwed up again?
A.
No.
That was an administrative function.
wasn't asked to do that.

Q. A. Q.
I didn't ask you that question. No. But I answered.
No, you didn't. MR. GILL: That's not --
Q.
I asked you whether you ascertained whether it happened. Yes or no. Please, Len, let's not argue
MR. GILL: with the witness.
MR. KESTEN: me. MR. GILL:
The witness is arguing with
Let me finish.
Put a question
to him and he'll answer to the best of his ability.

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Q.
Did you ascertain whether or not the administrative people or someone in the town had in fact gotten training for the evaluators from the Inspector General's Office?
A. Q.
I don't remember. And what was your role with regard to the second award? What were you asked to do and by whom?
A.
The second award I did not -- I believe my best memory is that I didn't hear anything about the second award until I was told to show up at town hall. And this time there was going to be an
opening of bids and I was going to be there at the opening.

Q. A. Q. A. Q. A.
Opening of bids or evaluations? The whole thing was being done -Mr. Troy --- I believe. Mr. Troy -Let me think. that. I'm not sure. I can't remember
Q.
Mr. Troy, you are aware of the difference of opening the bids and opening the evaluations?
A.
I believe that in January there was a meeting scheduled. I don't think the evaluations had
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been opened but I don't know that. remember. I don't know.
I don't
I know that I was --
the next time I show up about this at town hall outside of this, the case has been filed and we had had meetings about that is at the -- in early January. I forget the date.
And at that time that was the meeting in which the evaluations were looked at and the proposals were looked at and the price was looked at and the town manager made a decision. The evaluations. So you were at a meeting. Who
was at this meeting? My memory is that the town manager and me and Mr. Cushing and Barbara Ripley. Were the evaluations looked at, as far as you understood it, for the first time at this meeting? I don't know. It was the first time I saw them.
Did you have any information from anyone that they had already looked at them before this meeting? I don't remember that. How about the price proposals; were those opened at the meeting or were they already opened?
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A. Q. A. Q.
No.
They were not opened.
So they were sealed at this meeting? Right. So what happened at this meeting? what? How did it work? Who looked at
A.
I think that if I remember right it was just the -- each of the bids were considered. Gordon
was primarily the person who communicated the information about the bidders and the golf, and the town manager was interested in who -- I believe this is -- as a matter of fact it went that they took the highest bid first and looked at it, and as -- because the town manager was interested in getting the most money, I forget who the highest bid was, but whoever that was was looked at. The town manager got the input. He had,
you know, some information himself but I'm not going to say he had a lot. It was primarily
from Gordon Cushing, and then a decision was made by the town manager as to whether or not he was going to bypass. That's how it went down
until it got down until the bottom two.

Q.
Now, Mr. Troy -CONTINUED DEPOSITION OF ROBERT S. TROY
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A. Q.
Not the bottom two.
The final two.
When people that were -- the information in writing provided to the people at this meeting, yourself, Mr. Cushing, Mr. MacDonald and Barbara Ripley, was the bids themselves, right? non-price proposals were there? The
A. Q. A. Q. A. Q.
I believe they were, yes. The evaluations, right? Yes. And the price proposals? Yes. And 30B, you understood at the time, requires that that's what you rely on to make the award; nothing else, right?
A. Q.
Yes. So who looked at the bids, the non-price proposals at this meeting?
A.
I believe that Mr. Cushing had looked at the bids and the town manager also had them and -but he didn't look at them in detail. Mr. Cushing had looked at the bids.
Q. A.
Before this meeting? I don't know whether he looked at them before. I don't know what had happened before.
I knew
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that -- I know when we were at the meeting he looked at them. So at the meeting Mr. Cushing was reviewing the bids themselves? Yes. Were you? I looked at them probably. I don't remember
looking at them but I could have. So you have no memory of looking at them? I remember thumbing through but I didn't know anything about the, any of really -- the complexities of the bids was something I was not familiar with, the stuff about actually running the golf course and that, I didn't know very much about that. So Mr. Troy -- well, Mr. Troy, the evaluators were civilian volunteers, right? I assume. I don't know anything about how the
volunteers were picked. I didn't ask you how they were picked. were civilian volunteers, right? I don't know if they were volunteers or what the situation was. I don't know what you mean by They
civilian either, but.

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Q. A. Q.
This wasn't -- they weren't paid for this? I don't think so. And their job was to look at these bids and evaluate them in various categories, right?
A. Q. A. Q. A. Q. A.
Correct. Did you guys do the same thing at this meeting? No. We looked at evaluations.
You didn't look at bids? The non-price proposals? Yeah. No. Except in a cursory way. No. Because
that's what the evaluators were supposed to do.

Q.
Backing up to your previous testimony before lunch, you said that the procurement officer is obligated to look at the non-price proposals?
A. Q. A. Q. A.
Right. At the evaluations and the price proposals? Right. So you're telling me you guys didn't look? You asked me about me. me. You didn't -- no. You said did I. I actually had the statute and I had the Inspector General's manual with me. I was using You said me -- excuse That's not what you
asked.
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that.
Gordon had the, to my best memory, the
stack of the proposals, and Richard had access to them and I believe he looked at them in a cursory way but not that in depth because he relied on the fact that Gordon had the expertise and the familiarity with the people involved to give him information, and he trusted what Gordon said. But Mr. Troy, who actually looked, who in this meeting actually reviewed the bids themselves? You're telling me Gordon had anecdotal knowledge or whatever knowledge. 30B envisions that the evaluators do the principal job of looking and vetting out, that's why it's all by category, at the various components. And they give a checklist, and this
is primarily what was looked at at the meeting. And you are asking me whether or not the procurement officer, instead of going by the evaluators, did he do at that time a separate and independent analysis of the bids, the non-price bids, and he did not do anything other than a cursory examination at that time. So you're testifying today that nobody in the
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town other than the three evaluators ever reviewed the non-price proposals before making -No. I'm not testifying to that.
So who did that? I don't know who did it other than what happened. Before the meeting, I do not know I don't know whether the I believe that
what had happened.
town manager had looked at them.
Gordon had looked at them, but I don't know that. You would have to ask him that. But I do know that at the meeting that they were there and they were looked at in a cursory manner. The town manager -- Gordon had
-- was very familiar with the proposals, so whether he had done that at that time or beforehand, I assume he did it beforehand. don't know. And the -- I was there trying to answer any legal questions because obviously I was not qualified to talk about the golf entities. You weren't qualified to talk about the bidding process? No. That's not what I said. I said I was not I
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qualified to talk about the golf entities. What does that mean? Well, the people who were making proposals and what their proposals were, because I knew nothing about golf and I knew nothing about the whole -- beyond a legal perspective I had no information about them. Well, in the previous -- it was the same people that bid that had bid in the previous round, right? I believe so. And you had already studied -- you had studied their non-price proposals? I had looked at them, yes. You said you reviewed them at length? I did not study them. I reviewed them is the
correct word, but I reviewed them in the context of -- what I was doing principally was looking at the evaluations, the first round evaluations. In the first round evaluations did you review the bids themselves? In a cursory manner I did. So you never actually looked at them? cursory mean? What does that mean? What does
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A.
I looked -- for instance, I think there was things like a bond was required, stuff like that, and I just looked at that section to make sure that the bond was there. And, you know, different things that were clearly -- I don't remember them right now because, you know, I haven't looked at them for awhile, but whatever was clearly required I might look at to make sure that X was there. That was -- that's all.
Q. A.
You mean -To make sure that it wasn't disqualified. Because the function of the statute as I understand it is that after the evaluators make their evaluation, that's the whole purpose of the evaluation process is to take the evaluation process or criteria away from the procurement officer and put it in the hands of people who will not make the decision.
Q. A. Q. A. Q.
Are you done? That's the evaluator's role. Are you done? Yes. So you checked the non-price proposals in the
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first round even though the evaluators had already done their thing, right? Only in a cursory manner. You were looking for things that were obvious shortcomings, right? Yes. You noted, for example, that one of the bidders had submitted an inappropriate price proposal, right, in round one? Well, I didn't -- yeah. meeting. That was noted at the
We had seen that at the meeting, that
someone had put something other than a cash price proposal. I'm asking you about -Well, I already knew that. place beforehand. The meeting took
I already knew that so I I just -- you just
didn't note that afterwards.
asked me what I did afterwards. You knew that before the meeting? No. I just said I knew at the meeting.
At the meeting someone discovered that they had put an inappropriate price proposal? I think it was Gordon. Gordon?
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A.
Gordon said this is a percentage something and we talked about it so that's not allowed. That
is not allowed under the bid specifications.

Q.
And then when you took everything in to write your memo over the weekend -- did you write this memo over the weekend?
A. Q. A. Q. A. Q. A.
Yes. You did? Yes. You worked when? I work every day. On this memo. When did you work on this memo? It was Thanksgiving. Saturday? Sunday?
I don't remember what day.
I don't have a record of when I worked Thanksgiving.

Q. A.
No, I don't know.
You didn't charge them? It's not that I didn't charge them. know what days I did it. questions. I don't
That's two different
Q. A. Q. A.
Okay. No. No?
But that would be on your bill, right?
No, it would not.
As a matter of fact because
if I do work on the weekends I inputted it the

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following business day. Well, I don't care when you input it, but are you telling me your bills wouldn't reflect you worked on Saturday or Sunday? No, they don't. The bill would reflect that you worked on Monday? Yes. So when you worked on this memo, did you review the non-price proposals? You just asked me this question. And what's your answer? I've already answered it. What's your answer? I'm not going to add to my answer. I'm not asking you to add. What did you say?
You can read back the answer. So Mr. Troy, what are you -- okay. When you
made your review of the price proposals over the Thanksgiving weekend in November of 2008 -The review of the price proposal was not ancillary, so what I was looking at to -- what I was looking at was whether or not the criteria that had been clearly established in the
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category selections by the evaluators, could that somehow be interpreted by the chief procurement officer to, in effect, make a composite overall rating. looking for. In order to do what you just said you had no need to look at non-price proposals whatsoever or the price proposals, correct? That's what you said. Really? No. So what were you looking for when you made your review of the non-price proposals? you looking at? What were No, I don't agree. That's what I was
What were you looking at?
The price proposals were just numbers, except for one which was a percentage, so that was pretty easy information to sort. This data,
which I'm referring to the data in Exhibit 10, are checkmarks. I'm not asking you about that. about non-price proposals. No. You asked me what I was looking for. I'm asking you
In the non-price proposals. No.

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Q. A. Q. A.
That's the question.
I'm limiting --
I'm going to finish my answer. Of course you are. I hope you do.
The answer is, this data was also at different categories. instance. Financial information, for
So when I looked at the checkmark by
Dixon on financial information, he has not advantageous. I might have, I don't remember
but I could have then looked at the non-price proposal issue to just kind of glean at what his finding was, what he based it on, what the finding was based on.
Q.
Bingo.
I'm with you.
I'm down.
So you were
checking that evaluations against the actual non-price proposals to ensure that the evaluators had done something that was rational? MR. COVINO:
A.
Objection.
No.
That's not what I was doing. MR. KESTEN: Please note the objection of
Mr. Covino.
A.
It's his turn. I was checking to see
I was not checking that.
if -- when I saw forms that did not have an overall rating, I was trying to understand the relationship between the information that they
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provided and the information they didn't provide. What you just said makes no sense. It has
nothing to do with what you said before. Here's my question. Just checking these
things for the composite is different from what you said. I'm sorry. Didn't you just tell me -You're --
Didn't you just tell me that when you noted that Mr. Dixon had said not advantageous financials, you then checked the non-price proposals? MR. COVINO: Objection. I didn't say I did. I
I said I could have. said I could have.
You could have done anything. I could have done anything and I don't remember what I did, but I remember that I had a cursory examination of the non-price proposals. When did you note that CALM Golf, for example, had never exhibited audited financial statements? I don't know that I even noted that. Well, this guy over here, Follansbee and his com padre here, Johnson, were drumming this since
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January 2008. checked that?
Actually, before that.
You never
MR. KREIGER:
Objection.
January 2009.
MR. FOLLANSBEE: MR. KESTEN: them before. MR. KREIGER: 2008.
2009 is correct, Art.
Well, Johnson was trashing
You referred to January
That's my objection.
Now you're talking about litigation. No. I'm talking about when did you ascertain --
well, you just said you never did. No. I didn't say I never did. I said I didn't I
remember doing that.
That's what I said. I said I didn't
didn't say I never did. remember doing that. Okay. No. Do you now know from --
Do you now remember doing it?
I said I didn't remember doing it on the day in question or the weekend in question. You're
confusing your questions and I need to make sure that -- I don't understand your questions. Okay. If you're saying did afterwards at some point in
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time after these people you just said had filed the lawsuit -Yep. -- did I then look to see whether or not what they were saying was correct or incorrect. Yep. That's a different question. Okay. Go ahead. Answer it.
At that point all of the allegations in the complaint we looked at prior to filing an answer. So, okay. So did you at that point in December
of 2008 of the year, December of the year of our Lord 2008, not Art and my Lord, did you -MR. KREIGER: Objection.
Did you then check to see whether or not CALM Golf had in fact submitted audited financial statements as required by the RFP? I did, yes. At some point I did that, yes.
In December of 2008? No, not in December 2008. That's when the lawsuit was filed. I said after the lawsuit, before filing the answer.
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Q. A. Q. A.
Yeah. That's not December 2008. When did you ascertain that? I don't know. I have no memory. I don't
remember the dates.

Q.
Why would I remember that.
Well, because you're a sentient human being with a mind.
A. Q. A. Q.
I don't remember it. Okay.
No, not that detailed.
So any time did you ascertain --
I assume at some point in 2009, yes. And at that point did you then ascertain that they also hadn't done it in the second round?
A.
Let me correct.
When I reviewed it in terms of
the complaint that was being filed, I only reviewed the second round. wasn't looking at anymore. The first round I The first round in
my view, you know, was moot. So whatever I -- what I just testified, prior to filing the answer I would have looked at the allegations regarding CALM Golf's lack of certified or whatever, the attested financial statements, and I would have looked into seeing whether that allegation was correct.
Q.
I didn't ask you what you would have done.

I'm
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trying to find out what you did. I don't remember beyond -- I don't remember what I did. Is it fair to say at sometime -- no. MR. KESTEN: letter? MR. FOLLANSBEE: It is Exhibit 11. So at some point in 2009 did you become aware that in fact CALM Golf had not submitted audited financial statements in the second round of bidding? If that were one of the allegations in the complaint, if that was an allegation that was made, I looked into it. I would have looked at It might be Exhibit 11. Where's that January 16th
whatever allegation was made and seen whether or not I believed that allegation was correct or incorrect, and then I would have weighed whatever effect it would have. Well, at what point did you recognize that, for example, Mr. Studley's evaluations were wholly incorrect with regard to financials? I don't remember. MR. EDGE: Objection.
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Q. A. Q.
Did you ever learn that? I'd have to see Mr. Studley's evaluation. Mr. Studley gave them highly advantageous on finances.
A.
I need to see the document in order to answer the question.
Q. A. Q. A. Q.
I'm asking your memory. I don't remember. You don't remember? I don't remember. Okay. So you go to this meeting in January
where people are going over these bids, right, on the evaluations, but at the meeting you're telling me your memory is that nobody looked at the non-price evaluations other than in a cursory manner?
A. Q. A.
No.
That's not what I said.
Okay. Nobody looked at non-price proposals other than everybody looked at the evaluations carefully. I believe there were three sets of them made. There was only three people at the meeting.
Q.
The non-price proposals, nobody looked at those except in a cursory manner, correct?
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A.
Correct.
Because -- nobody looked at them in a
cursory manner except that Mr. Cushing had them available and he -- my memory is that he exhibited knowledge of contents of what they were. He remembered them or had looked at them.
I don't know what he did.

Q.
So Mr. Cushing, you're saying, I'm sure he's going to disagree with you when the time comes, was reviewing the non-price proposals at that meeting and then telling what was in them? that what you're saying? Is
A.
No.
I'm saying to the extent that anybody had
knowledge of the non-price proposals, Mr. Cushing had that knowledge. I believe he
had the proposals in his hand and I believe he had knowledge of what they were. Where he had got that knowledge and when he got the knowledge, I do not know and I didn't think was important to know. He was able to
articulate in a comprehensive fashion the strengths and weaknesses of each of the people as they were being discussed, each of the entities.
Q.
Based on the non-price proposals or based on

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independent knowledge of these people? I don't know that knowledge. Well -I did not think nor did -- I don't remember the town manager saying tell me what you know independently of the proposals or what do you know. I don't remember it being that I remember it being more down to
sophisticated.
earth and more simple. What do you mean down to earth? Not a technical or legalistic. who these people are. Just, this is
This is their --
Mr. Cushing knew who the different individuals were and he also knew what their proposals were and he was able to describe them. Was he describing the proposals or was he providing information to the procurement officer in the presence of town counsel as to things about these people outside of the non-price proposals? I don't know. I don't remember. You'd have to
ask Mr. Cushing his memory.
I don't remember.
I don't know that I, that, you know, the level of knowledge that I was able to separate the
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two.
He was providing input about the golf
proposals and what the various proposals had. Proposals? Right. That's what we were reviewing. It was It
not a session we were talking about people. was a session in which we were reviewing. The proposals only? The proposals. That was my question. You're only reviewing
proposals themselves, not any other knowledge? No. I'm not saying -- to the extent he had
knowledge, I don't know what knowledge he gleaned from the proposals and what knowledge he gleaned otherwise. It appeared that he was just
talking about the proposals. The proposals? My memory of it, yes. I don't remember anything
else being talked about. When did you advise Mr. Cushing and Mr. MacDonald that it would be illegal to consider anything outside the proposals? I think we talked about that when we got the bankruptcy information. That it would be illegal to consider anything
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outside the proposals, right? that issue?
You discussed
That was discussed back earlier when I think that Mr. Cushing had got a communication about the -- not CALM but whatever the other company was, that they were in bankruptcy. So everyone knew it, you knew it, and you made sure that they knew that they were not allowed to consider anything except what's in the proposals? Yeah. And I think that's in the -- that's in
the manual of the Inspector General. Oh. It's the law, yeah. So all Mr. Cushing was telling you as you understood it was what he had gleaned from the proposals themselves? I don't remember him saying anything other than what the proposals -- I just -- that's all I remember. So -I don't remember a lot of what was said except to the extent that when I took down notes, you know, I then used as a basis for the award draft.
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Q. A. Q.
The fictitious letter? I'm sorry? The fictitious letter that says over Mr. MacDonald's signature that he reviewed the non-price proposals and ascertained from them that CALM Golf --
A.
No.
I don't think -- I wouldn't call it a
fictitious letter.
Q. A.
Well, it says that, right? I sent Mr. MacDonald a draft of the proposed award for him to review. talked. He reviewed it, we
He didn't tell me anything that was I didn't know that he didn't review
contrary. it.
Q. A.
You were there. No. No. I did not know that Mr. MacDonald had
not reviewed it in the timeframe other than when I was there.

Q.
You believe that Mr. MacDonald had reviewed non-price proposals in detail before this meeting?
A.
I had no idea what Mr. -- there was no conversation about that. I don't know what he
did or what he did not do, but I did know that

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he had access to them and that he approved the language that was drafted. Every single thing that was ever sent to Mr. MacDonald, Mr. MacDonald saw beforehand, and everything he discussed, and there were changes made sometimes. If he was satisfied --
Mr. MacDonald is someone who reads everything. There's -- I understand that Mr. MacDonald signed the fake letter, but you drafted it? It's not a fake letter. characterization. I disagree with that
That's your characterization.
When you were at this meeting Mr. MacDonald did not examine the non-price proposals, right? No. I didn't say that. That's not what I said.
What did you say? I said that Mr. MacDonald did examine the non-price proposals in a cursory fashion. In a cursory fashion? Right. And was it based on that cursory -And I believe Mr. MacDonald said that, also. Was it based on that cursory review of the non-price proposals at this meeting with you present that you drafted the language that, I
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have reviewed these proposals and am satisfied that CALM Golf has assets and finances to run this place? I don't know that that is what was said. mean, I don't know. But, I
I need to see the document.
If you can refer to me anything that I drafted. Did you ever -- did you put the language about his review of the non-price proposals in? Was
that your draft, or did he amend it and add that? No. That was -- I don't -- once again you are
using language that I don't know that is correct. It's called English. It's called what? English. I don't -- no. I'm not talking about the I'm talking about
structure of the sentence.
I'm not sure that you are correctly replicating the language in the document. There's no language. I'm talking about his
description of his review of the non-price proposals. Was that something that you drafted?
I drafted the -- if your question is did I draft

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the document that he signed. No. That's not my question. Listen to my
question.
My question is, that portion of the
document that he eventually signed which describes his review of the non-price proposals, did you draft that? The answer is yes. The document that I drafted
for Mr. MacDonald, he reviewed it and he suggested no changes. So it went out as you drafted it? As I drafted it, correct. Okay. It went -- no. It went out from his office.
As you drafted it? After I drafted it and then he reviewed it and had it placed on his stationary and he then signed it. I don't know what you're talking about. wrote the thing. you recall? That's correct. You based your understanding that he had reviewed the non-price proposals on what? I based it on the fact that I was at the
You
He made no changes as far as
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meeting, he had appeared to have information about the proposals. And he also asked Gordon a
lot of questions about the proposals and he received information from Gordon about them, including information about whether -- I specifically remember there at the end of the meeting there was conversation between Mr. MacDonald and Mr. Cushing on something to the effect of I know Johnson can run the course but CALM has offered more money. Can -- are you
sure, Gordon, that CALM can run this course if I give them the award. Okay. Thanks. Did Gordon say -- what's that got to do with reviewing the non-price proposals? My And I do remember that.
question to you is, what did you base the letter that you drafted, what did you base your statement about MacDonald's review of the non-price proposals? I based -What you told me right now is he asked Cushing questions and Cushing answered. That's not
review of the non-price proposals. No. Mr. MacDonald showed familiarity with the
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different proposals.
He seemed -- I did not say
to him have you read them, when did you read them. That was not my place to do so. He also
asked Gordon questions about it and it was very clear that Gordon was very, very familiar with the non-price proposals. And to the extent that either Mr. MacDonald had looked at them himself or had discussed them with Gordon or he was relying on Gordon to review the non-price proposals, I don't know that, but it appeared that he was familiar with the non-price proposals. Now, these notes you took at this meeting, where might they be? What does that mean? Where are they? I have no idea where they are. I have no idea.
I assume they're in the wastebasket. You threw them out? I don't keep any notes after I do a document. That's it. This document, Exhibit 4 is it, you destroyed your notes? I don't destroy my notes. I did as I do every
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document when I complete a document. You destroyed your notes? No. I save the document and then I send it.
What do you do with the notes? I put them in the wastebasket. What do you expect will happen? That's different. I don't know what happens to They go to the
them after the wastebasket. dump, I guess. Right. So they're gone?
They're gone for sure.
Whether they're
destroyed, I don't know. Good point. somewhere. find them. Yes. Tell me something, what was your understanding of the equipment that CALM Golf had? I need to see the document. directing my attention to? On the bottom. It's underlined. What are you They may still be decomposing If we dig up the dump maybe we'll
The equipment would be whatever equipment was included in the proposal. In the non-price proposal, right?
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A. Q. A. Q. A. Q.
Yes. Which was none? I don't know. Yes, you do. No, I do not. You've done lots of work about this. written memos about this. You've
A.
Right.
But I do not know what are the
components of the list of equipment that they had.

Q. A.
No.
I don't remember that.
They had no equipment. They didn't have any equipment, no. They had a
list of equipment and a letter of credit which said they can procure the equipment.
Q.
There you go.
So you based this language that
they had adequate equipment on the basis that they could buy it? MR. EDGE:
A. Q. A. Q. A.
Objection.
They weren't going to buy it. They weren't going to buy it? No. If they got the bid they'd buy it? No. I believe the documentation was that they
were leasing it.

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Q. A.
When? Whenever. details. I don't know. I know -I don't have the
Q.
What did they get a letter of credit for if they were leasing it?
A.
To show they were -- they had the money available to get the money to get the equipment. I assume a lease requires some money.
Q. A. Q. A. Q. A.
I thought you said they were already leasing. They what? I thought you said they were already leasing. No. I didn't say that.
They were going to lease it? My memory is, and this is just my memory without looking at documents, is that there was a list of equipment and there was a letter of credit saying that they could lease the equipment.
Q. A.
But at the time they had no equipment? They didn't, no. They didn't have the -- they
didn't buy the equipment or lease the equipment before they got the award. so.
Q.
No.
I don't think
Okay.
So when you wrote they had the equipment,
what you meant to write was they will get it

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someday? MR. EDGE: Objection.
Well, it says satisfied the criteria, the experience, the organizational capability, the maintenance equipment and staff and sufficient financial information. Yes.
They -- when they -- when you use the term staff, they obviously hadn't hired people to run something they hadn't gotten the award for. There must have been a list of some people
that they were going to have and the -You checked that? I had not checked it but I assume that just looking at that statement, that the idea when you put a bid in is that you have certain people, that you're going to have a golf pro, stuff like that, that you don't hire the person thinking of opening it. get them. Mr. Troy, had you checked the non-price proposals to ascertain whether any of these statements were actually true? No. The evaluators -- I relied on the You're going to
evaluators' findings and I placed a cursory

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review of the non-price as was needed to write this. MR. GILL: lunch. We've been going an hour since
Why don't we take a short break. I will bring to your attention, though,
you had indicated you would have three hours. You've been going three hours. Hopefully we'll
be coming to an end so the others will have a chance to ask questions before the end of the day. MR. KESTEN: I will finish my questioning
when I finish my questioning. MR. GILL: We had advised everybody by
e-mail and had asked everybody how long they were going to be. If they weren't going to be
done today, we were going to get a limine order. MR. KESTEN: anyway. MR. GILL: Based on the fact that you all We're going to go to court
said you were going to be done, we did not do that. So I am putting you all on notice. MR. KESTEN: MR. JOHNSON: buddy?
We got your e-mails. Are you the judge here,
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MR. KESTEN:
Stop.
Knock it off.
It's
appropriate for him to say that. MR. EDGE: I'd also like to point out we
are a defendant in this case and we have the opportunity to question. This questioning is
not relevant to this case and this is essentially questioning for the other case, so -MR. GILL: MR. EDGE: We are not a party. -- we would like to proceed
with our questions today based on the fact that we are a defendant in this case. not. MR. GILL: party. I hear you. We are not a Bob Troy is
This is up to you lawyers who are the So we'll I
parties in the case to work it out.
leave for a second and let you do that. understand what you're saying. MR. EDGE: Okay.
(Recess taken.)
(Exhibits No. 26 & 27 ID marked.) Mr. Troy, so the letter goes out, the award
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letter, second lawsuit's filed. No. The second lawsuit -- the first lawsuit was The amended complaint, yes.
filed, right.
You went to a hearing on the motion in limine for the injunction, correct? Yes. And who did you bring with you from the town? I believe Mr. Cushing and Mr. MacDonald. And Judge Smith issued his opinion on February 2nd? He did. He did. I don't know the date, but. And you said earlier today that you Yes?
then wrote a memorandum to the town about your understanding of the opinion? I -- yeah. I sent the -- whenever the order I think there was a --
came in I sent that up.
there could have been an executive session, I don't have a date, after that with the selectmen. And some point in either February or
March I sent a letter to the selectmen in which I talked about certain aspects of Judge Smith's. What did you say? I don't remember. Anything at all? Do you remember anything about
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this? It was about the injunction and about -- I do know that it made note of the fact that the judge had made the finding that there was a likelihood of success in the merits on certain aspects of the plaintiff's complaint. So -It might have been a motion for reconsideration. I'm not sure. There was something that happened
after, between January and February, but I don't remember what it was. Well -But I had to write -- I wrote something. To the selectmen? Huh? To the selectmen? Yes. And the town manager.
You think it was a letter? It was a letter. Analyzing this thing? Well, yeah. The letter had some analysis in it.
When's the last time you saw this letter? Sometime not too long ago. I don't remember.
Somebody, actually one of the lawyers had found

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it. Where? In the file in the computer. he found them. I don't know where
Somebody just -- I think there
was some discussion about what I had said and about, there had been some allegation that the selectmen weren't told such and such, and one of the lawyers in my office said, well, remember this, and I saw it. Is this something that you gave to me on April 13th in that file? That's -- to the best of my knowledge you were given everything in the file. Right. But I don't have any such letter.
I don't know. But you believe this finding by somebody in your office, was that more recent than April 13th? It was sent to town hall. When? When it was brought to my attention. more recently, yes. Yeah. It was
But whatever I sent,
town hall also has copies of everything that was sent to them. Not my question, Mr. Troy. My question is, I'm
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trying to ascertain whether you believe that the letter that you're now telling me about is residing in the paper file that you brought to me after the town instructed you to give me all the documents in this case. Yeah, I believe it is. You believe it's there? Yes, I do. So whoever in your office finds it on -- they found it in a paper file? No. It wasn't a paper file. No. Somebody
found it.
I don't know how they found it.
Someone found something that contradicted an allegation that had been made and brought it to my attention. You had just testified that the thing they found was a letter that you wrote January or February or March of 2009 -Right. -- in which you told the selectmen and Mr. MacDonald, you gave some analysis of Judge Smith's opinion? Yes. Okay. And did they find this letter on paper
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format? I don't know where it was found. paper copy of it. it. Who gave it to you? It was either Eric McKenna or Craig Jordan, one or the other. Where is Craig? Jordan is in Rio de Janeiro. Permanently? I have no idea. He's expected to come back but I was given a
I don't know how they found
I don't know when he's coming back. Where is he from? Where is his family?
He's from Sandwich. Sandwich. They are. And they're in Sandwich? They are. What are their names? Scott Jordan, and I believe it's Sally Jordan. He's expected to come back? He's expected to. He got married and he's Are his parents living?
waiting approval from Immigration for his wife to come back.

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Q.
Cool. You testified this morning that there was an executive session after the injunction came sometime in February or March?
A.
I believe there was. to that now.
I thought I just testified
I don't remember doing it this I believe there was
morning but I could have. an executive session, yes.

Q. A.
To discuss this litigation? In which it was discussed, but I don't remember. I don't have -- I just remember that around the time of the beginning of litigation there was some type of -- it could have even been in December. From the time that suit was filed up
until the injunction was issued and maybe thereafter I believe there was an executive session.
Q.
As of February of -- as of March 1st of 2009 had anybody associated with the Town of Duxbury, employees or public officials, ever provided you any information that they didn't want Johnson Golf to get this contract?
A.
No.
They didn't want Johnson to get the No. Nobody ever said that, no.
contract?
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Q. A.
Some people were upset about the injunction? Exactly. Let's put it this way. From the time
the lawsuit was filed.
The people in the town
almost without exception were expressive of the idea that the lawsuit should be defended, that it was more about the lawsuit, and that there was some anger and resentment towards Johnson Golf.
Q. A.
Expressed by whom? Expressed in varying degrees by almost everybody who was involved in it.
Q.
Is it true that you were -- that you advised the town as led by Mr. MacDonald in 2009 after the injunction issued that in your opinion the judge was wrong?
A.
I do not remember giving any specific advice. remember at that time at the beginning suggesting that it was better to live with the injunction. There was some issue about that,
whether the injunction should be appealed to work out something with Johnson for that year, that season, so that the golf course stayed open. I believe certain aspects of the judge's
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order were open to question, but I did not encourage the selectmen to appeal the injunction. That wasn't the question. The question I have
for you is, isn't it true that you told the selectmen and Mr. MacDonald that the judge was wrong in the law? No. I wouldn't say that.
What did you tell them? I don't remember what I said. I have no memory
of any of the countless executive sessions we had. I don't remember what I said.
I'm not asking you about the executive sessions. I'm asking you about the advice you gave your client. lawsuit? What did you tell them about the Are you going to win, are you going to What did you tell
lose, how would it turn out. them?
As I said, I documented a number of issues. selectmen were -- or at least I provided the town manager and presumably the selectmen on them. And beyond that I don't recall any
The
specific advice one way or the other. The injunction was issued. My
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instructions from the town manager, and to the extent the selectmen were involved, were to continue to pursue the defense of the case, and that's what I did. And you never gave them any advice on what you thought the strengths or the weaknesses of the case was? No. There is no question that there are a
number of strengths and weaknesses to every case, and this case is no exception. And to the
extent that we discussed those, in this case as in every case I advised the selectmen of what the strengths and weaknesses were. So did you tell them if they were -- whether they were likely to win or lose this case? No. I've never done that in any case.
You told me. I did not tell you anything of the sort. Okay. Did you have any role -- strike that. Prior to 2008 had you had any lawsuits filed on behalf -- filed against the town that were referred to the insurer? Did -- I'm -Prior to December of 2008.
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A. Q.
Right. Had you been town counsel in lawsuits where they were referred to the insurer?
A. Q. A.
Yes. Did you have any role in not referring this one? I had no role in referring the case. not my responsibility. That was
Q. A. Q. A. Q. A. Q. A.
You had no role there? In referring this case? In not referring this one in December. No, absolutely not. How about in referring it? No. Two years later you had no role? Two years later I made an inquiry as to why the insurance company, which I understood wasn't going to get involved in the injunctive part of the case, why they had not entered an appearance, and the town manager said he would check. And he subsequently notified me that
they had sent in and he sent me back the reservation of rights letter.
Q.
Where did you gain the understanding that the insurance company was not getting involved when
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the case was first filed? No. My understanding was that the insurance
policy did not provide coverage for the issues that related to litigating an injunctive order. So you just knew that from your knowledge of insurance law? No. I knew that from my general knowledge. But
actually, Mr. MacKinnon confirmed that to Mr. MacDonald and me. Two years later? Yes. Two years before did you understand that? At
that point was that your state of knowledge, that the insurance company would not provide a defense of this case? No. I assumed that the insurance company had I assumed in this case and every
been notified.
other case, all the cases that we had with the insurance counsel, that notification's almost routinely given as soon as the complaint is filed. So what triggered -- what piqued your interest in the fall of 2010? Because it appeared in the fall of -- not the
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fall of 2010 but late 2010 when we had filed the appeal at appeals court, I believed then it was likely the injunction would be dissolved. And as part of that I said to the town manager why has the insurance company not sent anybody or have you received anything. some inquiry about the paperwork. And I made
subsequently I received a notification back from Maya, whatever it is, that there was a reservation of rights sometime, I believe, January. So you --- okay. Now -MR. GILL: It's three o'clock. It seems Got it. Got your story.
to me the questions you're asking have nothing to do with this case. the other case. So in 2011 in December you and I appeared in front of the board of selectmen, right? I don't know. We could have. They only have to do with
You don't remember this? I don't remember any -- I don't remember the date. I remember appearing at the selectmen,
yes, but I don't remember the date.

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Q.
What do you remember happening when you and I appeared in front of the selectmen?
A. Q. A.
What do I remember happening? Yeah. I remember a lengthy communication from Mr. Dahlen and I remember you speaking. And
other than that, I don't remember anything.

Q.
Do you remember that I was suggesting that maybe the case should be settled?
A. Q.
No. Do you remember that you were saying that the case was strong?
A.
I don't remember saying that, but I certainly think that the town had a reasonably cogent presentation that, you know, it could make. certainly did, yeah. It
Q. A. Q. A. Q. A. Q.
A cogent presentation? Yeah. A cogent defense.
And you were advocating not settling? No. No? No. Let me show you what I've marked as Exhibit Number 26.
I was not advocating that.
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MR. KREIGER: All right.
What is it?
Is it this?
I'm familiar with that.
Why did you prepare this? I actually did not prepare this. Let me guess. The kid from Rio de Janeiro?
Mr. Jordan did it, I believe. Did you look at it? Sure. Did you agree with it? It wasn't a matter of agreeing with it. This
memo was generated because Mr. Dahlen made a phone call requesting the memo. How many years out of law school is Craig Jordan? I don't know. Three. I'm guessing.
Mr. Dahlen, the chair of the board of selectmen, asked you to prepare a memo about this case after the meeting you and I had with the board and you had Craig Jordan do it? He helped me do it, yes. He helped you do it? He actually did the memo. He wrote the memo. I
might have made some, you know, grammatical corrections.

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Q. A. Q.
And then you signed it? And I signed it. No question. No question.
That's like -- okay. These aren't
So let's look at it. numbered but the third page.

A. Q.
All right. I take it you provided the information about the phone call to John Craven to Mr. Jordan?
A. Q. A. Q. A.
No. You didn't provide this information? No. Did he make this phone call? No. He prepared this information based on, you
know, merely what would have been in the file. I don't know what he -- I didn't give him -- he didn't ask me anything about any material.
Q.
So you signed a memo to Mr. Dahlen indicating that you made a phone call, spoke with John Craven, talked about a lengthy -- you had a lengthy dialogue, and you gave him none of this information? somewhere? oath? Jordan just got it out of
That's what you're telling me under
A.
No.
He would have got the information from the

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documents in the file.
As a matter of fact I
think there was a -- I think there was -- this was -- this information was contained in the court transcript and Judge Smith was given this information in 2009. Really? Yes. So you think he got this from a court transcript? You didn't tell him any of this? He pretty much
I don't know where he got it. put together the memo based -MR. GILL: something. know. No, I don't know. But it's true, right? What is true?
If you know you've got to say
If you don't know, say you don't
That on December 15, 2009 following the town's decision to reject all the bids town counsel contacted John Craven. here is true. All the stuff written in
That happened, right? I believe that
I assume that it's true, yes. it's true.
Well, it's your life, not mine.

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A. Q. A.
Right. You did it. Right. On December 15th I -- either I or
somebody from the office, I'm not sure who, began a dialogue with John Craven. of fact, on the 15th I believe. As a matter
I believe that
prior to that John Craven had called me, but on the 15th I spoke to John Craven, yes.
Q. A. Q. A.
It's coming back to you? It was a lengthy dialogue. So it's now coming back to you? I know that from mid December through January 2009 John Craven and I had a number of conversations.
Q.
That's not the question.
The question is about
this conversation which is written about in detail which apparently is flowing back to you, Bob.
A.
You remember it now? Remembering -- I'm sorry. MR. GILL: There's no question to you.
No.
Let's put a question to him.

Q.
Do you now remember a lengthy conversation with John Craven on December 15, 2009? MR. FOLLANSBEE: I think that's a typo.
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It's 2008. MR. KESTEN: 2008, yeah.
I remember a lengthy dialogue with John Craven during December and January, December 2008 and January 2009. conversation. And dialogue was not -- a It was a series of conversations.
All with John Craven? A lot of them were. Not all with John Craven,
but a lot of them were. And ultimately they confirmed that you had done the right thing in rejecting the bids? By letter. But hadn't they advised you to reject the bids? Hadn't they, I'm sorry? Advised you to reject the bids. No. I told you what they had done. They had
said -- they had given the requirements of the law. They thought that the law had met -- they
said you could proceed but if you did there would be problems with respect to appeals by a number of the bidders. Was that John Craven you talked to in this first conversation that he talked to you about that, yet this conversation is not mentioned in this
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memo? I don't know that. I need to check. I don't But I will
know who I talked to the first time.
say this, that I talked to John Craven and I did speak with other people, too, in the Inspector General's Office. did, too. Do you know of any reason that first conversation didn't make it into the memo? I had no idea. MR. GILL: do you have? MR. KESTEN: MR. GILL: I don't know. It's now 3:10. How much more And other people in my office
Can you give me an estimate? 25 minutes tops. Less.
MR. KESTEN: MR. GILL:
Is that going to leave you
with enough time, Mr. Edge? MR. EDGE: I can't guarantee that. I'm
going to object to any further questioning other than that. This is irrelevant questioning to
the matter at hand. MR. KREIGER: Can I -- David, I have no
idea why you're saying this questioning is irrelevant. This is not about the other case.
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This is about the bidding process in this case. And I will also say this. There is no
basis for anybody to treat four o'clock as a deadline, the deadline that was unilaterally proposed by Mr. Troy's counsel that we finish today. There's no deadline at four o'clock. MR. KESTEN: MR. GILL: Correct.
In my judgment most of the
questions that Mr. Kesten has put to the witness, not all, but most of the questions and most of the time has been taken up, not with -not dealing with that case but with issues with regard to the other case. appropriate. That's not We're not a
We've tolerated it.
party to this case.
So let's move it along so
we can be done, please. (By Mr. Kesten) What triggered the town's -- in your -- as you understood it, the town's decision to revoke CALM Golf in the fall of 2010? The injunction had been lifted for a period of time. At that point the town manager was And so
contemplating what would be done next.
the first order of business that he decided was

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appropriate was to bring CALM Golf in and to see whether they're ready to go, and I've already talked about that. That's what it was? Following, he directed that he -- to then see -and actually, Judge Smith at this time had also said that the town could go out to rebid. had been talk about rebidding. Judge Smith said he wasn't going to prevent the town from doing that, and the town manager asked me to check with the Inspector General as to whether or not we could do that legally, and I did. And the Inspector General said that we could, and at that point then there was a meeting held with the Inspector General, and then there was a -- it went out. It was recommended by the Inspector General an IFB be utilized instead of an RFP. Mr. Lambiase had been trained in the meantime, and he then took over the responsibilities of the procurement and he worked with the Inspector General's office. MR. KESTEN: You know I didn't ask him There
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any of that.
You understand to the time issue,
a lot of it is because your client wants to talk. MR. GILL: He's doing the best he can to
answer your question. MR. KESTEN: triggered it. process. THE WITNESS: issue. MR. GILL: answer is. one. MR. KESTEN: No, he's not. He's telling you what the I thought that was the The question was what
He's going on about the whole
Ask another question if you have
So why was the injunction lifted? Well, the injunction was lifted because Judge Smith -- the town had moved to have it lifted because the bond had not been posted. And then they fixed it, right? They did, and then the injunction was put back in effect. Right. And -- okay. In terms of the invitation
for bid, whose idea was it to put in the language calling for a ten-day termination?
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A.
That was an administrative meeting with the town manager and I believe Betsy Sullivan. It was
said that the town should not have to go through this again, and I was asked to get language to tighten up the process by which the town could take its land back, take possession of its land back. And in response to that I drafted language that had certain components in it which included that one which was sent to the Inspector General by Mr. Lambiase.
Q. A.
So it was Ms. Sullivan's idea? I believe it was Ms. Sullivan's idea that it should be tightened up.
Q.
Tightened up.
And so, and then you drafted the
language that said they can't go to court and they couldn't challenge any decisions?
A.
I drafted and sent it to town hall.
I sent it
to Mr. Lambiase who in turn, I believe, sent it to the Inspector General.

Q. A.
And you believe that's legal? Yeah. I believe that the town has the right.
And as a matter of fact in a previous -MR. GILL: Just yes or no.
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A. Q.
Yes.
Okay.
Yes.
Thank you. Let me show you what I've marked as Exhibit 27. What is that?
A. Q. A.
What is it? What is that? It appears to be a draft affidavit of the town manager.
Q. A. Q.
Who prepared it? I did not but somebody from my office did. Somebody from your office did. What was used to prepare this? Based on what?
A.
They used whatever documentation was in the file.
Q. A.
Did you review this? I don't know that this affidavit was filed, but -- and I don't know. though, yes. I would have reviewed it,
Q.
Now, Mr. Troy, did you represent Mr. MacDonald at his first deposition?
A. Q.
I did. And you were there when Mr. MacDonald testified that he didn't remember any of this stuff?
A.
I did, yes.
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Q.
And why would you suggest that he file this affidavit now remembering things four years later? MR. GILL: filed. MR. KESTEN: that it be filed. MR. GILL: I'm going to object to the I said why would you suggest I think he testified it wasn't
question because there's no predicate that he did suggest it was filed.

Q. A.
Go ahead. I'm not saying that I did suggest that. Mr. MacDonald at the time of the first deposition was unable to answer the questions because he had not reviewed any documents. Subsequent to that he had reviewed documents and indeed had seen a lot of the memorandum and everything that I had written. So to the extent that he hadn't, I believe he had information after this first deposition which he gleaned and learned from his review of the documentation.
Q.
Could you please look at paragraph 12.
Did you
ever -- did Mr. MacDonald ever tell you that he

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remembered this? That Mr. MacDonald remembered it? Yeah. He received the letter. Upon rejection of all bids town counsel contacted the office of the Inspector General after they were rejected, right? Yes. The town manager had -- actually was
aware, and we discussed throughout December of 2008 that I was talking with the Inspector General. Did you tell the town manager that you had actually talked to them before the bids were rejected? Yes. That didn't make it into the affidavit. It wasn't pertinent. Why didn't you file it? I have no idea why. I don't know what this was,
part of some pleading that -Mr. Troy, do you recall that I told you not to file it because Mr. MacDonald would be lying if he signed it? No. I don't recall that at all.
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Q. A. Q.
I do. You can testify to that. I will. He thanked me. Hang on a second. Hang on one moment.
MR. KREIGER: MR. KESTEN:
(Discussion off the record.)

Q.
Mr. Troy, on either day one of the deposition or day two of the deposition, are you taking any medications or any medicines or is there any other reason why your memory would be affected?
A.
Well, I'm taking medication. affect my memory.
I hope it doesn't
Q.
Are you taking any medication which may have affected your memory?
A.
I have no idea.
I don't know what -- I know
what my medication is but I don't know whether it affected my memory.

Q.
What medication have you taken today that you are still under the effect of?
A. Q. A. Q. A.
I take the same medicine every day. What is it? Crestor. What is that? It's cholesterol.
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Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.
Cholesterol. No.
That's it?
Hydrochlorothiazide.
What is that for? Diarrhetic. Anything else? Atenolol. What's that? A beta blocker. Anything else? Lisinopril. What is that? I don't know. What's it for? Blood pressure. Blood pressure. No. MR. KESTEN: not reserving. Okay. And I am reserve -Anything else?
I am going to go to court to
compel the answers to the attorney-client questions, and if we get any more documents that Mr. Troy has still not given the town, this is a repeated request noted. MR. GILL: So I'm going to object to
you're asking questions if you're moving up to

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do that. MR. KREIGER: MR. GILL: I am and you can.
And I will save you the
trouble and say we're not going to answer them. It's Mr. Edge's turn as far as we're concerned.
EXAMINATION BY MR. KREIGER: Mr. Troy, I just want to ask you about one topic. At the beginning of your questioning by
Mr. Kesten in response to a question about your deposition preparation you said that you had been prepared by him and you also said you had -- in that answer that you had been prepared by me. Do you recall that answer? I do. When do you believe I prepared you for your deposition? When I was at your office during the several occasions I was there you told me you were going to prepare me for the deposition. You asked me
to give the information that I gave you, and I gave it to you freely understanding that you were going to be representing me.
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And I even went to the point of telling you that -MR. GILL: privileged -THE WITNESS: MR. GILL: anything else? When were those meetings in my office? I don't recall the date. with me. Are you referring to the date in April when you and Craig Jordan brought up the files? Yes. April 25th and 26th? I don't know the dates. with me. Any other dates? I believe that I was at your office three times or four times. dates. The second two times, the third and fourth times were with Mr. Gill and others? MR. GILL: I'm going to interrupt here. I'm not sure. I don't have the I don't have the dates I don't have the date Okay. Do you have Let's not get into the
-- communication.
There is no relevance.
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MR. KREIGER:
He has testified in this I'm cross
deposition that I prepared him. examining him on that testimony. MR. GILL:
Why is that relevant to any
issue in this case? MR. KREIGER: It's relevant -- you know,
I don't even have to answer that. MR. GILL: We're not going to answer I'm
questions unless you give an explanation. trying to be reasonable but I can't be reasonable without an explanation. MR. KREIGER:
The relevance to this case
is his understanding my role as town counsel, his role as now former town counsel but then town counsel and witness in this case. MR. GILL: Why is that relevant to any
claims made by Johnson? MR. KREIGER: It's relevant. His role in I
the case is relevant to the town's liability. am defending the town. MR. GILL: What the conversations were
between you and the town are, it seems to be in no way relevant to the Johnson Golf course claim against the town.
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Obviously we know there are relevant other issues pending between you and your client and Mr. Troy, but they're not in this case so we're not going to do it in this case. MR. KREIGER: MR. GILL: Okay. I'm responding to --
The second point is that Len He
represents the same client that you have. asked the questions. about this before.
We had a conversation
I do not think that the town
has the right to have two lawyers ask questions of the same witness in the same deposition. That's particularly true when you were sent out e-mails to all of you folks asking how long you were going to be. You didn't
communicate that you were going to take any time, so it seems to me that the fact that you changed your mind since we filed our motions is pretty good proof that these questions are asked, not having to do with this case, but to have to do with the other issues. MR. KREIGER: I'm not even going to
respond to any of that. MR. GILL: If you have any questions that
go to the merits of the Johnson Golf case, ask

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them, but I want to ask you how long it's going to take because Mr. Edge has indicated he's got questions and he's entitled to ask them. MR. KREIGER: been done by now. MR. GILL: My questions would have
My questions -So you've got less than five
minutes worth of questions? MR. KREIGER: Yes, which I told Mr. Edge.
I told him I have five to ten minutes. MR. GILL: You didn't tell me. I understand that.
MR. KREIGER:
(By Mr. Kreiger) Do you recall that the third and fourth times you were in my office you were with Mr. Gill and/or others? I believe so. We didn't do any deposition preparation those days, right? No. no. But you didn't answer any questions? No. We didn't have a substantiative discussion about the case, right? You're correct.
Well, except that you asked questions, but
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Q. A. Q.
About the depositions? Yes, you are. Those are the four times you were ever at my office, correct?
A. Q.
That's correct. The first of those four times was the first time you and I had ever met?
A. Q.
Yes, it is. I believe it was the first time we had ever spoken?
A. Q.
I believe so. Or communicated? All right. Okay. And have
you ever received any written indication of an attorney-client relationship between us? MR. GILL: end. MR. KREIGER: don't. Either instruct him or I'm going to put this to an
I don't want another speech. MR. GILL: I'm going to give one. Then do it. I know why.
MR. KREIGER:
You said it six times. MR. GILL: too. No. I have another reason,
You know the answers to these questions
because the communications were between the two

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of you. MR. KREIGER: Any lawyer at a deposition
is entitled to get the witness' testimony even though the lawyer knows the answer. MR. GILL: this case. This has nothing to do with
I'm going to instruct him not to You will be able to ask
answer in this case.
him about all of these at a properly noticed deposition in the other case at an appropriate time. MR. KREIGER: You've also moved to
disqualify him in the other case and that, coupled with the tactic of not letting him answer in this case is an attempt to deprive the town of the ability to get Mr. Troy's deposition. Either instruct him -If you'd like to talk about
MR. GILL:
how you can depose him in the other case, you have not approached me about that at all. I'm
instructing him not to answer that question in this case now today. MR. KREIGER: MR. GILL: All right.
It is now 3:30. Bob, we would have been
MR. KREIGER:
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done long ago. and blaming us.
You're taking up David's time Just cut it out. Let me just
ask that question again so it's clean and you can instruct him. (By Mr. Kreiger) Do you have any written indication from me, and by that I mean a letter or e-mail, of an attorney-client relationship between us? MR. GILL: Objection. It calls for, I
think, privileged information and judgments of law, so I'm going to instruct him not to answer. MR. KREIGER: Okay. Thank you.
EXAMINATION BY MR. EDGE: Mr. Troy, you've testified quite a bit today about the steps you took during the Johnson Golf litigation, advice you gave to your client, the town. Is it fair to say that everything you've testified to today refers to acts you did on behalf of the Town of Duxbury? As opposed to what? question.
I don't understand the
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Q.
Did you do it in a role as a representative of the Town of Duxbury, everything you have testified about today? MR. GILL: the town counsel? Did he do it in his role as
Q.
Did you do it in the role as a representative for the Town of Duxbury?
A.
Yes.
I don't know that I'm a representative of I represent the Town of
the Town of Duxbury.
Duxbury, or I did represent the Town of Duxbury.

Q. A. Q.
So you represented them? For 27 years. But you might not be a representative of them; is this what you're telling me?
A.
I'm familiar with the term representative. don't understand what you -- that means.
Q.
Did you do this in regard to your role as town counsel?
A. Q.
Absolutely. Okay. You were obtained by the Town of Duxbury
to act as their town counsel?

A. Q.
Yes. When you gave advice regarding what they should or should not do in this case, were you doing it
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on behalf of them as their town counsel? I was doing it on behalf of the town. Is it your understanding they took steps based on your advice due to the fact that you were their town counsel? Some of the steps they took because I gave them advice. own. Some of the steps they did on their
In everything that I did I was town
counsel. Very good. As opposed to having a private role. have -You had no private role in this matter whatsoever? No. No. In the fall of 2010 I didn't
In November of -- sorry.
you testified there was a meeting held at town hall? Yes. At which you were present, I was present and a lot of other people were present, correct? Yes. At that meeting you had testified that representatives of CALM Golf were asked whether
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they were prepared to run the golf course at that time? Right. And it is your testimony that subsequent to that meeting, that Richard MacDonald decided that he was not satisfied that CALM Golf was capable of running the golf course; is that correct? Immediately after the meeting. And at that meeting had he instructed you at that time whether to ask the Inspector General whether it was appropriate to rebid the contract? I think that that had been talked about before that, too. But after the meeting he then said
that -- my memory is something to the effect is we have got to do it over and we've got to do it right. You said that prior to that there was some discussion of rebidding the contract. that refer to? I think that in -- before in court that we had told -- I'm not sure whether it was before. can't say. I shouldn't say. I What does
Prior -- around
that time -- my memory of the calendar is not

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good. It was either before that or after that we told the Court this is what we're planning on doing, we're planning on rebidding. have been after. when it was. The town awarded the contract in January thereabouts of 2009; is that correct? Yes. Between January 2009 and that meeting in the fall of 2010, were there any discussions that you were privy to regarding the possibility of rebidding the contract? Yes. When did those discussions take place? They took place, I think two separate occasions, once in your office and once in my office in which the town made an offer to settle the case, basically. Whatever it was, year that was. I'm sorry. It might
I don't remember
The town was saying that Mr. Johnson and his company could finish the year, the golf year, because the one good thing that was happening about all of this was the golf course was open and being run. And that at the end of
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that everyone would agree to wipe the slate clean and rebid, go out and bid again. That was talked about at your office at some point. office. office. I don't remember the date in my
You might have been at the one in my You could have been. I don't remember.
This discussion about rebidding the contract was based on the concept that the parties to the case would agree to the rebidding process? Yes. Was there ever a discussion about rebidding the contract without the approval of the parties in this case? Not until the Court issued -- I mean, the decision involving the injunction. Because we
were under a court order, we couldn't agree to that. You were under a court order? rebid the contract? Without the permission of the Court, yes. And You could not
finally in one of the sessions with the Court it was brought to the Court's attention. The Court
during this fall period of time said, you know, I'm not saying I'm not going to let the town,
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or, I don't have the paper in front of me but said something to the effect that, you know, I'm going to consider letting the town rebid. The Court said they would consider letting the town rebid in some sort of pleading? what you're saying? No. It was a hearing and the Court actually Is that
volunteered it and said at some point I'm not saying I'm not going to let the town rebid. Subsequent to the meeting you had with the representatives of CALM Golf at town hall you made the decision that you wanted -- or strike that. The town wished to rebid the contract; is
that correct? I didn't make the decision. That's why I rephrased it to say the town. Yeah. The town manager made that decision and
he told me at the end of the meeting after you and your representatives -- you and your representatives of CALM Golf left. And I
believe, I'm not positive but I believe Mr. Cushing and I, or it may have just been me, but I think Mr. Cushing was there and the town manager talked.
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Q.
Just to draw your attention to Exhibit 26 which is the memo that you drafted or memo from your office.
A. Q. A. Q.
Yes.
Okay.
The second to last page of that. Yep. The second paragraph says, "subsequent to the town's decision to reject all bids." where I'm looking at? MR. GILL: MR. EDGE: sorry. Second to last paragraph? Second to last page. I'm Do you see
Second paragraph. MR. GILL: Thank you.
Q.
It says, "subsequent to the town's decision." Do you see where I'm pointing to?
A. Q.
Right. I'm assuming first of all, subsequent is an error in syntax, that that meant prior to the town's decision to rescind the bid and award the contract, not subsequent to the decision.
A.
Well, I think the meeting -- there was a meeting that took place but before that. Had I been in
contact with the Inspector General, that's my -Q.
If I may, just the wording of this paragraph, am

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I correct to say that the actual wording saying the town decided to reject all bids and rescind the award of the contract to CALM Golf and then contacted the Inspector General to seek assistance on how to rebid the contract? question is, what happened first? My
Did you
decide to rescind the bid or did you contact the Inspector General? It has to be read -- the November -- the day the town revoked the award to CALM Golf, that was at the hearing of the court and you were given it at court. I gave it to you. I don't know. I
Once again, I can't answer your question.
need my file to put the whole thing together. I'm sorry. I can't answer.
Prior to submitting on this November 24, 2010 the rescission or the revocation letter, had you contacted the Inspector General in regards to whether you had the right to rebid the contract? I believe we had. I believe I did.
Is there any document that reflects that? I think at this time Mr. Lambiase was involved and I was working with him. he did it. I don't know. Either I did it or
There was some
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communication. don't remember.
We kind of looked at it. I'm sorry.
Was the communication before the letter, if that's what you're saying? Absolutely. Yes.
The letter just memorialized what we had been told. Was there any communication prior to the meeting that was held at town office in the fall of 2010? I don't think so, no. your people were at? Yes. No, I don't think so. So subsequent to that meeting you contacted the Inspector General's Office? Yes. In regards to a discussion of the rebidding process? Yes. I believe that's correct. The meeting that you and
Did you inquire as to whether you had the right to rebid the contract during any of those discussions? I understood it as twofold. We needed -- the
question was could we revoke an award, and now I

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remember the answer.
The answer was that we
could revoke the award as long as we had not entered into a contract. That's what the
Inspector General told either me or Lambiase. The second thing is we understood that in addition to -- there were two hurtles that we had to get the Court to allow us to do. couldn't do it. injunction -MR. GILL: down there. Could you guys keep it down We
The Court dissolving the
It's a little distracting. Sorry.
I'm sorry to interrupt.
Now I'm thrown off. (The last paragraph of the answer was read back.) You were saying that the Inspector General informed you that you had the right to revoke an award of contract? Not an award. If a contract had not been
entered into, that -- the difference was once you entered into a contract and signed a contract you could not revoke the award, but at any time up until the time of -- up until the
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time when you actually executed a contract you could revoke an award. For any basis? I don't know. I don't know that we -- that I I don't know. I don't know the
looked at that.
answer to that, any basis. So you don't know whether -I would know if I had my file. file here with me. Do you have any recollection if you provided the Inspector General your specific or the town's specific reasons for revoking this contract? No. I think it was theoretical again. I don't have the
You just asked if one can revoke the contract? We just wanted to know if -- what the frame of the reference of the law was. Was it your understanding the Inspector General was telling you that you could revoke a contract for any reason? You can't revoke the contract. The award of the contract. The award. The award of the contract. Excuse me. Prior to
the actual signing of the contract?

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A. Q.
Yes. But you're not sure whether you asked whether that could be for any reason?
A. Q.
I don't remember anything beyond that, no. Have you ever asked that question before during this litigation of the Inspector General?
A.
I don't remember.
I don't know that it was --
it would have come up, but I don't know.

Q.
Between the time the litigation was filed in December of 2008 and sometime in fall of 2010, you never inquired whether you had the right to simply rebid this contract under the RFP process?
A.
No.
During that time we were under the court We made a -- I made vigorous efforts to
order.
try to resolve the case in the town's favor and I was unsuccessful. And so as long as the injunction was in place, we were -- we accepted the authority. We
had no choice but to accept the authority of the Court and there was no ability to do anything about it. Johnson was in and running the course until the Court said otherwise, and we accepted
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that.
We weren't even thinking about any
rebidding except for the voluntary settlement offer that we made for everybody to agree to do it that way. When you discussed this with Mr. MacDonald and he advised you that, to look at the process of rebidding the contract, was there any discussion of inquiring of CALM Golf to supplement any of their submissions that they made to the town? No, not that I remember. So the entire decision was based on what was presented at that meeting? I would say so. At no point from the commencement of litigation through that meeting was there any inquiry made of CALM Golf about their capacity to run the golf course? Not that I remember, because the injunction was in effect. We weren't planning on anyone else
running it because the Court had -- and also once the season began -- that's why the offer, I said, was in two different parts. Once the season began from December or January on, the town kind of owned whoever was
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running it then in the sense you can't come after one person, collect all the money, then bring someone else in. the town can handle. At any point subsequent to the revocation of the contract was there any discussion between your offices or yourself or any member of the town and representatives of CALM Golf? Not that I remember. Was there any discussions -- back to the beginning of the initial RFP process. Do you It wasn't something that
have any recollection of ever speaking to Charles Lanzetta or Tony Morosco about this matter, about the RFP process? No. I never spoke to them. I never met them
until the day in 2010. Do you have any knowledge of anyone involved in this litigation that's been mentioned in this litigation other than obviously their counsel that had any discussions with Charles Lanzetta or Anthony Morosco about the RFP proposal? Not that I know of. I had no knowledge of
anybody talking to anybody. Did Mr. MacDonald ask you for any advice
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subsequent to that fall 2010 meeting whether the contracts should be rescinded or revoked, the award of contract should be revoked to CALM Golf? No. Mr. MacDonald made his mind up at that He was very emphatic about it. At the
meeting.
end of the meeting he was very -- he said something to -- I'm trying to think. I don't
have a good feeling about this or some -- this is not going to work. but that was it. He had decided, particularly when Mr. Morosco and Mr. Lanzetta said they weren't going to be able to meet the payment terms, they needed to do it for less money. As soon as he I don't know what it was,
heard that they wanted the town to give it to CALM Golf but at a lower price, that was not going to go anywhere with him. legally it could. You're testifying that CALM Golf stated they would be able to run the golf course but not at the price they had originally submitted during the RFP process? Well, no. They said -- they were hesitant they I don't think
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were not going to be able to do the price that they had bid and they needed to have negotiations about that amount, that then they were unsure. The question was this. Was -- I'm going
to say late October or November of 2010, I think, I don't know if I'm right about the date, and the membership fees and everything started up in December. So the question that Mr. MacDonald was interested in, are you going to be ready to go and run this thing and get it off the ground in January, and then my memory is that they faltered on that point. They didn't say no, but
their responses were not persuasive to Mr. MacDonald and he was concerned that they weren't going to be able to do it. Then they mentioned they were running another course that they had gotten since the first round or second round, whatever, third. When you contacted the Inspector General's Office to discuss the revocation of this award of contract, do you remember who you spoke to? No.
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Q.
Did you put any of your questions in writing to the Inspector General?
A. Q. A.
I don't think so. Or his office? I don't think so. MR. EDGE: Just give me one minute.
Q.
Is it your understanding the Inspector General has the authority to -- a binding authority on the interpretation of the procurement act?
A. Q.
I don't think it's binding. Did you do any independent legal review of whether it was appropriate to revoke CALM Golf's contract in 2010?
A. Q. A.
It wasn't a contract. Award of contract. Well, the statute says -- there's a statutory provision. time. It says you can reject it at any And
You can reject a bid at any time.
since there wasn't an award made there was no -yes, I did. I looked into it. That's why we
asked the Inspector General.
You can revoke a
bid at any time on, I think it's section 30B9. I may be wrong.
Q.
You can revoke an individual bid at any time?

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A.
No.
You can revoke -- pull back and rebid That's statutory.
something at any time.

Q.
So theoretically at the beginning of this litigation you could have at any point simply, according to your interpretation, you could have simply pulled back the rebid?
A.
Well, no.
But after you made the award it's not That was
clear that you can revoke the award.
the question that we were looking into. In other words, the bidding process had been completed, the second round, in January of 2009 and award had been made. By virtue of
making the award, all the other bids had been rejected. The only thing that was left on the
table was the award to CALM Golf. And the question was could that -- the question that I was asked to look at then was what I consulted the Inspector General. And I
looked, and my memory is that there was no black and white law on that question.
Q.
But you advised the town that it was sufficient to -- that it was appropriate to revoke CALM Golf's contract based therefore solely on advice given to you by the Inspector General?
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A. Q. A.
No, not their contract. Award of contract. I advised them that the town could revoke the award of the contract to CALM Golf based on the information I received from the Inspector General and my own analysis of it, subject to the Middlesex Superior Court allowing the town to do so. And that's exactly what happened,
because the Court also said the town could do it.

Q.
You're telling me that you interpret the law and what the Inspector General's Office has told you to allow you to pull back any bid prior to the award of contract?
A.
No.
What I'm saying -- what I'm saying is the
town has a statutory right to reject all bids, any and all bids under 30B. Once an award is
made and a contract has not been entered into, the town, based on the information that we received from the Inspector General, may revoke that award. And when an injunction is issued by a court you also need to get the permission of the Court to do so. That was the game plan. That's
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what we tried to do, because the town manager said he wanted to do it over and he wanted to do it right. Did the town at some point petition the Court simply to rebid the contract? The judge in one of the sessions in the fall of, I believe 2010, said on the bench that he was not going to prohibit the town from rebidding the contract. I understand that. But in February of 2009 the
judge issued his decision, issued the injunction. So between February 2009 or at some point in 2010, fall of 2010, did the town take any steps to petition the Court simply to rebid the contract, as according to you it's their right to do under 30B6? I don't know. Did you have any discussions -I don't remember that. Did you have any discussions with anyone, with the town, any officials at the town about the possibility of simply rebidding the contract? I don't know that. Except I will say that given
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the judge's repeated rulings, it would be unlikely that was, you know, that at that time it was going to happen. The judge, I believe,
mentioned the fact that he might allow the town to do that only when he saw that there was problems in getting the bonds to keep the thing going. Did you ever contact the Inspector General in this time period, between February of 2009 and fall of 2010, to ask them whether you had the right to simply petition the Court to rebid? No, I did not. Am I correct to say that all your communications with the Inspector General were entirely oral? No. Okay. There are written communications between
you and the Inspector General? Well, the Inspector General issued two letters. Let me rephrase. Am I correct to say that you -- the communications initiated by you were oral? I don't know. Do you have any recollection of writing any document, any letter, any memo, any
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correspondence, any e-mail to the Inspector General? No. I don't have any memory of that. But as
you know, there are thousands of pages in this case. But I don't remember that, no. I met
with the Inspector General, too.
I mean, it was
-- I met at the office of the Inspector General. Again, it was an oral communication, though? transcript of that communication? Not that I know of. MR. EDGE: Just a couple more minutes. No
In the second proposals, review of the non-price proposals, after that was done, those were done, you had a meeting between you and Mr. MacDonald at which Mr. Cushing was also present. recall that? There was -Was that your testimony? There was one meeting. There was only one There was not two Do you
meeting on the second set. meetings.
There was one meeting, one meeting. It wasn't
The decision was made that day.
issued that day but it was made that day. Mr. Cushing was present; is that correct?
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A. Q. A.
Yes. Under what role was he present at that meeting? I don't know. He was the recreation director
and he was doing the procurement.

Q.
He had reviewed the first set of proposals; is that correct?
A. Q.
I believe so. Was there any discussion about the impropriety of having him present for the second set of proposals after he reviewed the first set of proposals?
A.
No.
I don't remember that, but I don't think
that -- I think his role was giving Mr. MacDonald information.

Q.
Was he an evaluator at that time?
He wasn't an
evaluator of the second set of proposals, correct?

A. Q.
No. So is it your understanding that a non-evaluator was providing information to the evaluators at that meeting?
A.
Well -MR. KREIGER: Objection.
A.
Well, he was just providing information that was

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contained in the non-price proposals. As far as you recall, did he make any reference to any distinctions between the first proposal and the second proposal filed by any of the bidders? I don't remember any of that, no. Okay. Now, you testified before that you had
been involved in some RFPs for the town? Right. Does the town routinely provide these proposals to you before they submit them? Before -- are you talking -- not the proposals. No. The request for -- the RFP, before they
send the RFP. Yeah. I would look at -- I don't remember. I
think there was a consultant or something that was involved in the previous one, but I don't think that I looked at them. Not --
Your testimony is that you looked at every one of them? No. No. No. I just -- certain ones. I did not do RFPs, no.
Generally, no.
It wasn't the normal course of action for the town to have you review the RFP before?
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A.
No.
I only did a very limited amount.
The golf
course. ones.
I'm not even sure there were any other
There was some other things that I did. Some maybe I can't remember.
I can't remember what it was. building or -- I don't know.

Q.
The decision to revoke the award of contract to CALM Golf was made entirely by Richard MacDonald, correct?
A. Q.
Absolutely. Subsequent to that meeting did you have any written communication between you and Mr. MacDonald about that decision?
A. Q. A. Q.
What type of communication? Any communication that referenced that decision. Not that I remember, no. Did you put any -- did you draft any memos? Did
you draft any documents regarding the meeting that took place in fall of 2010 at the town office?
A. Q.
Not that I remember. And the decision to revoke the award was made at that meeting subsequent to the departure of CALM Golf and their representatives?
A.
By Mr. MacDonald.
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Q. A.
By Mr. MacDonald? Yes. MR. FOLLANSBEE: MR. GILL: to this case? MR. FOLLANSBEE: It absolutely does. I have one question.
Dare I ask whether it pertains
FURTHER EXAMINATION BY MR. FOLLANSBEE:

Q.
Attorney Troy, would you agree that CALM Golf in the first RFP process having used a price proposal based on a percentage of revenue rendered their bid non-conforming and ineligible for an award of the contract?
A.
Yes. MR. EDGE: Objection. That's it. Thank you.
MR. FOLLANSBEE:
(The deposition concluded at 3:58 p.m.)
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CERTIFICATE Commonwealth of Massachusetts Essex, ss. I, Jessica F. Story, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public in and for the Commonwealth of Massachusetts, do hereby certify: that ROBERT
S. TROY, the witness whose deposition is hereinbefore set forth, was satisfactorily identified by his Massachusetts driver's license, having been previously duly sworn by me, and that such deposition is a true record of the testimony given by the said witness. I further certify that I am not a relative or employee or counsel or attorney for any of the parties, or a relative or employee of such counsel or attorney, nor am I financially or otherwise interested in the outcome of the action. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal this 8th day of September, 2012. Jessica F. Story, CSR, RPR My commission expires on September 13, 2013
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ERRATA SHEET Instructions: You are entitled to read and correct your deposition. Please carefully read your testimony, making any necessary changes or corrections by identifying the page and line number, the change desired and the reason. Do not mark the actual transcript. Then date and sign the bottom of this page. PAGE ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ DATE: LINE ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ __________ REASON FOR CORRECTION _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ SIGNATURE: _________________
252
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CONTINUED DEPOSITION OF ROBERT S. TROY
CERTIFICATE
I, ROBERT S. TROY, do hereby certify that I have read the foregoing transcript of my testimony, and further certify that said transcript is a true and accurate record of said testimony. Signed under the pains and penalties of perjury this _____ day of 2012. ,
ROBERT S. TROY

Troy Deposition II

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1

CONTINUED DEPOSITION OF ROBERT S. TROY

CONTINUED DEPOSITION OF ROBERT S. TROY

CONTINUED DEPOSITION OF ROBERT S. TROY

I would suggest that you're

I just have to find it.

And he can answer?

CONTINUED DEPOSITION OF ROBERT S. TROY

MR. KREIGER: I'm sorry.

I didn't get the question.

CONTINUED DEPOSITION OF ROBERT S. TROY

11. THE WITNESS: Exhibit 11. I'm sorry.

CONTINUED DEPOSITION OF ROBERT S. TROY

had assembled. they were.

I don't think I found out anything.

I believe -- my best memory is that I accepted

I would have to look and

MR. COVINO: MR. GILL:

I assume the privilege is

waived with regard to this? MR. KREIGER: Yes. I thought we had a

standing agreement on this. MR. GILL: Yes, but he is -- he's now

You can trust us. MR. GILL:

So are you telling me then the

All privilege has been

When was the vote, please. Sometime this summer.

MR. KREIGER: MR. GILL:

So it was -- the last vote you You're saying

sent me, Art, was on June 7th.

When did they do that? I don't know the date.

MR. KREIGER: MR. GILL:

Was it in July? June or July. Probably

Do you have a copy

Mr. Kesten, do you have a copy

CONTINUED DEPOSITION OF ROBERT S. TROY

MR. KESTEN: MR. GILL:

I'm not being deposed.

Well, if you have it I'd ask

you to show it to us. MR. KESTEN: MR. GILL: Right.

You're refusing? I'm not telling you I have The

MR. KESTEN: it.

I'm not telling you I don't have it.

MR. KREIGER: MR. GILL: I'm sorry.

The question again?

I believe it was Mrs. Sullivan, Mr. Martecchini and Mr. Witten.

The board was very committed to

I'm not aware of that.

CONTINUED DEPOSITION OF ROBERT S. TROY

Now, after -- I know you didn't attend

Mr. Lanzetta's deposition.

Did you have

I don't recall that.

information, all the information that I was able

I thought you were talking about the

I think you're talking about --

CONTINUED DEPOSITION OF ROBERT S. TROY

MR. GILL: I'll clarify it. I'm sorry.

Let him clarify the question.

I believe Mr. Cushing was there,

Mr. Morosco? Mr. Morosco. And mister -- I think Mr. Geary