Andover Townsman, Andover, MA

February 20, 2014

Formal vote lacking on computer lease Some say laptop approval was previously granted

By Bill Kirk
bkirk@andovertownsman.com

---- — Editor’s Note: Last week, The Townsman reported on news of the lease of 160 additional laptops for the School Department’s special education teachers, to the surprise of members of the Board of Selectmen, Finance Committee and at least one School Committee member. This week, we further explore the implications and legality of that lease.

Who authorized the four-year lease of 160 additional laptop computers for the School Department in the final days of the last fiscal year and did the transaction violate state procurement or other laws?

Those questions and others remain as town officials continue to look into how the School Department used surplus funds from the fiscal 2013 budget to enter into a four-year lease for the laptops without a formal vote from any boards or committees,

The Finance Committee, the Board of Selectmen and at least one School Committee member have said they were surprised to learn that School Department had signed a four-year, $177,000 lease for the additional Apple MacBook Pro-13s.

But school officials say they did inform the chairmen of the Board of Selectmen and Finance Committee, even though neither of them remember the discussion.

Further, school leaders claim that members of the School Committee were told about the transaction, although no record of a vote seems to exist.

State procurement law requires any contract that extends beyond three years to be approved by the relevant, deliberative body — in this case either the School Committee or Board of Selectmen. Selectmen did not vote on the matter, according to Chairman Alex Vispoli.

Town finance officials say that because the purchase expanded on a Town Meeting-approved warrant article originally authorizing the lease of 400 laptops for the School Department’s teachers and staff, it was covered under the provisions of the state procurement law.

During a joint meeting of the Finance Committee and Board of Selectmen earlier this month, the issue cropped up again, as members of both boards said the lease should be paid with school funds while Town Manager Buzz Stapczynski’s budget calls for the payment to come from the general fund.

The issue is likely to come up again soon — when next fiscal year’s budget for the Information Technology Department is reviewed, and again when the school budget is analyzed.

Who knew what, when?

According to School Committee member Paula Colby-Clements, many people knew about the lease deal. At a Dec. 9 joint meeting of the School Committee, Finance Committee and selectmen, known as the Tri-Board, she said the matter was discussed at a meeting on Good Friday last year when Stapczynski and the IT director made a presentation on the $2.5 million IT-1 plan approved by Town Meeting.

Colby-Clements said all of the former committee chairmen, including Selectman Paul Salafia, Finance Committee Chairman Jon Stumpf and she herself were at the meeting.

Neither Stumpf or Salafia said they could recall the meeting. But after reviewing his notes, Stumpf said while he was, indeed, in attendance, he had no recollection of discussing the additional computers.

“There was a meeting,” Stumpf said, “but I did not see anything in my notes about the number of devices (laptops) going from 400 to 560.”

Salafia also did not remember authorizing the additional leases. “We didn’t take a vote on it. We didn’t authorize it and we weren’t informed about it at the chairs’ meeting,” he said.

Minutes of that meeting do not appear to exist since it was not an advertised session given there was not a quorum of elected officials from any of the various boards present, Town Clerk Larry Murphy said.

School Committee informed?

According to Colby-Clements, the issue of the 160 additional leases was “brought back to the School Committee at a budget subcommittee meeting,” she said during the Dec. 9 Tri-Board meeting.

However, School Committee member David Birnbach disputed that assertion. “Absolutely not. I totally disagree. This is all news to me,” he said.

Colby-Clements responded, “I don’t remember whether you were there or not,” she told Birnbach. “You can disagree all you want, but it was brought to the budget subcommittee of the School Committee.”

Birnbach persisted that any major change — like the leasing of more computers than originally approved by Town Meeting — “should have come back to everybody (on the School Committee). Whether or not I was there is no excuse.”

An email from Superintendent of Schools Marinel McGrath to the Andover Townsman seems to support the contention that at least some members of the School Committee knew about the lease.

“I brought the situation forward to the School Committee chair, vice chair and budget subcommittee,” McGrath said, adding that they agreed the schools could use surplus funds left over at the end of fiscal year 2013 “to cover the shortfall in the technology purchase.”

It is unclear when that meeting took place or if minutes of it exist.

Current School Committee Chairman Dennis Forgue said he can’t remember when it came up or if there was ever a vote. But he said at some point “there was a suggestion” that the first year of the lease would be covered by surplus funds in the school budget, with the payments for the second and third years coming out of the general fund and the expense becoming part of the town manager’s Capital Improvement Plan request.

A vote does not appear to have happened during a regular School Committee meeting. School Committee minutes around the time the purchase order was filed at the end of June 2013 do not indicate any mention of a lease deal.

Minutes for the budget subcommittee are not available on the School Department’s website.

Vispoli said a vote should have been taken and recorded.

“It requires a vote of somebody,” he said. By entering into a four-year lease, he said, they are “encumbering money for future years. If you spend that money within the parameters of the budget, that’s one thing. But if you sign a contract beyond that period of the budget, that’s another.

“We never voted on it. It never came to us. We found about it afterward.”

Part of the plan

Some town officials say it was not necessary to get School Committee or selectmen’s approval for the expanded lease because it was part of the “master plan” put together by the IT director and because Town Meeting had approved the overall program.

“When we procured the 160 Macs, we did so believing that the acquisition was consistent with the intended scope and prior approval of IT-1,” school Business Manager Paul Szymanski said. “Therefore, there was no need for a separate vote.”

Szymanski said in an earlier email that although the 160 Macs were not specifically included in the IT-1 Town Meeting request, members of the School Committee, along with other boards, knew about them.

“We explained the need for the additional units to the School Committee — the approving authority (and other boards and committees) and that the required purchase was to be in accordance with (chief information officer) Paul Puzzanghera’s master plan — that being to acquire said units on a four-year lease agreement,” he said.

Purchasing Agent Tom Watkins said a Town Meeting warrant article approved in 2011 allows the town or School Department to enter into contracts up to five years without Town Meeting approval. However, he added, three- to five-year contracts still require the approval of the School Committee or Board of Selectmen.

That approval, Watkins said, was provided “via the Capital Improvement Plan and process.”

Town Meeting voters did approve the original plan to lease the computers as part of the IT-1 Capital Improvements Plan article in 2012.

Town Counsel Tom Urbelis did not return two emails seeking comment about the matter.

A spokeswoman for the state inspector general’s office, which oversees the state procurement law and monitors fraud, waste and abuse, would not comment on the specifics of the case.

Generally, though, if a community does violate Chapter 30B, the public procurement law, the remedy is that the vendor should not be paid.

“A contract made in violation of this chapter shall not be valid,” reads Section 17B of the state procurement act. “And the governmental body shall make no payment under such contract. Minor informalities shall not require invalidation of a contract.”