DCAM decision in line with MBA courthouse report

Issue June 2005 By Andrea R. Barter, Esq.

State officials effectively endorsed recommendations of the Massachusetts Bar Association Middlesex County Courthouse Committee when they announced that hundreds of employees and prisoners will be moved from the Edward J. Sullivan Courthouse in Cambridge while asbestos is removed.

In a joint statement on May 24, Robert A. Mulligan, the state’s chief trial court judge, and David B. Perini, commissioner of the Division of Capital Asset Management (DCAM), said that while asbestos removal could have been completed safely with people in the building, they felt it was wise to close the courthouse, given the level of concern among employees.

The decision follows months of protests from those who work in the building, who have demanded that the state relocate them before beginning a $14 million project to remove the carcinogenic material from the elevator shafts.

The statement from Mulligan and Perini was in line with the recommendations of the MBA Middlesex County Courthouse Committee, chaired by Judge John E. Fenton and appointed to conduct an independent investigation of the courthouse situation. As adopted on May 25, the committee’s report — which finds that the proposed asbestos abatement projects would create a potential health and safety risk to building occupants and users — calls for the building to be evacuated during the project. It further recommends that the House of Delegates decide whether it is appropriate for the MBA to join in litigation brought by the party plaintiffs if mediation does not resolve any outstanding disputes.

In considering the report, the Delegates adopted an amendment that formally thanked Mulligan and Perini for their decision to protect the health and safety of the occupants of the courthouse.

Chris Milne, who represents the court workers and the Massachusetts Academy of Trial Attorneys (MATA) and chairs the MBA Civil Litigation Section, said the results of the committee’s efforts are “tremendous. The MBA, by getting involved, has moved the whole situation toward a resolution.”

“I think it’s absolutely clear that but for the committee, chaired by Judge Fenton, the diligence of their work and the impeding vote by the House of Delegates, this would not be happening right now,” said Milne.

Milne attributes DCAM’s announcement to the legal community’s respect for Judge Fenton and the extraordinary commitment to fairness demonstrated by the committee. “After years of DCAM saying it would go forward with asbestos removal while workers were in the building, within one week of the committee’s report announcement, there was a complete reversal of the DCAM position. That’s a positive for everyone, including DCAM and the trial court,” he said.

Mediation debated However, Richard Zelinsky, Goulston & Storrs, who represents DCAM, was not prepared to agree to any HOD resolution recommending mediation. “There is nothing left to mediate, in our view. The issues of relocation, timeframe and the like are within the prerogative of DCAM to work out,” he said.

“They just blithely say ‘we won’t mediate.’ What does that say to those in the building who are actually exposed to the risk, when the powers that be say ‘we don’t even want to talk to you about any possible solutions’?” countered Milne.

Fenton supports the mediation option because of possible conflicts during the asbestos removal process.

Added Milne, “The employees have standing to make sure everything is done safely. If DCAM says ‘we can do whatever we please and will tell you about it later,’ that’s not fair to the employees. They should be in the information loop and have some input on it. Had that been done years ago, we wouldn’t be where we are now.”

“We’d like open dialogue and a spirit of cooperation and hopefully mediation could engender that,” he continued.