LETTER: CPAC SHOULD DENY LIBRARY TRUSTEES’ PROBLEMATIC REQUEST FOR $1,000,000

The Trustees of the Jones Library have now asked the Community Preservation Act Committee (CPAC) for $1,000,000 “to assist in the construction of new quarters for the Special Collections department of the Jones Library.”  So far, the CPAC has received 17 letters opposing this request. It has received three memoranda in support. One is from “The Jones Library, Inc.” Another is from the Amherst Historical Commission.  Both of the aforementioned memoranda deserve response. The Jones, Inc., memorandum is however problematic in the extreme. The CPAC should disregard it completely.

Jones Library, Inc., Memorandum: Who was Responsible? 
First, who sent it? The Jones Library, Inc., comprises the six elected Jones Library Trustees, wearing their hats as Trustees of the original, nonprofit Jones Library, Inc. In that capacity they own the Jones Library building and land, and various antiques and artwork bequeathed or donated to it. Like any corporation, they can act only as a body. They furthermore do all business pertaining to the Jones, Inc., at their regular Trustees’ meetings. That means complying with the Open Meeting Law, with majority votes for any actions that they take.

Agendas for Trustees’ two immediately preceding meetings, both in May, concerned the Library’s 2020 Budget Request exclusively. The Memorandum is however dated 9 June 2020. Did three or fewer Trustees agree on it privately, and send it? If so, this Memo represents that it comes from the Jones, Inc., when that representation is false.  Did a majority of Trustees do this? If so, they violated the Open Meeting Law. It’s a mystery that does not give confidence in the Trustees.

Problematic Content – No Obligation to Fund Request
Second, the Memorandum’s content cannot be taken seriously.  As background, three CPAC members informally obtained the views of the Community Preservation Coalition, and an official of the Massachusetts Department of Revenue (DOR), who had consulted a colleague. Both, they reported, thought that constructing new quarters for Special Collections is not an acceptable use of CPA funds.  The Town then obtained a contrary opinion from KP Law, which serves as Town Counsel, saying that it is. 

The Jones, Inc., Memorandum not only urges the CPAC to approve the Trustees’ request. It states: “If the Committee, an official Town agency, refuses to follow the opinion of the Town Counsel, that raises … legal, and political risk.” 

This I find outrageous. What legal risk? Town Counsel says only that it is “reasonable … to conclude that the use of CPA funds to construct a room that is specifically designed for and used to preserve and display the Town’s historic resources is permissible under the CPA.” It does not say that the CPAC has an obligation, legal or otherwise, to approve the Trustees’ request. How could it?  

There is only so much CPA funding each year. Even if all requests comport with the CPA, the CPAC usually cannot fund them all.  It must choose. Which projects it chooses are within its discretion and expertise. It has no obligation of any kind to fund one project rather than others.

And just what might be the “political” risk to the CPAC’s nixing this request? That the Jones, Inc., Memorandum is silent on that might be for the best.

Town Needs Official Opinion on Whether CPA Funds Can Be Used for Construction
The Jones, Inc., Memorandum also makes an argument such as I have never seen in my more than 40 years as a member of the Bar. It is: “If the Committee’s primary concern is the risk of a legal challenge to this grant, it should take much more comfort from relying on KP Law’s professional qualifications, obligation to defend its position, and the liability insurance behind it, than on the other, informal sources, which have no such obligation or insurance.” 

Nonetheless, KP Law has no “obligation to defend its position.” Its client, the Town, might ask it to do so. But that is all. Further, that KP Law carries malpractice insurance, whereas the DOR doubtless does not, in no way makes Town Counsel’s opinion superior. If an opinion from the DOR were challenged, the Attorney General would doubtless defend it. Do the Memorandum’s drafters really think that the Commonwealth would turn tail? That is not my experience. 

So what is the thought process here? My malpractice policy is bigger than your (nonexistent) malpractice policy, so I win the case? If so, the AG’s defending the DOR should suffice.

I accordingly reiterate a point made elsewhere: The Town should seek a more formal opinion on this question from the DOR. To rely on advice from the Jones, Inc., “mystery” Memorandum is to lean on a bent reed. 

Amherst Historical Commission’s Memorandum: Support In Principle, Bonded over 10 years
The Memorandum from the Amherst Historical Commission (here, Amherst Historical) is likewise dated 9 June 2020. It names Jane Wald as the Commission’s Chair. So far, so good.  

The Commission “is in favor in principle of preserving the town’s Special Collections with CPA funds targeted to HVAC, climate control, and fire suppression, and appropriate document and artifact storage, in an appropriately secured space, up to a total of $1 million with a recommended bonding period of 10 years.” (Page 3; bold font in original; underlining supplied.)

I welcome Amherst Historical’s account of the specialized climate control, fire suppression, and other systems that Amherst’s precious, irreplaceable Special Collections need. Nonetheless, can CPA funding be bonded over a period of years? I understand that this is questionable. Yet it’s a question for those who know. 

In any event, allocating $1,000,000 in CPA funds now to this proposed project is premature. 

The Trustees have provided no dollar estimates for such systems. Would the cost total $1,000,000 or more? Would it be less? At present, evidently, no one knows. 

Proposed Demolition/Construction Project Final Plans: Still None After All These Years
That’s one aspect of a stark reality: After 4 years of effort, this project still has no final plans. As Amherst Historical is well aware, the Library’s proposed demolition/construction project does not even comply with the Massachusetts historic preservation law. See Mass. General Laws, Chapter 9, §§ 26 and 27C, and 950 Code of Mass. Regulations 71:00: Protection of Properties Included in the State Register of Historical Places.

Critical Project Information for Massachusetts Historical Commission: 3 ½ Years Overdue
The Trustees’ planning and design grant legally obligated the Trustees to comply with the Massachusetts historic preservation “law and regulatory requirements, including that which affords the Massachusetts Historical Commissioner the opportunity to review and comment as early as possible in the planning states of the project….” “[A]s early as possible in the planning stages of the project” was nearly 4 years ago.

Yet the Trustees and Town have never yet provided the Massachusetts Historical Commission with the required “complete photographic coverage of proposed work locations on the exterior and the interior…, keyed to sketch maps or floor plans …. detailed project description … indication of what exterior and interior sections of the building will be removed and whether they will be stored for future reuse …. existing and proposed perspective illustrations of the project, keyed to a sketch map.” 

This crucial information is 3 ½ years overdue. See letter dated 23 December 2016 from Massachusetts Historical Commission to Town Manager Paul Bockelman, with ccs to Library Director Sharon Sharry, the Amherst Historical Commission, Save Our Library, and myself, among others.

Amherst Historical surely knows that the Trustees have failed to comply with this legal requirement. The Massachusetts Historical Commission’s 2016 letter required the Town to send all specified data, in hard copy, not only to itself, but also to Amherst Historical, to the Save Our Library group (SOL), and to myself. If Amherst Historical has received this data, that would be of interest. SOL and I have not.  

Historic Structures Report on 1928 Jones Library: Nearly 3 Years Overdue
In 2016, in addition, Amherst Historical devoted $10,000 of its due diligence funds, and later Town Meeting appropriated the remaining $25,000, for a detailed Historic Structures Report for the Jones Library. Amherst has such Reports for the Strong House and the Emily Dickinson Museum. The purpose of the Library’s Report was to “help to inform and guide final designs of the Jones Library expansion plans, if those plans proceed, by providing an objective framework of professionally-developed information about the building’s historic fabric.”. Such reports are standard for historic buildings. It was a surprise that the Library had none. 

This Historic Structures Report was to have be completed by 31 August 2017. It is now nearly 3 years overdue. Unless it was delivered quite recently, this Report still is not done.  Not only have the Library’s architects been kept in the dark about the 1928 Library’s historic features but any historical body that tries to determine the proposed demolition’s effects on the Library’s historic fabric remains, in 2020, in the dark, as well.

Still No Deadline for Final Plans
I have seen no estimate of when final schematic plans for the Library’s proposed project might be available. If past is prologue, it will not be any time soon. The Trustees will have to allow time for the Massachusetts Historical Commission’s consultation process to eliminate, minimize, or mitigate the plan’s many “adverse effects” on the historic character of the 1928 Library and on the neighboring Strong House, as well. This might well involve substantial re-design. 

Amherst Historical will presumably want to participate in these consultations. Members of the Amherst public and SOL will undoubtedly chime in. Thereafter, the Library’s architects will need time and yet more money to redo the schematic plans, yet again. Eventually, one trusts, there might be actual estimated dollar amounts for the various Special Collections climate control and other systems.

Even if the Trustees’ request to fund climate control and related systems comports with the CPA, therefore, allocating $1,000,000 now to a purpose for which Trustees still lack plans, and still lack dollar amounts, is premature – particularly given the question about bonding this amount. The CPAC would do well to deny the Trustees’ request. 

Sarah McKee

Sarah McKee is Past President, Jones Library Board of Trustees; Former General Counsel, Interpol U.S. National Central Bureau, Washington, D.C.; Member, D.C. Bar.  

Editor’s note:  Amherst’s Community Preservation Act Committee has received 20 letters in response to the Jones Library Trustees request for $1,000,000 to support new quarters for the library’s special collections.   All 20 can be found here ( follow links to 2021:2020-06-11).