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VOLUME: 1 PAGES: 1 - 48 EXHIBITS: 1 - 10 COMMONWEALTH MIDDLESEX, ss. OF MASSACHUSETTS SUPERIOR COURT DOCKET NO. 08-04641-B

JOHNSON

------------------------------------x 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,

------------------------------------x
DEPOSITION OF ANDRE MARTECCHINI, 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 offices of Follansbee & McLeod, LLP, 536 Granite Street, Braintree, Massachusetts, on Tuesday, July 10, 2012, commencing at 10:14 a.m. BRAMANTI

Defendants

PROFESSIONAL REPORTERS 92 BOSTON, MA 02109 617.723.7321 617.723.7322 www. .com

& LYONS COURT REPORTING,

DEPOSITION

OF ANDRE MARTECCHINI

2

1 2

APPEARANCES: Stephen R. Follansbee, Esq. Follansbee & McLeod, LLP 536 Granite Street Braintree, Massachusetts 02184 Attorney for the Plaintiff 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) Nina Pickering Cook, 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)

3 4 5

6
7 8

9 10
11 12

13
14

15 16
17 18

19 20
21

ALSO PRESENT: Doug Johnson

22 23 24

DEPOSITION

OF ANDRE MARTECCHINI

3

1

INDEX Deposition of: page

2 3 4 5
6 7 8 9

ANDRE MARTECCHINI Examination by Mr. Follansbee 4

Exhibits 1 2 3 4 5 January 2004 Letter from Doolin

Page 8 14 18 20 25

May 14, 2008 Memorandum E-mails Re: RFP 2008

10
11

Selectmen Minutes, August 25, 2008 RFP Selectmen Minutes, December 22, 2008 January January 28, 2009 Troy Invoice 15, 2009 Award Letter

12 13 14 15 16 17 18 19 20 21 22 23 24

6 7 8 9

31
33
37

January 16, 2009 Settlement Proposal

38 40

10 Judge Smith's Order, February 2, 2009

DEPOSITION

OF ANDRE

4

1

PRO

C E E DIN

GS

2 3 4 5 6
7 8

ANDRE MARTECCHINI, behalf of the Plaintiff, satisfactorily driver's deposes identified

a witness

called been

on

first having

by his Massachusetts

license,

then duly sworn, on oath

and says as follows:

9 10
11

EXAMINATION
Q. A.

BY MR. FOLLANSBEE: identify yourself.

Could you please Andre Martecchini.

12 13 14 15

MR. KESTEN: stipulations?

Are we doing the usual

MR. FOLLANSBEE: you have that -- except to strike reserved it's deemed signed

Yeah.

All objections

--

16
17

as to form and motions and

until the time of trial, 30 days after delivery. Fair enough. Waiving the notary

18
19 20 21 22 23 24 Q.

MR. KESTEN: MS. COOK: requirement.

MR. FOLLANSBEE: MS. COOK: Okay. We're back on
DEPOSITION

Yes.

That's

fine.

OF ANDRE MARTECCHINI

5

1

What is your occupation,
A.

sir?

2 3
4

I am a civil engineer consultant.

and engineering

Q. A. Q. A. Q. A. Q. A. Q. A. Q.

Do you have your own business? No. For whom do you work? Kleinfelder. Where are they located? Cambridge. 215 First Street, Cambridge. licenses?

5
6

7 8 9

10
11

And do you have professional Yes. Could you please A professional identify

12 13 14 15 16 17 18

those? structural license.

engineering,

And could you tell us your educational background beginning with high school. New York. bachelor masters of of

A.

Rye Neck High School, Maramoneck, Then, let's see, Cornell science, and then Cornell

University, University,

19
20 21 22 23 24 A. Q. A. Q.

engineering. And when did you recelve science degree 1978. And 1979.
DEPOSITION OF ANDRE MARTECCHINI

your bachelor

of

from Cornell?

?

6

1 2

Q.

And since 1979, has your prlmary occupation in the engineering field?

been

3
4

A. Q.

Yes. And how long have you lived ln Duxbury, Massachusetts?

5
6

A. Q.

Since December

1992.

7 8
9

And at some point did you run for political office in Duxbury?

A. Q. A.

Yes. What offices did you hold? First was Planning Board. I think it was 1994.

10
11 12 13 14 15

Then in March 1997, selectmen.
Q.
A.

And how long did you serve as selectmen? until March 2009. So some 12 years? Yes. And are those three-year Yes. Have you had any other positions government Duxbury? in town terms?

Q.
A. Q. A. Q.

16
17 18 19 20 21 22 23 24

A.

Yes. are those? Numerous Do serve on any
DEPOSITION OF ANDRE MARTECCHINI

Q.
A.

, appointed.
?

Q.

7

1 2 3

A. Q.

Yes. What committees do you serve on today? Safety Building

A.

I am the chair of the Public Committee.

4
5
6

Q. A. Q. A.

Any other committees? Yes. What other committees? The Alternative Trying that's Energy Committee. Yeah. Let's see.

7 8 9

to think what else. it right now.
I

I think

10
11

resigned

my other ones

recently.
Q.

12
13

What are the other ones that you had that you resigned?

14

A.

Local Housing Building

Partnership

and the School

15
16 17 18 Q.

Committee. were you ever the selectmen

And as a selectmen designee Committee? liaison

to the North Hill Advisory

19 20
21 22 23
24

A. Q.

No. Did you have any Advisory Committee with the North Hill

or the North Hill Golf Course as a

during your
A. Q.

No. Do you Ia DEPOSITION OF ANDRE MARTECCHINI

8

1

90's by some of the folks on the North Hill Advisory holes?
A. Q.

2 3 4 5
6

Committee

to expand the course

to 18

Yes. And did you participate regarding that? only. the expansion of ln the discussions

7 8 9

A. Q.

Peripherally

What was your Vlew regarding the course to 18 holes? it.

10
11

A. Q. A. Q.

I was against

And it never became No. passed, right?

an eventuality?

That--

12 13 14 15 16 17 18 19 20 21 22 23 24

Are you -- do you know an individual named Michael
A.

Doolin?

I do not. MR. FOLLANSBEE: as the first exhibit. (Exhibit No.1 ID marked.) I'd ask that be marked

Q.

Sir, have you had a chance to take a look at Number I?

A. Q.

And you were on January 2004?
DEPOSITION

board of selectmen

OF ANDRE MARTECCHINI

9

1 2 3
4

A. Q.

Yes. Do you remember addressing the lssue that Mr. Doolin was

A. Q. A. Q.

Vaguely. -- the board about? Yes. And did you ever -- do you recall meeting Mr. Doolin or any of the other North Hill Advisory matter Committee with

5
6

7 8 9

folks from the about the subject

10 11 12 13 14 15 16 17 18 Q. A. A. Q.

of this letter? No. any meetings of the North

I don't remember. Did you ever attend Hill Advisory selectmen

Committee

in the board of

room where

they kind of aired out the here?

issues that he's addressing Just, are you referring meeting? No. I'm referring meeting

to a board of selectmen

to a North Hill Advisory that took place in the board

19
20 21 22 23 24 A. Q.

Committee

of selectmen

Mural Room. so, no. board selectmen . Doolin were
OF ANDRE MARTECCHINI

I don't believe Do you where the I

meetings talking to

sues that

in this
DEPOSITION

10

1

board of selectmen?
A. Q. A.

2 3 4 5 6
7 8

Yes. And what do you remember Very vaguely I remember referring about that? the general issue, and I

think probably

it to Gordon would

be -- in other words, information.
Q.

trying to get some more

When you say referred Cushing

to Gordon,

you mean Gordon

9 10 11 12 13 14 15 16 17 18 Q. A. A. Q.

Yes. -- the recreation director? Do you

I should have asked this before. play golf yourself? No. Well, no. I don't call it golf. You call it walking

MR. KESTEN: lawns. You calling frustrated?
A.

around

it walking

around and getting

19
20 21 22 23 24

Yes. MR. KESTEN: Looking for balls. that one of

Q.

you aware -- did you understand major components of . Dool 's

faction was that 18
DEPOSITION

could no longer make North 1 Country

OF ANDRE MARTECCHINI

11

1

Club?
A. Q.

2 3
4

Yes. And do you recall town counsel an issue being presented to

for this review?

5
6 7 8 9

A. Q.

No.

I don't recall. it to Gordon Cushing, did

Now, after referring you have any more concerning

feedback

from anybody

this 18 hole tee time issue?
I don't

A.

We may have. no.
I don't

recall exactly

whether

10
11

recall. or have any contact Golf Management yourself to go

Q.

And did you contact with anybody

12
13

from Johnson

over these issues?
A. Q.

14 15 16 17 18 19 20 21 22 23 24

No. Have you ever had any contact anybody yourself with

A. Q.

No. -- at Johnson Golf? And just let him get the whole you start answering. Okay?

MS. COOK: question Thanks.
Q.

out before

regard to and Johnson from 1997
DEPOSITION

contract f 2008, did
OF ANDRE MARTECCHINI

town of was in

12

1

opportunity to ever review that contract?
A. Q.

2 3 4 5
6

No. Having received this letter from Mr. Doolin, did the board of selectmen take any action at all other than referring it to Gordon Cushing?

A. Q.

I don't believe we did, no. After -- did you ever make any appointments of any individual to the North Hill Advisory Committee yourself? MR. KESTEN: MS. COOK: MR. KESTEN: What do you mean? Objection. What do you mean yourself? Did you nominate anyone to be

7
8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. A. Q. A. Q. Q.

Nominate anyone.

on the North Hill Advisory Committee? No. And am I correct that the individuals who are appointed to the North Hill Advisory Committee are appointed by a vote of the selectmen? Yes. Do you ever recall appointing Mr. Doolin to the North Advisory Committee? he was appointed at the , then I would have him, but I don't
DEPOSITION OF ANDRE MARTECCHINI

I don't recall, I was on the

1.

13

1

Q.

In the, well, January

if I suggest

to you that in the letter that

2 3 4 5

of 2004 when Mr. Doolin wrote Number 1, sometime

that's Exhibit period

between

and the summer of 2001 Mr. Doolin was to the North Hill Advisory

appointed Committee

6
7
8

MS. COOK: 2004?

Do you mean the summer

of

9
10

MR. FOLLANSBEE: MS. COOK: 2001.

Did I say eight?

11
12

MR. FOLLANSBEE: I'll withdraw one.
Q.

2004.

I'll go back.

that question

and ask a better

13
14

Do you remember

Mr. Doolin being appointed Committee?

In

15 16 17 18 A. Q.

2004 to the North Hill Advisory I do not recall, no.

Do you think that it's an appropriate action, to take someone who is clearly and appoint

course this

of

19
20
21

dissatisfied person course?

him as an oversight running the golf

to the company

that's

22 23 2 A.

MS. COOK:

Objection.

You can answer.

I see no problem with it, no, :
DEPOSITION

Can I

a1

OF ANDRE MARTECCHINI

14

1

bit? MR. KESTEN: THE WITNESS:
Q.

2 3 4 5 6 7
8

You've Yeah.

started.

I will allow you to. elaborate, but I would

They may not want you to love you to elaborate. people to committees

A.

Very often we would that wanted ln a topic,

appoint

to get involved

and had an interest thing.

so that was a very common

9 10 11 12
13

MR. FOLLANSBEE: as the next exhibit. (Exhibit No.2
Q.

I'd ask this be marked

ID marked.) to review Exhibit for place

Okay. Number

Having

had a chance

2, do you remember

the RFP process that was taking

14
15

the North Hill Golf Course in 2008?
A. Q.

16
17 18

Not really, Having

no. to read the letter, does

had a chance

that refresh

any memory

that you have regarding

19
20 21 22 23
24

some of the issues that the North Hill Advisory Committee
A. Q.

had regarding

the RFP process?

do you

was the crux of their contract?

A.

I DEPOSITION

It

was -- I can't

OF ANDRE MARTECCHINI

15

1 2

remember.
Q.

Do you know what they're third paragraph

referring

to in the

3 4 5
6

of Page 1 where they refer to of town counsel has

the fact that the opinion been that the manager right even though obvious

was within

their legal with the

it may conflict

7
8

intent as stated in the management Do you know what they meant by that? 1, I think

agreement?
A.

9
10 11 12 13 14 15

Well, having looked at this, Exhibit it's an issue like that, for example.

Q. A. Q.

The tee time issue? Yeah. And did you understand that -- I mean, you knew obviously. Did you

it was a 9 hole golf course, understand individuals that by using

18 holes of tee times, somebody else of

16 17
18 19

would be depriving to play there? Objection.

the opportunity MS. COOK:
A. Q.

Yes. And did you have a position issue? yourself on that

20
21 22 23

A. Q.

No. And having referred you with
DEPOSITION

to Gordon Cushing, way Gordon Cushing

were had

24

OF ANDRE MARTECCHINI

16

1 2 3
4

resolved

or handled

the situation?

MS. COOK:
A. Q.

Objection.

Yes. So personally, whether you didn't have a position

5
6

they got 18 hole tee times or not; lS

that correct?
A. Q.

7 8 9

Yes. NOw, In the summer of 2008, between September May and review any

of 2008, did you personally

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. A. Q. A. Q. A. Q.

of the RFP documents? Can you repeat the dates. Yes. Between May 14th of 2008 and the end of any of the RFP

September documents Club? Yes.

of 2008, did you review pertaining

to the North Hill Country

Did you suggest Yes. Do you remember Yes. Could you please you --

any changes

to them?

what changes

you had suggested?

on what changes

a-boy. . COOK:
DEPOSITION OF ANDRE MARTECCHINI

17

1

MR. KESTEN: (Discussion
A. Q.

All right. off the record.)

2 3
4 5 6 7 8 9

What was the question? The question was, what suggestions did you have

as far as the RFP process?
A.

There was a suggestion facility, basically performance

to add a practice that it would rock solid

and I was concerned be unbiddable

without

specifications

and pre-permitting bid it.
I was

10
11 12 13

and all of that to actually concerned that including

that in the bid RFP

would not be wise.
Q.

Were you familiar with the process

that had

14
15 16 17 18 19

taken place in the earlier RFP where a new clubhouse
A. Q.

was built as part of the procedure?

Yes. And that did include permitting, didn't specifications and

it?

A. Q.

Yes. But your thought was that the way the RFP was being structured in 2008, you didn't have that that would be required?

20
21

22
23 A.

of specificity

24

Q.

And as a
DEPOSITION

of

, was

your

OF ANDRE MARTECCHINI

18

1

recommendation without
A. Q.

that the RFP go out to bid the practice facility?

2 3 4 5 6 7
8

including

Yes. And do you recall that the various involved in the RFP process yourself people

including circulated

Mr. Cushing, drafts
A.

and others

of the RFP via e-mails? it. I don't recall anybody

I know I received else.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. A. Q. Q.

MR. FOLLANSBEE: marked

I'd ask that this be

as the next exhibit. (Exhibit No.3 ID marked.) to Exhibit

If I could direct your attention Number

3, and you may be able to make out at the these were from the Sullivan start at 23. If you

very bottom, deposition

and the pages

could go to Page 26. I don't see -- oh. I see that. to be an e-mail It's cut off. from you and that

And this purports

is dealing with the practice you just described, Yes. correct?

facility

And is this what you were referring were about
DEPOSITION OF ANDRE MARTECCHINI

when you sues?

19

1

A. Q.

Yes. And as far as the other individuals on the e-mail list, are you familiar with the individuals, Mr. MacDonald, Mr. Madden, Mr. Doolin, Betsy Sullivan, Robert Troy and Gordon Cushing?

2 3 4 5 6 7

A. Q.

Partially. Which ones are you familiar with and which ones are you not familiar with?

8
9
10 11 12

A.

Well, Cushing, Richard, Madden, Steve Studley and Betsy and Jon, Jon Witten I'm familiar with. Doolin I was not familiar with.

13 14
15

Q.

Okay.

And were you familiar with Robert Troy as

well, rstroy at verizon.net?
A. Q.

Yes.

Yes.

16 17
18
19

It was the custom and practice in 2008 to circulate these materials via e-mail, correct? MS. COOK: Objection.

A.

It wasn't necessarily practice, but yes, occasionally we would do it, yes.

20
21

Q.

's what happened specifically with regard to the RFP s, correct? MS. COOK: Objection.

22

23
24 A.

DEPOSITION

OF ANDRE MARTECCHINI

20

1

Q.

Other than the RFP process Country Club, during

for the North

Hill

2 3 4 5
6

your tenure

on the board of

selectmen

were there any other RFP processes with for the town of

that you were involved Duxbury?
A.

I can't recall. can't recall.

There may have been, but I I'm just trying to think of

7
8

timing of these things.
Q.

9
10 11

As far as you know, did the town of Duxbury any consultant to draft an RFP for the town? no.

hire

A.

Not that I recall,

12 13
14 15

MR. FOLLANSBEE: as the next exhibit. (Exhibit No.4 (Discussion
A. Q.

I'd ask this be marked

ID marked.)

off the record.)

16
17

Okay. Aside from reading the minutes Number that I've just of 2008,

18
19

glven you, Exhibit

4 from August

did you have any memory
A. Q.

of this hearing?

20 21 22 23 24

No. Having had a chance review the minutes what from was course were

25, 2008, do you remember that some of the at

?
DEPOSITION OF ANDRE MARTECCHINI

21

1

A. Q.

Yes. Are these minutes consistent with your memory as

2 3
4

to what the issues were?
A.
Q.

Yes. NOw, with regard to Mr. Doolin who was the chairman and this paragraph, of the North Hill Advisory
lS

5
6
7

Committee, second

on Page 4 of the minutes, did you understand

8
9

at the time what

he was talking see a greater
A. Q.

about when he said he'd like to focus on service over price?

10

11 12 13

Yes. What was your understanding looking for? to the tee times, for of what he was

14
15 16

A.

I think it was relating instance.

Q.

And so, again, the focus for that gentleman

was

17
18

that he wanted to be able to get 18 holes worth of tee times on weekends it?
A. Q.

and holidays;

is that

19
20 21 22 23 24 A.

Yes. Did you folks and any position on whether or not

be able to get double tee times on yourself?

DEPOSITION

OF ANDRE MARTECCHINI

22

1

Q.

And do you understand

how revenue would

increase

2
3 4

if 18 hole tee times were given? MS. COOK:
A. Q.

Objection.

No. In the, let's see. comments In the fourth paragraph, the

5
6 7 8 9

from Mr. Doyle,

do you know or did you

know Mr. Bob Doyle?
A. Q.

Yes. And had Mr. Doyle ever discussed lssues up at North Hill? with you the

10
11

A. Q.

Yes. What do you remember Mr. Doyle's -- or do you remember what

12 13
14 15

lssues were? what's written there. privately?

A. Q. A. Q. A. Q. A. Q. A.

Essentially

Did he bring those to your attention Yes. Do you remember what he said to you?

16
17
18 19

He just was not satisfied. And did he say why he wasn't Yes. What did he say? Basically, management I think his point was that the was brought
DEPOSITION

satisfied?

20 21 22 23
2

following sues

contract. the attention

Q.

And

OF ANDRE MARTECCHINI

23

1

of the selectmen as well?
A. Q.

2
3

Yes. And what response, if any, did you have to Mr. Doyle?

4 5 6 7
8

A. Q.

I don't recall specifically me. Did the board of selectmen have a response to him collectively?

A. Q. A.

Yes. What was their response? Work it out between Gordon, Bob Troy and the management.

9 10
11

12

Q. A. Q.

And were you satisfied that that was done? Yes. Now, did Mr. Doyle ever explain to you how he believed that the management company was running the club in a manner to discourage play?

13
14 15 16 17 18 19 20 21 22 23 24

A. Q.

I

can't remember, no.

And as far as the next paragraph, the reference to North Hill being expensive relative to other area clubs, did you ever investigate that issue?

A. Q.

No. And I assume as a relative non-golfer you weren't aware
c ?
DEPOSITION OF ANDRE MARTECCHINI

the

were at other area

24

1 2 3 4

A. Q.

Correct. Other than Mr. Doyle's issues with the North

Hill Country Club, did he bring other issues to you and other board of selectmen issues in town?
A. Q. A. Q.

for other

5
6 7 8 9

Are you referring Mr. Doyle, yes. Yes.

to Mr. Doyle?

Would you characterize was frequently of selectmen? bringing

Mr. Doyle as a fellow who complaints to the board

10
11

12 13 14 15
16

A. Q.

No. How about sporadically the board of selectmen; him as such? bringing complaints to

would you characterize

A. Q.

No. What other lssues, if any, do you recall that he brought to the attention of the board of

17 18 19 20 21 22 23 24

selectmen?
A.

Some roadway issues.

sues, some school building

Q.

you glven a copy propos was
DEPOSITION

the request
1 Country

for Club fall

in
OF ANDRE MARTECCHINI

25

1 2 3 4

2008?
A.

Can you clarify. it was issued?

After

it was issued or before

Q.

Did you see it either before after it was issued?

it was issued or

5
6 7 8 9

A. Q. A.

I saw Okay.

yes. When do you remember first seelng it?

I think probably September 16th.

about that September

e-mail,

10
11

Q.

And if I suggest

to you that the bid date on the 24th when

RFP for the fall of 2008 was October proposals before
A.

12
13

were due, would 24th?

you have seen it

October

14 15
16

Yes.

I just said -MR. KESTEN: He just said he saw it In

September. MR. FOLLANSBEE: marked
A.

17 18

I'd ask that this be

as the next exhibit.

19
20 21 22 23
2

But I just want to make clear that was the draft. I don't believe I saw the final.

. 5 ID marked. ) What's MR.
IJ DEPOSITION I

question? 't have a be

OF ANDRE MARTECCHINI

26

1

MR. KESTEN: I didn't whole

He said he's never

seen it.

2
3

know if you wanted

him to read the

thing. MR. FOLLANSBEE: I don't need him to read

4 5 6
7 8

it.
Q.

In the draft that you reviewed, seelng an expression called

do you remember business

comparable

enterprise
A. Q. A. Q.

in the draft?

9 10
11

No. Do you remember No. And do you have any understanding comparable this RFP? business enterprise of what is a to that lssue ever comlng up?

12 13 14 15 16 17 18

with regard

A. Q.

Yes. What lS your understanding comparable business as to what a is?

enterprise

MR. KESTEN:

You mean in general? Let me ? and

19
20 21 22 23 2 Q.

MR. FOLLANSBEE: MR. KESTEN: In 1

Why don't you turn to Page 4 of the exhibit, under the category second and third a
DEPOSITION

relevant

experience

in the

line it indicates company
OF ANDRE MARTECCHINI

that they background

27

1

for the operation

and maintenance business

of a golf enterprise. in

2
3

course or a comparable Do you remember

seeing that language

4 5
6 7 8

the RFP draft that you reviewed?
A. Q.

No.

I don't remember. with anybody of the

And did you have any discussion

about what that term meant in the context operation comparable
A. Q.

and maintenance business

of a golf course or a

9 10
11

enterprise?

No. And was there ever a discussion board of selectmen and Attorney suggested between your

12
13

Troy in which that language

the board of selectmen to Attorney
A. Q.

14 15
16 17 18

Troy?

No. And was there ever any discussion with

Mr. Cushing and the board of selectmen suggesting that the board of selectmen comparable business wanted

19
20

the expression included
A.

enterprise

in the RFP?

21
22

No. And other than my just calling your attention it, did you even know that the bus
DEPOSITION

Q.

to

23
24

s10n was 1n ?

s

OF ANDRE MARTECCHINI

28

1 2

A.

Yes, I have.

Yes. accounts?

Q.
A.

And is that from newspaper Yes.

3
4

Q.

So other than the fact that litigation commenced accounts, expression

was

5
6

and there had been some newspaper you had no knowledge comparable business that the enterprise was In

7 8 9 10 11 12 13 14 15 A. Q. A.

the RFP that had been sent out by Duxbury? Correct. And you certainly Attorney didn't discuss it with

Q.

Troy or Mr. MacDonald

or Mr. Cushing;

is that correct? Correct. In the RFP draft that you reviewed, any memory as to whether in the proposed contract do you have

there was a provision providing that members and

16
17 18 19

would get 18 hole tee times on weekends holidays?
A.

No. Did anyone discuss with you including language in the ? that

20
21

Q.

22
23

A.

No. 2008, was on board of

Q.

24 DEPOSITION OF ANDRE MARTECCHINI

29

1
2

A.

Betsy Sullivan, and it would have been Jon Witten.

3
4

Q. A. Q. A.

And do you know who the chairperson was? What time 2008? In December of 2008. Let's see. December 2008. I believe it would

5
6

7

have been me.
Q.

8
9

I'm not trying to give you a trick question. think we have --

I

10 11 12

A. Q.

I'm just trying to recall. We have some minutes of the selectmen indicating I'm not sure who the chair was. There are

minutes that suggest it was Jon Witten.
14 15 16 17 18 19 20 21 22 23 24 OF ANDRE I A.

MR. KESTEN: Witten. WITNESS:

September 8, 200B, Jon

Could Here's the

WITNESS: If

Maybe.
1

Yeah.

are
?

.
I

I

8,
I

30

1 2

of 2008, were you made aware that a decision been made by the town manager bids at North Hill Country
A. Q. A. Q.

had

to reject

all the

3
4

Club?

I had heard that, yes. And who did you hear that from? I don't recall As I understand MacDonald from who. it, Mr. MacDonald, Richard officer

5
6 7 8 9

is also the chief procurement

in the town of Duxbury? MR. KESTEN:
Q. A. Q.

10
11

He was at that time.

In 2008? Yes. So do you recall being Golf Management town in December informed that Johnson against the

12 13 14 15 16 17

had filed litigation of 2008?

A. Q. A. Q.

Yes. Do you know who informed I cannot remember you of that?

18 19
20 21 22

who told me that. with Attorney had been Troy

Did you have any discussions

about the fact that litigation commenced
A. Q.

against

the town? discussions. Attorney or rej

I don't recall Did you discuss

23
24

DEPOSITION

OF ANDRE MARTECCHINI

31

1

of the bids and the formal complaint been filed in the Middlesex against
A.

that had Court

2 3 4 5
6

Superior Golf?

the town by Johnson any specific

I can't recall

discussions,

no.

MR. FOLLANSBEE: as the next exhibit. (Exhibit No.6
Q.

I'd ask this be marked

7
8 9

ID marked.) that the

I think the operative

part of the minutes

I'd like you to focus on is the second page, liquor license renewal for Johnson Golf

10 11 12 13 14 15 A. Q. Q.

Management. MR. KESTEN: Do you remember of 2008? Yes. And these minutes and the complaint December are from December 22nd of 2008 He's seen that. up In December

that issue coming

16
17 18

in this case had been filed on

12th of 2008. do you that the

19
20 21 22 A. Q.

At the time of this meeting believe you would

have been informed

town had been sued by Johnson

Golf Management?

23 24

Is in

any reason

wasn't

mentioned

DEPOSITION

OF ANDRE MARTECCHINI

32

1 2

regarding

this liquor

license

renewal?

MS. COOK:
A.

Objection. not be there, or if it

3
4

I don't know why it would was even discussed.

5
6

Q.

Did Attorney Johnson

Troy inform you that the plaintiff, was seeking an a contract

Golf Management, against

7 8 9

injunction

the town awarding

to any other entity?
A. Q.

He may have.

I don't recall

specifically. 2008 to January with 2009

10
11

With regard to the December timeframe, Attorney do you recall

communicating

12 13 14 15 16 17 18 19 20 21 22 23 24 A. A. Q. Q. A.

Troy yourself

regarding

the RFP process

or the litigation I don't recall communications.

from Johnson

Golf? or

any specific

discussions

Did you -- do you recall

ever sending Attorney this issue?

Troy any letters regarding No. As far as the decision

to have Attorney

Troy

handle this case, did the board of selectmen ever authorize No. MR. 's coming to your that?

DEPOSITION

OF ANDRE ~iARTECCHINI

33

1 2

MR. KESTEN: dead horse. the bylaws. alone.
Q.

Oh, my God.

It's beating

a

The Town Manager Okay.

Act conflicts

with

3
4

Stipulated.

Leave the man

5
6

Did the board of selectmen this matter

consider company

referring for the

to the insurance

7 8 9

town in 2008?
A. Q. A.

No. And why is that? It was being handled manager time. and no reason by town counsel to consider and by town

10
11

that at that

12
13

Q.

Did town counselor with you

the town manager

discuss

14
15

A.

Can I clarify. probably

I think

it was not -- the reason

16
17
18

was that it was not a claim kind of to a procedural not have

thing at that time as opposed thing,

so I think that's why I would it.

19
20 21 22 23 24 Q.

considered

MR. FOLLANSBEE: as the next exhibit. (Exhibit No.7 On second 12
DEPOSITION
I

I'd ask this be marked

ID marked.) Number
I

of 2009

7 under

Troy

OF ANDRE MARTECCHINI

34

1

indicates

that he's revlewlng from you.

and analyzing

2 3 4
5 6

correspondence

Do you have any memory was about?

as to what that correspondence
A. Q.

No. Did you ever -- have you formulated yourself regarding the RFP process any position that was of 2009?

7
8 9

gOlng out to a new bid in January MS. COOK:
A. Q.

Objection.

No. In 2008 did you know any of the other bidders? And I'll list them. Did you know Mr. Gunnarson?

10
11

12 13 14 15 16 17 18 19 20 21 22 23
24

A. Q. A. Q. A. Q. A.

No. Did you know Mr. Lanzetta? No. Did you know Emmett Yes. Did you know Mr. Daley and Stiles? No. Did you know Mr. Johnson? I knew of him. Didn't know him personally. . Sheehan? Sheehan?

Q.
A.

Q.
A. Q.

What did -- how did you know From around town. And did -- had you appointed

him to a committee

In

?
DEPOSITION OF ANDRE MARTECCHINI

35

1 2

MR. KESTEN:

Had he nominated him or had

the board of selectmen ever appointed him? MR. FOLLANSBEE:
Q.

3 4 5
6 7 8 9 10 11 12 13 14 15 16 17 18

I'll ask two questions.

Had you ever nominated Mr. Sheehan for any position?

A. Q.

I don't recall. Did the board of selectmen appoint him to any positions in town?

A. Q.

I don't believe so at that time. Were you aware that Mr. Sheehan had served on the North Hill Advisory Committee?

A. Q.
A.

Not that I can remember, no. Did you know Mr. John Geary? No. Did Mr. MacDonald ever explain to you why he had rejected the bids the first time?

Q.

A. Q.

I don't recall.

No.

I don't recall.

Did Attorney Troy ever tell you why the bids had been rejected the first time?

19
20 21 22 23 A.

I can't remember any specific discussions. From your background

Q.

.)
Q.

your bus any
DEPOSITION

s background, had you ever been ?
OF ANDRE MARTECCHINI

24

36

1 2 3 4 5 6
7

A. Q.

Yes. And were you somewhat familiar with the public construction bidding laws?

A. Q.

Yes. And were you familiar at all with Chapter 30B of the Massachusetts General Laws, the Uniform Procurement Act?

8 9 10 11 12

A. Q.

Yes.

To some extent.

And was it at all puzzling to you that what seemed like a simple RFP for the North Hill Golf Course had resulted in the rejection of all bids? MS. COOK: Objection.

14 15

A.

No.

It'

uncommon in public bidding that

things like that happen.

17 1 19 Q.

bids? I don't

,
21

23 2

37

1

they had consulted and the Attorney

the Attorney

General's

office

2 3 4 5 A. Q.

General's

office had advised

them to reject the bids? No. Did you ever reVlew, varlOUS proposals yourself, any of the that

6
7
8 9

from any of the entities

had bid on the North Hill Golf Course?
A. Q.

No. Did anybody discuss with you any changes were being made in the RFP between the bids came in in October of 2009? that

10
11

the time that

of 2008 and January

12 13 14 15 A. Q.

No.

I don't recall

any discussions

or reVlews.

Were you ever provided

with a copy of the award signed awarding a

letter that Mr. MacDonald contract
A. Q.

16
17 18 19 20 21 22 23 24 Q.

to CALM Golf? We may have. I don't recall. it.

I don't recall.

We'll show it to you and see if you recall MR. FOLLANSBEE: as the next exhibit. (Exhibit No.8 Having taken a 8, letter , do
DEPOSITION

We'll have that marked

ID marked.) look 15, 2009
a

1 ever
OF ANDRE MARTECCHINI

?

38

1 2

A. Q. A. Q.

I don't recall

it, but. with the board of selectmen?

Was it discussed

3 4 5
6

Not that I recall. Once the lawsuit regular updating had been filed, did you receive from Attorney Troy

communication

you on the status of the litigation? Are you referring Golf? Yes. updates. to the

7
8 9 10 11 12 13 14 15 Q.

MS. COOK: litigation

with Johnson

MR. FOLLANSBEE:
A.

I don't recall

any, you know, regular have updates

We would periodically litigation, that. regular

on all of In

and it may have been included any specific, 2008. any settlement

I don't recall updates

you know,

in December recelvlng

Do you ever recall proposals litigation Duxbury?

16 17
18 19 20 21 22 23 A.

from Attorney between

Troy relative

to the

Johnson

Golf and the town of

Not that I can -- we may have, but I don't recall. MR. FOLLANSBEE: as the next (Exhibit No.9 ID marked.) I'd ask that be marked

24

A.
DEPOSITION OF ANDRE MARTECCHINI

39

1 2

Q.

Having had an opportunity Number January

to look at Exhibit proposal dated

9 which is a settlement

3
4

16, 2009, does that refresh your memory or not you've ever seen such a

as to whether proposal?
A.

5
6

I don't recall seelng this, no. If you became aware in January of 2009 that the proposal of CALM Golf had material what would your course of

7 8 9 10 11 12

Q.

misrepresentations, action have been? MS. COOK:
A.

Objection. and the town

To discuss counsel.

it with the town manager

13
14

Q.

And would it be a concern to you as a member the board of selectmen awarded a contract that the town manager

of had

15 16 17
18 19

based upon representations

from CALM Golf that were not true? MS. COOK:
A.

Objection.

Yes. And the fact that at least the representation in

20
21 22

Q.

this letter being that CALM Golf had no assets, be of concern to you?
A.

23
2

Q.

And at

time, and I know
DEPOSITION

was a

OF ANDRE MARTECCHINI

40

1

period that you were on the board after this, but at any time from January of 2009 up until the time you left the board, did you discuss of these issues with the town manager any

2 3 4 5
6

or Robert

Troy, the fact that CALM had no assets and that they had made misrepresentations?
A.

7
8 9

I don't recall, no. (Exhibit No. 10 ID marked.)

A. Q.

Okay. Have you ever -- Exhibit and decision of 2009. 10
lS

10
11

the memorandum 2nd

of Judge Smith dated February

12 13 14 15 16 17
18

Have you ever seen this document

before today?
A. Q.

I don't believe

-- I don't recall, no.

If you had, as a member of the board of selectmen, received this document in which on

Page 6 of the document

in the footnote Judge to the CALM

Smith notes that according financials

19 20 21 22 23 24 A.

it had $169 in total assets in 2007,

would that have been a concern to you?

Q.

And did anybody When was
DEPOSITION

1 you

I,

that. injunction,

Smith the
OF ANDRE MARTECCHINI

of

41

1

selectmen and town counsel? MS. COOK:
A.

2 3 4 5
6

Objection.

I don't recall it being discussed. MR. FOLLANSBEE: Just, is that just an

objection or is that a privilege issue? MS. COOK: Well, I was objecting while I

7
8 9

thought about whether it was a privilege 1ssue. MR. FOLLANSBEE: MR. KESTEN: MS. COOK: back. (The question and answer were read back.) MS. COOK: Yeah. I think -Well, whether it was Did he answer?

I think he answered already. Can I have the question read

10 11 12 13 14 15

MR. FOLLANSBEE:

discussed is a yes or no. MS. COOK: Yeah. That's fine. If the

16
17

answer 1S yes, then it would be a different story. Right. MR. KESTEN: MS. COOK: The answer's no. Right. We can move on. Yeah. If there was 's

18 19
20 21 22 23 24

MR. FOLLANSBEE: MS. COOK:

No communication,

nothing privileged. No
DEPOSITION OF ANDRE MARTECCHINI
I

no

42

1 2 3 4

privilege. MS. COOK:
Q.

Correct.

(By Mr. Follansbee) Did Attorney Troy ever tell you why Judge Smith made the ruling that he did? MS. COOK: Objection. I'm going to

5 6
7 8
9

instruct you not to answer that as privileged. MR. FOLLANSBEE: MS. COOK: privileged.
Q.

It doesn't

At this point it is still

10
11

Were you made aware that an injunction had been issued ordering that Johnson continue to run the golf course?

12 A. 14 15 16
17 A.

Yes. And as a result of that information, did the board to take any particular

Q.

18 19
20 2 22 23 24

Q.

delivered a

of

10,

you

A.
I

no

43

1

decision?
A. Q.

2 3

I do not recall

seelng this, but. Troy or Richard ln court that an

Did you ever ask Attorney MacDonald injunction

4
5

what had happened was issued?

6
7 8 9 10 11 12 13

MS. COOK:

I'm going to instruct

you not

to answer on the basis of privilege. MR. FOLLANSBEE: just limit the question
Q.

I understand

that.

I'll

to Mr. MacDonald. what had happened was issued?

Did you ever ask Mr. MacDonald in court that this injunction

A. Q.

I can't recall. In December of 2009, did Mr. MacDonald discuss

14
15

with you the fact that all the documents pertaining to the North Hill RFP process from town hall? You mean 2008. 2008. I'm sorry. had

16
17
18

been removed

MR. KESTEN:

MR. FOLLANSBEE:
A. Q.

19
20
21

No. Were you ever made aware that public involving bid process documents from

had been removed in Attorney's

22 23 24 A.

town hall and were being down at the Cape? No.
DEPOSITION

OF ANDRE MARTECCHINI

44

1 2

Q.

Up until

I just asked you about that, did you

know that had happened? MS. COOK: Objection. What? You can answer.

3 4 5 6 7
8 9 10 11 12 13 14 15

THE WITNESS: MS. COOK:
A. Q.

I objected.

No.

No. the Johnson Golf litigation other than

Did you ever discuss

with any other individuals members
A.

in Duxbury

of the board of selectmen? say no, and including in a meeting, it. it with anybody ln your choir? that with if it

I would wasn't

then we should not have

been discussing
Q. A. Q. A. Q.

Did you discuss No. You're Yes.

ln the choir

ln a parish

down ln Duxbury?

16
17 18 19

Is that Holy Family? church?

Is that the name of the

A.

Yes. Did you tell anybody December of 2010 For God's sake. Golf right we at choir practice in

20
21 22

Q.

MR.
Q.

23
24

that we've got Johnson

DEPOSITION

OF ANDRE MARTECCHINI

45

1

A.

No. MR. KESTEN: Discussions Choir practices.

2 3 4
5 6 7 8 9 10 11

are everywhere. off the record.) of the the

(Discussion
Q.

Was it a concern

of yours that members Committee

North Hill Advisory RFP were seeking not available

in drafting

to gain privileges public?

otherwise

to the general Objection.

MS. COOK:
A. Q.

I was not aware of any particular I'm specifically had put a clause you weren't ln the contract

requests.

aware that they requlrlng 18

12
13

hole tee times for members? MS. COOK:
A.

14 15 16
17 18 19 20

Objection.

No.

I was not aware.

MR. FOLLANSBEE: five-minute break.

Okay.

If I could take a close.

We might be getting

(Recess taken.)

21 22
23

I have nothing

further.

(

deposition

concluded

11:34 a.m.)

24
DEPOSITION OF ANDRE MARTECCHINI

46

1

CERTIFICATE Commonwealth of Massachusetts Essex, ss. I, Jessica F. Story, Certified Reporter, Registered Professional Shorthand and of

2 3 4 5

Reporter

6
7
8 9 10 11

Notary Public in and for the Commonwealth Massachusetts, MARTECCHINI, hereinbefore identified do hereby certify:

that ANDRE is

the witness whose deposition set forth, was satisfactorily driver's

by his Massachusetts

license, then duly sworn by me, and that such deposition is a true record of the testimony

12
13

glven by the said witness. I further certify that I am not a relative or employee or counselor or a relative attorney for of

14 15 16 17 18

any of the parties, such counselor or otherwise action.

or employee

attorney,

nor am I financially of the

interested

in the outcome

19
20 21 22 23
2

IN WITNESS WHE my hand 2012.

I have hereunto

set

sion on September 13, 2013
DEPOSITION OF ANDRE MARTECCHINI

47

1

2 3 4 5 6
7 8 9

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 LINE REASON FOR CORRECTION

10
11

12 13 14 15 16 17 18

19
20 21 22 23 24 DEPOSITION

s
OF ANDRE MARTECCHINI

48

1

2 3
4

CERTIFICATE

5
6 7 8
9

I, ANDRE MARTECCHINI,

do hereby

certify of my

that I have read the foregoing testimony, transcript testimony. and further certify

transcript that said record

is a true and accurate

of said

10
11 12

Signed under the palns and penalties perJury 2012. this day of

of

-----------------------,

13 14
15 16

ANDRE MARTECCHINI
17 18

19
20
21

22
23

24
DEPOSITION OF ANDRE MARTECCHINI

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