City Lawyer Says HHS Solar Firm Has No Grounds to Sue

Haverhill City Solicitor William D. Cox Jr.

Council President John Michitson during an appearance on WHAV.

Even though a Marlborough-based firm won a bid to place a 2.2 megawatt solar power array atop Haverhill High School, it has no grounds to sue the city as a result of a school committee vote last month not to advance the project.

That was the bottom line response of City Solicitor William D. Cox Jr. in response to questions raised by council President John A. Michitson.

“It is, and remains, my opinion that there is no enforceable contract between the parties,” Cox wrote in an email. “It is well settled in Massachusetts case law that authority must be provided by…to the mayor to sign a specific document, he must sign and the contract must be compliant with all other statutory and charter requirements in order to be a valid agreement between the parties,” he added.

Quincy Vale, manager of MassAmerican Energy, hinted at legal action after the school committee’s 3 to 3 vote June 23.

“We might have a right of recourse,” Vale told WHAV. He explained the company has spent at least $60,000 on the project after winning a competitive city bid last year.

Last month, School Committee members Scott W. Wood Jr., Shaun P. Toohey and Maura L. Ryan-Ciardiello voted against allowing the installation of solar panels and authorizing the administration to complete agreements with MassAmerican Energy. Members Paul A. Magliocchetti, Gail M. Sullivan and Mayor James J. Fiorentini voted in favor—resulting in the tie vote. Committeeman Sven A. Amirian, who works for MassAmerican, left the room and did not participate because of conflict of interest concerns.

Wood said he opposed MassAmerican Energy of Marlborough, as he did in December, because he believed Amirian, as an elected official, should not financially benefit. Noting MassAmerican had created a separate holding company for the high school project, Toohey questioned what would happen if MassAmerican were to declare bankruptcy. He pointed to Missouri-based SunEdison’s April bankruptcy filing. SunEdison was the developer of a proposed solar array at Haverhill’s former Old Groveland Road landfill.

Proponents argued MassAmerican’s plans will reduce the cost of electricity and give the city a free roof at the high school.

Michitson also asked Cox whether the project could still proceed based on the school committee’s favorable six to one December vote.

“The votes in December, 2015, were to designate MAE as the preferred bidder. This, in and of itself, confers no contractual rights whatsoever in MAE. It simply puts them and others on notice that the city/(school committee) wishes to work with them to negotiate a contract pursuant to the bid response,” Cox responded.

Cox, however, added slight wording changes in motions by the city council and school committee would have resulted in a very different outcome. “Had the (city council) and (school committee) authorized the mayor to sign whatever documents he needed to enter into an agreement…then it could be stated that he was authorized to sign. This is not the situation before us.  Both bodies required that the final document be brought back for approval,” the city solicitor said.

After receiving Cox’s answers, Michitson told WHAV by email, “We have a multi-pronged effort underway to undo this travesty.”