Post #1104: Sidewalks, one last try at clarifying the issue.

Posted on April 10, 2021

I’m just going to make a few simple points here that may have been missed in my last post.  I made the mistake of thinking that everybody knew this.  That’s my error, and I’ll try to correct it now.

These point are that:

  1. The Town of Vienna strenuously objected to the narrow interpretation of the Robinson bequest.  They didn’t agree with it.
  2. A lawsuit in this case is the professional way to have differences in interpretation of a legal document resolved through the legal system by a disinterested, trained legal expert (the judge).
  3. My opinion of what the intent of the document was does not matter.
  4. The legal impediment to using the money is what matters.  Unless you change that, the Town of Vienna’s current plans are as good as it gets.

The back story here is that former Town Council member Maud Robinson left millions of dollars to the Town of Vienna for “the construction of sidewalks”.  I’ll just note up front that, per my sources, that’s the exact phrase.  And that the only thing explicitly barred, in that bequest, was construction of trails.

That phrase — “the construction of sidewalks” — has been interpreted by the executor of the estate to mean “the construction of the flat sidewalk surface only, and none of the things that need to be attached to that surface in order to create an actual functioning sidewalk”.

Point 1:  The Town of Vienna objected to that interpretation.  That’s what I heard about it.  As it was described to me, the Town of Vienna pushed back strenuously against that interpretation, but the executor wouldn’t budge.

So don’t get it in your mind that some trouble-making outsiders think the executor’s interpretation is incorrect.  Nor is it true that somehow all the Town insiders agreed with that interpretation.  As I understand it,  not only did the Town government not think that was the right interpretation of Maud Robinson’s intent, they tried pretty hard to persuade the executor to change her mind.

I’m not a Town insider.  Far from it.  I only know what I’ve been told by people who should know.  So this is hearsay.  Those of you with connections, if you think this is incorrect, you might just ask people who are in the know.  Did the Town cheerfully accept that narrow interpretation of the bequest, or did they not?  My understanding is that they very definitely did not.

The upshot is that the Town tried to dispute this.  They maybe just didn’t try hard enough.

Point 2:  What is a lawsuit.  A lot of people probably had an unthinking, emotional reaction to the word “lawsuit”.  Whereas the guy proposing it (Patariu) is, in fact, a hot-shot lawyer.  For him, lawsuit” has no more emotional impact than, say, “wrench” might have to a mechanic.   Or “scalpel” to a surgeon.

A garden-variety lawsuit is not a morality play.  It’s not a melodrama.  It’s a legal tool.  No more, no less.  In this case, it’s a way to have an educated and neutral third party (a judge) decide which interpretation of that legal document is more nearly correct. 

Rather than have a bunch of amateurs, some of whom have vested interest, try to hack their way to some decision, based on (e.g.) a single interpretation of the wording of a document, you put it in front of somebody who has seen hundreds or thousands of such disputes, have each side put forth their case.  And have a seasoned, experienced, and neutral expert decide the matter. 

There’s a genuine dispute over this legal document.  The right and professional way to resolve that dispute is through the legal system.  And the way you do that happens to be called “a lawsuit”.  Gasp.

To put it in a nutshell, the one Town Council candidate who’s actually a lawyer looked over this dispute over a legal document and said, this should be resolved in the legal system.  And that remedy he’s suggestion is called a lawsuit.  Makes sense to me.

Lawsuits are expensive.  But in this case, the amount of money at issue is large.  And, as a person who has litigated professionally, and read the language of the document, that candidate (Patariu) judged that the likelihood of freeing up substantial funds more than offset the probable cost of the lawsuit.  And so, his informed professional opinion is that it made sense to sue.

Point 3:  My opinion doesn’t matter.  I’ve heard bits and pieces of this document, and I have an opinion.  It’s based on what little work I did in helping draft and review legislation, early in my career.  My opinion is that Maud Robinson wanted the money used for the construction of sidewalks (the things we walk upon), knowing what that entailed.  I believe the phase was something like “to the extent possible”, so she made it clear that they were not to stint on the use of the funds.

She didn’t leave a tiny amount of her fortune, for a few narrowly-construed and essentially randomly-chosen low-demand sidewalks.  She left a large amount of money, with the explicit instruction to use it to build sidewalks to the extent possible.

The only thing she specifically barred was use of the funds to build low-quality pathways or “trails”.  (Which I view as things that aren’t really permanent, which fits well into a bequest.)  And she wanted her money’s worth, so she required that the Town contract out this work, and required a standard maintenance-of-effort clause so that the Town could not just substitute this money for money they’d be spending anyway.

As I see it, any interpretation that result in using a few pennies on the dollar, to build a few sidewalks by the luck of the draw (those few roads with existing curb and gutter but no sidewalk), is just not plausible.  If that had been the intent, why on earth commit what might plausibly be her (and her late husband’s) entire life’s fortune to that?

Separately, I have a word for what I think was intended.

In healthcare law, and in particular, the Medicare program, they have what’s called the “incident to” rule.  Legally, Medicare Part B mainly covers physicians’ services.  But that has been construed to include anything “incident to” physicians’ services, that is, other goods or services that must be used to allow physicians to provide those services.  Things without which the physician can’t actually provide the medical services to which Medicare beneficiaries are legally entitled.  Things that, if not covered, would effectively thwart the intent of the Congress in covering physicians’ services in the first place.   Things covered as being “incident to” physicians’ services include separately-billable items such as (e.g.) technical costs of X-rays, lab tests, sterile surgical trays, splints, dressings, drugs that can only be injected or infused in the physician office, and so on and so forth.  All the things without which, covering the services of the physician, in the office, would be a hollow promise.

Coming from that background, that’s how I view this.  The intent of the document was to produce as many new permanent-things-that-pedestrians-may-walk-upon as possible.  And so that covers not just the literal flat thing you walk on, but all the items “incident to” the sidewalk.  All the things that, without which, the offer to produce sidewalks is a hollow promise.

But, you know what?  Here’s why this needs a lawsuit.  My opinion isn’t worth spit.  I like my opinion.  But it’s the ignorant opinion of a non-lawyer, regarding a dispute over a legal document.  Relying on my opinion is a half-baked way to resolve this.

And so, in my last post, I thought it made a lot of sense to handle a legal dispute, over a legal document, regarding a large sum of money, through the legal system.  Even if that process requires a word — lawsuit — that people find distasteful.

Point 4:  The legal impediment is what matters.  Finally, as I said in my prior post, I dismissed this as a lost cause a year ago.  The window for using that money is closing.  It was obvious a year ago that the Town was only going to spend the tiniest fraction of it.  Town staff are doing what they can, given the legal impediment to using the funds.

I haven’t written about it since, because there was no point.  It was clearly a lost cause as of a year ago, and the Town was going to do the best it could to use a tiny fraction of the money, given the executor’s interpretation of that legal documents.

But now there’s a new development.  Somebody finally spoke up and said that it’s worth the investment for the Town to try to remove that legal impediment. Which, in hindsight, seems pretty obvious, but I never would have thought of it.

If you can’t remove that legal impediment to use of those funds, any further discussion of this is moot. The Town’s current plan is as good as it gets.  Anything more than that, based on this bequest, is a fantasy unless and until that legal impediment is removed.

And when I finally saw one guy talking reality, instead of fantasy, I thought that was worth writing up.

Mea culpa.