Bad Advice From Framingham City Solicitor Torpedoes Late Bus Solution

The City Solicitor spooked the City Council into rejecting a new bus vendor by overblowing litigation threats in a dubious executive session.

The City Council meeting on December 10, 2024, promised to deliver vital support to the school district drive to solve the late bus problem, by approving a 5 year lease-to-buy contract with Anderson Motors for 72 new school buses.

To the complete surprise of the School Committee, and everyone paying attention to the late bus problem and its possible solution, the City Councilors, after a closed door 90 minute executive session, filed back into their open meeting room, rapidly and unanimously voted ‘No Action’ on the contract, adjourned, and disappeared back to their homes without a word on why they killed a promising solution to the late bus problem.

Why the Surprise?

In the prior City Council meeting on December 3, 2024, City Councilors appeared poised to vote approval of the Anderson Motors contract by a wide margin of 9-2, with the Mayor and City Solicitor aligned with the School Committee on the necessity of this to complete a solution to the late bus problem.

Due diligence on finances and deliverables had been done, as usual, in the Anderson Motors contract process managed by the school district, with Executive Director of Finance & Operations, Lincoln Lynch, at the helm. When the contract package was complete, the school district had coordinated with the Mayor on the steps for getting City Council approval for the 5 year lease-to-buy contract.

The Mayor was fully on board, even enthusiastic at the prospect of switching away from NRT to a new vendor, and the City Solicitor thought that although there was always the risk of litigation from NRT as the city terminated its contract early for lack of performance, the real risk was low, and a strong defense could be mounted in the event NRT sued for damages.

A joint meeting of the City Council and the School Committee was arranged for November 19, 2024, and the outcome of that meeting was sufficiently positive that a vote on the Anderson contract was scheduled for the December 3, 2024, City Council meeting.

The School Committee members kept in good contact with City Councilors on the issue, and their assessment going into that December 3, 2024, City Council meeting was that the contract would be approved by a 9-2 vote, with City Councilors King and Cannon opposing the contract, as expected from their long record of opposition or interference in school district matters.

All was set to go for City Council approval until George King threw a wrench in the works.

George King’s Maneuvers

In the December 3 meeting, City Councilor George King’s arguments that the school district had not done due diligence on the contract had fallen flat with most of the other Councilors, so George blocked a vote on the contract with an arcane charter maneuver, to buy time to find some way to kill the contract.

He then called for an executive session the following week, which gave him time to intensely lobby the Mayor and City Solicitor to reverse their positions on the contract. The strategy he chose was to make out that approving the Anderson Motors contract would trigger an adverse reaction from the current bus contractor, NRT, resulting in a lawsuit against the city seeking substantial damages.

The City Solicitor had already assessed the risk of a lawsuit as low and that, if one was filed, a robust defense could be mounted, as NRT had so clearly breached the terms of its contract. She had already sent multiple letters to NRT notifying them of their breach, and as has been apparent for a while the accumulated loss of instructional time during the term of the NRT contract is huge as so many students arrive late to school. That lost instructional time translates into large sums of money which could be claimed as damages against NRT.

A strong defense is certainly available to counter any NRT lawsuit.

Nonetheless, George lobbied the Mayor and City Solicitor in the 7 days between December 3 and December 10, and by exercising some kind of leverage, turned the Mayor against the Anderson Motors contract and the City Solicitor followed along.

In the City Council December 10, 2024, Executive Session, the City Solicitor gave a command performance blowing up the threat of an NRT lawsuit into a likely payout of millions of dollars in damages to NRT. All her prior arguments that the threat was low and a good defense could be mounted, disappeared like the morning mist.

It is rare to witness such a reversal.

Completely forgotten was the instructional damage which NRT has visited on our children.

A rough estimate of the total accumulated hours of instructional time lost translates into a dollar loss in the millions. So, any suit filed by NRT could be met by a counter claim for those very large damages.

Let’s flesh the numbers out a bit with real life estimates.

About 100 students have not set foot in school this year because they don’t have a bus ride. It costs about $18,000/student annually for a Framingham Public Schools education. That means if that group of 100 continues to be absent from school for the entire year, it would take about $1.8 million to make up for their lost instructional time. That’s just for this small group and that’s just for 2024-2025.

If lost instructional time is added in for the thousands who are late on a regular basis then the annual equivalent dollar loss will go well north of $2 million for 2024-2025. Add in the losses from several prior years as well and the total could approach $5 million, plenty to counterclaim against NRT in any lawsuit it could file against the city.

The defense against NRT is a strong one!

But the King maneuver worked, and he managed to orchestrate it all out of the public view in a masterfully Machiavellian manner.

What now?

There are two options going forward:

1. The City Council Revisits the Matter and Approves the Contract

It turns out that the December 10, 2024, City Council Executive Session, which cloaked the whole “City Council spooking” by the City Solicitor in secrecy, is almost certainly a violation of the Open Meeting Law. That whole discussion should have been held in an open meeting, as it amounted to the City Solicitor advising the City Council on possible litigation, and that is not allowed under the law.

The Open Meeting Law guide can be found here:

Open Meeting Law Guide and Educational Materials

The City Council invoked Purpose 3 (of 10) to justify its December 10, 2024, executive session. That is found on p.13 of the guide and specifically disallows discussion relating to potential litigation:

“Litigation Strategy: Discussions concerning strategy with respect to ongoing litigation obviously fit within this purpose but only if an open meeting may have a detrimental effect on the litigating position of the public body. Discussions relating to potential litigation are not covered by this exemption unless that litigation is clearly and imminently threatened or otherwise demonstrably likely. That a person is represented by counsel and supports a position adverse to the public body’s does not by itself mean that litigation is imminently threatened or likely. Nor does the fact that a newspaper reports a party has threatened to sue necessarily mean imminent litigation.

Note: For the reasons discussed above, a public body’s discussions with its counsel do not automatically fall under this or any other purpose for holding an executive session.”

An Open Meeting Law complaint regarding the dubious City Council Executive Session was filed on December 12, calling for the violation to be acknowledged and the meeting rerun in public, preferably with the School Committee present in a joint meeting.

By doing this, the matter could be fully discussed and the strong defense available to an NRT lawsuit properly explained.

Hope springs eternal that this could happen, and a better informed City Council and Mayor could approve the Anderson Motors contract.

However, it is unlikely that the City Council will admit an Open Meeting Law violation, nor revisit the contract discussion, nor subject the City Solicitor to public embarrassment on her reversal, nor approve the Anderson Motors contract.

However, if they don’t do these things, and if NRT fails to deliver the needed buses and disrupts the in-house school bus transportation shift, the City Council and the Mayor will feel the wrath of voters in the elections next November.

On to the other alternative.

2. The School Committee Cannot Proceed With the Anderson Contract

In-house busing would go forward in a more dangerous mode, where NRT is not out of the picture, and the school district depends on this failed vendor supplying buses, but not drivers.

Under the current NRT bus contract, the School Committee has an option to lease the necessary buses for the next school year, but the NRT contract ends after that year, and given the terrible performance of NRT under the current contract, there remain serious reservations about depending on a failed vendor to supply the requisite buses for the startup of in-house busing in the summer of 2025. The last thing the School Committee wants is a disruption of a smooth start to the in-house busing operation by an NRT failure in the supply of buses.

The School Committee was faced with a problem all of us have faced in one way or another in our lives. When confronted with a contractor or vendor who consistently failed to deliver the performance you wanted on project A, why would you ever hire them for a new project B?

For Framingham, NRT has promised and never delivered, for years.

Why would the city ever be so gullible as to believe NRT would change up their game and deliver 72 buses in fine condition on every one of the 180 days in the next school year? Does the city think that NRT will be marvelously happy and cooperative as the school district rolls out its new in-house bus operation, staffed by many of the drivers currently working for NRT?

This is a classic case of expecting a disgruntled, failed contractor to complete a new job with good spirits and high efficiency.

The School Committee wisely recognized the danger of sticking with NRT, risking another set of failures, and opted to go with a totally new vendor, Anderson Motors, for the 72 buses it now needs for the 2025-2026 school year.

But the King wrench is still stuck in the works, and our children remain at the mercy of NRT.

Kudos to the School Committee for trying to reach a better, less risky solution for our children.

Shame on George King, the Mayor and the City Solicitor, for blocking a creative solution to the school district’s number one problem.