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APPROPRIATION COMMITTEE-2.020 ATM 25 March 2020
<br /> Specifically, the article asks Town Meeting to reduce the expense line item in the municipal budget for
<br /> legal services (which funds outside counsel)by$300,000, and to increase the line item which supports the
<br /> Town Manager's staff(which could be used to hire in-house counsel)by$100,000,for a net budget reduc-
<br /> tion of$200,000. The underlying assumptions are that $100,000 would be sufficient to hire an in-house
<br /> lawyer and that outside legal costs would thereby be reduced by 73%, from the budgeted $410,000 to
<br /> $110,000. The article does not specify what should be done with the resulting surplus from these proposed
<br /> budget adjustments.12 It also does not seek any adjustments to the budget of the school department.
<br /> Some other municipalities, primarily larger cities and towns such as Boston, Cambridge, Brookline and
<br /> Newton, employ one or more in-house counsel, and there are some advantages to this arrangement. Given
<br /> the current economics of the legal profession, in particular the large number of unemployed or under-em-
<br /> ployed lawyers, it is fair to say that the hourly cost of an in-house lawyer, after accounting for wages and
<br /> benefits, is substantially less than the hourly cost of outside counsel.13 It is also likely that a dedicated in-
<br /> house lawyer would have greater familiarity with Town personnel and practices and be more accessible to
<br /> Town staff on a day-to-day basis.
<br /> There are also some disadvantages. Because in-house counsel deal with the affairs of only a single munic-
<br /> ipality,rather than a variety of municipalities,they are not likely to have the same breadth of experience as
<br /> outside counsel. Law firms concentrating in municipal law, having specialists with particular skills and
<br /> experience in certain areas such as real estate transactions,environmental concerns,or courtroom litigation,
<br /> can add substantial value to the services provided.It is not clear whether a community the size of Lexington
<br /> would have enough "routine" legal work to occupy an in-house lawyer full-time. And if the work of a
<br /> particular outside law firm, or a lawyer within a firm, should be found wanting, it would be far easier and
<br /> less disruptive to replace that firm or lawyer than it would be to discharge a Town employee and find a
<br /> suitable replacement. The choice between the two approaches is, at best, a judgment call.
<br /> The Town's governing statute,the Selectmen-Town Manager Act, confers the responsibility for engaging
<br /> counsel not on Town Meeting but on the Select Board and the Town Manager. Section 2(b) of that Act
<br /> provides that"[the Select Board] shall appoint... a town counsel." Section 9(h) provides that"[t]he town
<br /> manager shall... have the authority... to employ special counsel with the approval of the [Select Board] to
<br /> assist the town counsel whenever in his judgment it may be necessary."
<br /> Given this statutory mandate,a majority of this Committee believes it is the prerogative of the Select Board
<br /> and the Town Manager, acting as the "executive branch" responsible for managing the day-to-day affairs
<br /> of the Town,to determine how best to meet the Town's needs for legal representation.14 While it might be
<br /> reasonable for Town Meeting to adopt a non-binding a resolution urging a different approach,the majority
<br /> believes it is neither appropriate, nor in the best interests of the Town, as long as the Select Board's judg-
<br /> ment is reasonable, for Town Meeting to try to force a change in this hiring policy through changes in the
<br /> budget.
<br /> A minority supports this request on the grounds that(1) a substantial portion of the town's legal services
<br /> are of a routine nature (i.e. not specialized as in bond or labor counsel), (2) the amount spent on routine
<br /> legal services is substantial enough that use of in-house counsel would yield a savings, (3) a significant
<br /> pool of qualified candidates exists from which to hire in-house counsel, (4) free external resources exist to
<br /> 12 Among other things,the net$200,000 reduction in the"legal"budget could be used:to increase other line items in
<br /> the operating budget;to increase the appropriation to the Capital Stabilization Fund currently proposed under Article
<br /> 19;or to lower the tax rate.Alternatively,it could simply remain unallocated and,if not appropriated at a special town
<br /> meeting in the fall,flow to Free Cash at the end of the fiscal year.
<br /> 13 The proponent has brought to this Committee's attention on numerous occasions classified advertisements placed
<br /> in the Massachusetts Lawyers Weekly by municipalities seeking to hire in-house counsel at a very modest salary level,
<br /> and these positions presumably do not go unfilled.
<br /> 14 In fulfillment of that responsibility,the Select Board has periodically convened special committees to examine the
<br /> issue and make recommendations. Those committees, while recognizing that there may be reasonable alternatives,
<br /> have consistently recommended continuation of the current arrangements.
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