Monthly Archives: April 2017

Protecting park lands: issues and conflicts

Proposals to use town-owned land in south Brookline for a new elementary school, near the intersection of Heath and Hammond Streets, have led to protests from neighbors and from Precinct 15 town meeting members. Between 1941 and 1960, the land hosted a private school: the Rivers School. Brookline bought parcels of land there for recreation and school uses in stages between 1871 and 1960–the last acquired when the Rivers School moved to Weston in 1960.

Brookline renamed the former Rivers School the Baldwin School and named adjacent land the Soule Playground. Baldwin and Soule have a total of 12.3 acres, larger than the site of any current Brookline elementary school. Baldwin space has been used for Brookline classrooms, most recently during Heath School renovation from 2011 to 2013. Buildings on the Soule portion have become the Soule Recreation Center, currently hosting early childhood education operated by the Recreation Department.

Park land controversy: Some Precinct 15 town meeting members have been trying to claim that Baldwin land, Soule land or both cannot be used for a new elementary school because they are restricted as park land under Article 97 of the Massachusetts constitution. Such claims are false; they run counter to standards well established in Massachusetts law.

In the current Assessor’s Atlas and Property Database, Baldwin land is shown as Block 432, Lots 20-24, property classification code 934. Soule land is shown as Block 432, Lot 08-00, property classification code 931. The classification codes mean town-owned land improved with buildings that is used for municipal or for school purposes.

The classification codes shown in the assessor’s data correctly reflect the purposes for which Brookline acquired the land and for which the land is actually used. Open space that might be eligible for Article 97 protections as park or conservation land would instead have classification code 930, 932 or 936.

Article 97: For many years, Brookline’s government officials seemed to assume that any town-owned land considered to be a park or a conservation reserve was protected against diversion to other uses under Article 97 of the Massachusetts constitution–adopted by voters in 1972. The “Article 97″ markers in Brookline’s online Web pages currently reflect such assumptions and are often unreliable. For example, according to its terms of acquisition, Dane Park is currently eligible for school uses.

Although Article 97 describes rigorous steps needed to remove protections, it does not specify how land enters into those protections. Brookline officials got a surprise when they encountered the issues while preparing for the November 17, 2015, town meeting. Article 6 for that town meeting proposed to extend Article 97 protections to most of Larz Anderson Park.

Once Advisory Committee members understood that much of Larz Anderson Park might not be protected and could be used for a school site, they became skeptical. By more than two to one, they opposed the town meeting article. It had been filed to support an application for state park-improvement funds. Just before the town meeting was to begin, the state turned down Brookline’s application, and the matter never came to a vote.

As other Massachusetts jurisdictions wrestled with Article 97 issues, lawsuits arose, with some going all the way to the Supreme Judicial Court. The decisions set standards for situations in which Article 97 is vague. There are two particularly notable cases: Board of Selectmen of Hanson v. Melody Lindsay, decided in 2005, and Mahajan v. Department of Environmental Protection, decided in 2013.

The two cases cited indicate basic steps needed for town-owned open space, in order to guarantee Article 97 protections. It must be designated as park or conservation land by an act of the town. Usually that means a town meeting vote, although a town meeting might delegate authority–for example, in a land taking. The land status must be recorded in a deed, typically as some form of deed restriction. Under Massachusetts standards, playgrounds are recreation uses, not open space. School uses and recreation uses do not qualify for Article 97 protections.

Social justice: In contrast to the current status of Baldwin and Soule land, Brookline has several town-owned parcels whose status is unclear and may need to be investigated and asserted. As those parcels are reviewed, the run-up to the November 17, 2015, town meeting has shown that local policies will need attention. Conflicts can arise. What may seem to some like environmental or neighborhood concerns can look antisocial and greedy to others who have different priorities, such as recreation or public schools.

Consider, for example, possible new protections for some of the Baldwin and Soule land in Precinct 15. The distribution of Brookline’s public open space is grossly unequal. Precinct 15 has 257 acres of usable, public open space–over half the total for the whole town. In the urban areas near Coolidge Corner and Washington Square, Precincts 2, 6, 7, 8, 9, 10, 11, 12 and 13 have less than 10 acres each. Surely Precinct 15–with its giant legacy of usable, public open space–can easily spare enough for a handsome school site.

– Craig Bolon, Brookline, MA, April 25, 2017


Property Database, Town of Brookline, MA, 2017

Soule Early Childhood Center, Recreation Department, Town of Brookline, MA, 2017

Property type classification codes, Massachusetts Department of Revenue, 2016

Joslin Murphy, Brookline Town Counsel, Potential ninth school sites, 2016

John M. Collins (Collins & Associates, Shrewsbury, MA), Applicability of Article 97′s legislative approval requirement to proposed solar array, Oak Bluffs Water District, Oak Bluffs (Martha’s Vineyard), MA, 2016

Baldwin and Soule land, Assessor’s Atlas, page 125, Town of Brookline, MA, 2015

Mission and history, Rivers School (Weston, MA), 2015

Curley v. Town of Billerica, Massachusetts Land Court, case no. 2012 Misc. 459001, 2013, see Tab F

Mahajan v. Department of Environmental Protection, Massachusetts Supreme Judicial Court, 464 Mass. 604, 2013

Precinct map, Town of Brookline, MA, 2012

Dane Park, Public facilities descriptions, Town of Brookline, MA, 2010

Board of Selectmen of Hanson v. Melody Lindsay, Massachusetts Supreme Judicial Court, 444 Mass. 502, 2005

Massachusetts Constitution, as amended through 1990, see Article XCVII (97, approved 1972) and Article XLIX (49, superseded)

Transfer of land procedure, Massachusetts General Laws, Chapter 40, Section 15A (enacted 1951)

Craig Bolon, Town meeting: parks and schools, Brookline Beacon, December 4, 2015

Advisory Committee: don’t lock up town land, Brookline Beacon, October 3, 2015

Bermuda explosion: medical racketeering

On February 14 of this year, Bermuda filed a lawsuit in the Federal District Court for Massachusetts, seeking damages and legal costs from the Lahey medical organization of Burlington, MA. Bermuda claims that Lahey, aided by Dr. Ewart Brown, former prime minister of Bermuda, cost the country millions of dollars by engaging in a “pattern of racketeering activity.”

Bermuda v. Lahey is likely to prove complex. It seeks to apply the federal Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 to a civil dispute. Congress aimed RICO at “organized crime.” RICO helped reduce the New England Mob from subverters of mainstream business through violence and threats to exploiters of some peep shows and massage parlors. However, little known to most people, RICO also includes a section authorizing civil lawsuits.

When a “pattern of racketeering activity” by an “interstate enterprise” has been proven in court, triple damages plus legal costs can be awarded in a civil RICO lawsuit. As an early example, civil RICO was used successfully against anti-abortion activists who harassed and trashed a Philadelphia clinic during 1984, resulting in awards of about $45,000 for damages and $90,000 for legal costs.

Bermuda’s claims: According to the recent lawsuit, Lahey “accept[ed] fees for medically unnecessary…services…using those fees to pay Brown increasing bribes…to promote its interests in Bermuda.” [Bermuda v. Lahey complaint, paragraph 121] The “actions have caused [Bermuda] to…increase the rate at which it pays for certain health benefits, and to pay for overseas services in the United States….” [Bermuda v. Lahey, paragraph 132]

That is the essence of Bermuda’s arguments that it is owed damages under the RICO Act, in 18 USC 96.1962(a). Bermuda has also made claims under RICO Sections 1962(b), 1962(c) and 1962(d), using similar arguments. Its complaint says that fraud continued over more than ten years, that fraud cost Bermuda millions of dollars and that “bribes” and “kickbacks” were key elements in the “racketeering activity.”

“Lahey and Brown concocted a scheme built upon bribery and greed and carried out with complete disregard for Brown’s position of public trust or for the physiological and psychological impact on patients–who were subjected to excessive, medically unnecessary and frankly dangerous scans so that Brown and Lahey could obtain greater reimbursements….” [Bermuda v. Lahey, paragraph 3]

“Between 2006 and 2016, Bermudian public healthcare insurers paid Lahey over $40 million for services…To induce patient referrals for diagnostic scanning at the Brown clinics, Brown…offered and paid kickbacks, which he dubbed and disguised as ‘commissions.’…” [Bermuda v. Lahey, paragraph 92]

Dr. Brown is a bystander to Bermuda v. Lahey, not a defendant. If damages and legal costs were awarded under the lawsuit as filed, Lahey would have to pay. However, Dr. Brown’s activities would be key elements in showing a “pattern of racketeering activity” by an “interstate enterprise.”

A key issue for Bermuda will be proving that Lahey knew services in which it participated were “medically unnecessary.” If they were medically necessary or if Lahey did not know otherwise, then Lahey would not likely be seen as a party to fraud. According to the complaint in the lawsuit, patients were often referred to the Brown clinics in Bermuda, who would perform scans and send images to Lahey in the U.S. for interpretation. In such a sequence, Lahey acted as a third-party provider.

Conflicts: According to Bermuda’s complaint, “By 2001, Brown…was…serving as Bermuda’s minster of transport. At this time, [Lahey] entered into the first of many consulting agreements…whereby Lahey agreed to pay Brown and [his company Bermuda Healthcare Services] substantial sums of money in exchange [for] their promotion of Lahey’s interests on the island. [Bermuda v. Lahey, paragraph 28]

The complaint continues, saying “agreements called for Lahey’s payment of ‘consulting fees’ to Brown…in exchange, Brown…would ‘promote healthcare opportunities (for Lahey) in Bermuda and elsewhere in the West Indies.’…Brown’s use and exploitation of his role as a government minister to promote Lahey’s interests in Bermuda [was] a clear conflict of interest….” [Bermuda v. Lahey, paragraph 31]

According to the complaint, what looks to have been a problem developed into a threat: “Increasing the rate of Lahey’s payments was important to Brown because he was reliant on the payments to fund his clinics, which had to operate at capacity each month for him to stay…solvent.” [Bermuda v. Lahey, paragraph 38]

Bermuda’s complaint says Lahey had helped Brown make arrangements to buy a CT scanner for his clinics and later buy an MRI scanner–very costly and risky moves for an individual physician. In addition to paying off debt for equipment, he was also paying Lahey directly for interpreting scans, rather than their trying to bill Bermuda’s national health program, and he tended to fall behind on payments.

Bermuda’s complaint continues by saying that “Brown routinely used his role as premier…to ensure that Lahey got the access for which it paid him…on February 5, 2007, [the chief operating officer at Lahey] mailed Brown to thank him ‘for offering Lahey the opportunity to meet with your minister of health…to participate in the development of a future urgent care center’…Brown responded, ‘You didn’t know you were in the in-crowd? (Smile)’.” [Bermuda v. Lahey, paragraph 50]

As of 2007, an outside survey found that Bermuda did not require a government certificate of need to operate CT and MRI scanners. Its national health-care program did not require preauthorizations for scans. In Massachusetts, certificates of need for scanners began in 1976, and most health-care insurance plans required preauthorizations for scans in the 1980s. In its complaint, Bermuda notes that Dr. Ewart Brown successfully opposed a preauthorization requirement proposed in 2013. [Bermuda v. Lahey, paragraph 99]

Prospects: Clearly set out in Bermuda’s complaint initiating the recent lawsuit are issues that might have been obvious to Lahey executives: conflicts of interest between Dr. Brown’s efforts in Bermuda for Lahey and Dr. Brown’s duties in government, plus financial pressures created by Dr. Brown’s debt payments for medical equipment and Dr. Brown’s payments for medical services provided by Lahey.

Bermuda’s complaint has benefited from unexplained disclosures, such as messages cited between Dr. Brown and an executive at Lahey. However, Bermuda probably has more to learn about Lahey’s activities. Unless the case is dismissed on preliminary motions, it will enter discovery, providing Bermuda with opportunities to obtain information.

Bermuda’s complaint says that “no one was better positioned than Lahey, which read all scans conducted at the Brown clinics, to detect medically unnecessary scans.” [Bermuda v. Lahey, paragraph 81] However, Lahey did not necessarily know what medical indications had prompted scans, since it was reportedly Dr. Brown’s clinics that performed them. Whether scans were or were not “medically necessary” and how much Lahey knew about that are issues likely to develop at a trial.

Bermuda has accused Lahey of paying Dr. Brown for favors and accused Dr. Brown of paying other physicians to refer patients to his clinics. It will surely try to obtain documents and testimony strengthening those claims. If successful in the efforts, Bermuda might be able to prove at a federal trial what it now alleges–that the cooperation between Lahey and Dr. Brown comprised a “fraudulent enterprise,” subject to sanctions under the RICO Act. [Bermuda v. Lahey, paragraph 70]

– Craig Bolon, Brookline, MA, April 15, 2017


Complaint, Bermuda v. Lahey, case 1:17-cv-10242, U.S. District Court for Massachusetts, February 14, 2017

Priyanka Dayal McCluskey, Lahey fights back against Bermuda bribery allegations, Boston Globe, April 14, 2017

Unattributed, Brown braced for chance of arrest, Royal Gazette (Bermuda), February 24, 2017

Shelley Murphy and Priyanka Dayal McCluskey, Former Bermuda premier defends his ties to Lahey, Boston Globe, February 22, 2017

Shelley Murphy and Danny McDonald, Bermuda’s ex-premier calls claims Lahey bribed him a litany of lies, Boston Globe, February 16, 2017

Sam Strangeways, Lawsuit slams Brown and Lahey, Royal Gazette (Bermuda), February 16, 2017

Janelle Lawrence, Bermuda files lawsuit accusing a U.S. hospital group of costly, unnecessary medical-imaging tests, Bloomberg News, February 15, 2017

Mark Arsenault, Former Bermuda leader with ties to Lahey was educated in US, Boston Globe, February 15, 2017

Jo Anne Pool, Northeast Women’s Center v. McMonagle: a message to poltical activists, Akron Law Review 23(2):251-267, 2015

John J. Hamill, Brian H. Rowe, Kaija K. Hupila and Emily Burke Buckley, A guide to civil RICO litigation, Jenner & Block, 2014

Bermuda Hospitals Board: Estate Master Plan review, Johns Hopkins, 2007

Undeclared wars: the rain of U.S. cruise missiles

This month, the cockroach President joined the missile wars. That administration has now become the most aggressive ever, launching 59 cruise missiles so far during its first calendar quarter. None of the missile attacks have been authorized by Congress. Congress has not declared war since 1942, during World War II.

Missiles per quarter Presidential administration
18 Herbert Bush
26 Clinton
27 Walker Bush
6 Obama
59 Trump

In early April, news media reported a U.S. Navy carrier strike group deploying to international waters near North Korea. It includes the USS Vinson nuclear-powered CVN aircraft supercarrier, the USS Bunker Hill and Lake Champlain CG guided missile cruisers, and six DDG guided missile destroyers: the USS Benfold, Gridley, Higgins, Russell, Sterett and Stockdale.

Together the carrier group has around 8,000 personnel, 100 aircraft and 800 guided missiles–of which about two-thirds are typically cruise missiles. Attached to the carrier strike group may be one or more SSGN submarines, each carrying about 150 cruise missiles.

U.S. origins: The United States developed cruise missiles in the 1970s, mainly to launch attacks with nuclear weapons from U.S. Navy vessels at sea. The historical model was the German V-1, also called the “buzz bomb”–used against Britain during World War II. While versions were developed to launch from aircraft and trucks, only ship and submarine cruise-missile launchers are now deployed.

Seven models of cruise missiles have been manufactured by General Dynamics, McDonnell Douglas and Raytheon. They have been operational since 1983. Several models are in current production. A total of around 6,000 cruise missiles have been delivered to date, at an average program cost of around $2 million each.

Two models equipped with nuclear explosives, deployed from 1983 through 2013, were rated at yields of up to 200,000 tons of TNT–around ten times that of the Hiroshima nuclear bomb near the end of World War II. Five models with chemical explosives are rated at yields of up to about 1/2 ton of TNT.

U.S. cruise missiles have flight ranges of about 800 to 1,500 miles at variable speeds, about 250 to 550 mph. Different models are controlled by inertial guidance–gyroscopes and acceleration sensors–by radar, by optical systems, by satellite signals and by combinations.

Air attacks: From first offensive use in 1991 through the early spring of 2017, the U.S. military has launched a reported 2,217 cruise missiles in attacks against other countries. Flying at night, as they often have, their practical accuracies have been too limited to disable strategic targets reliably with chemical explosives. That has led to launching tens to hundreds of missiles in air attacks.

Year Missiles Target countries
1991 288 Iraq
1993 46 Iraq
1993 23 Iraq
1995 13 Bosnia
1996 44 Iraq
1998 79 Afghanistan, Sudan
1998 415 Iraq
1999 218 Serbia, Montenegro
2001 50 Afghanistan
2003 802 Iraq
2008 2 Somalia
2009 2 Yemen
2011 124 Libya
2014 47 Syria
2016 5 Yemen
2017 59 Syria

Several organizations promoting military activities have estimated schemes to attack North Korea before it can deploy nuclear weapons on long-range missiles. They find the window closing, with North Korea developing anti-missile and anti-ship defenses. North Korea already has several nuclear sites, weapons factories and military communications centers–plus around 200 truck-mounted missile launchers.

With ten or more cruise missiles needed to disable a strategic target reliably, the United States might need to launch a few thousand–essentially its current inventory. It might need to supplement those with strikes by land-based, supersonic “stealth” aircraft–the F-22 and B-2–and strikes by carrier-based forces. Such a campaign could far exceed the aggression against Iraq during the Walker Bush era.

– Craig Bolon, Brookline, MA, April 9, 2017


Idrees Ali, U.S. Navy strike group to move towards Korean peninsula, Reuters (UK), April 9, 2017

Bassem Mroue, Associated Press, U.S. strike on Syrian air base has limited impact on Assad, WTOP (Washington, DC), April 8, 2017

John Davison, Syrian jets take off from air base U.S. missiles struck, Reuters (UK), April 7, 2017

Corey Charlton, Japan to bomb North Korea in missile strike before crazed despot Kim Jong-un can destroy the country in nuclear attack, London Sun, March 28, 2017

John Pike, BGM-109 Tomahawk operational use, Global Security (New York, NY), 2017

Sam LaGrone, USS Mason fired three missiles to defend against cruise missiles from Yemen, U.S. Naval Institute News (Annapolis, MD), 2016

Rodger Baker, Assessing the North Korean hazard, Stratfor (Austin, TX), 2016

James Pearson, North Korea test-fires new anti-ship cruise missile, Reuters (UK), 2015

Tomahawk cruise missile: fact file, U.S. Navy, 2014

Carlo Kopp, Defeating cruise missiles, Air Power Australia, 2012

Craig Bolon, Circuses: cheaper than bread, Brookline Beacon, February 21, 2017