For those of us who have followed the Mary P.C. Cummings Trust over the years it has always been some what of a mystery as to what exact plans Boston had for the property. There have been rumor after rumor of developers meeting with attorneys to make proposals for the acquisition of the property but nothing concrete has ever been made public.
It has also been mentioned on numerous occasions that Boston would make use of a Cy Pres motion to attempt to break the trust in court. Any mention of this has resulted in calls to the attorney generals office, state representatives and senators to request that Burlington be made aware of any actions by Boston relative to the property. This has also been a standing order to the office of Kopelman and Paige, Burlington's town counsel.
Against the backdrop of these numerous requests it was some what shocking to see what has recently been found by 2 concerned citizens who made a public records request at the attorney generals office to look at all the files related to the Cummings Trust.
In those files appears an actual prepared filing for a Cy Pres suit against James Shannon, then Attorney General of Massachusetts. From the dates on the proposed consent decree and the dates during which Shannon served as attorney general it would appear that this document was created in sometime during 1987.
This came as quite a shock to me since I had served on the board of selectmen during the years of 1983 through 1990 and had never seen this document before nor was I ever notified of its existence. Just to make sure I wasn't suffering from memory loss I made a public records request to view Burlington files on the Cummings property. As I suspected there was no copy of the document in the files nor was there any reference to it that I could locate.
This brings up a number of questions that I sent (along with the hard copy of the filing for the public record) in a note to Town Administrator Robert Mercier. I have included a couple of passages for your review;
"My purpose in viewing the file was to determine whether or not there was any reference by town counsel, former special counsel Francis Bellotti or anyone else to the copy of the Cy Pres suit that has been recently uncovered at the attorney general's office. As you know, the town has had a very keen interest in this property over these many years and I am greatly disturbed to find Boston's complete strategy behind breaking the trust has been laid out in complete detail and apparently resting at the AG's office since 1987".
"How is it possible that after years of repeated requests to the AG, town counsel, state reps and state senators that this could exist without our knowledge and not be in our files? How is it that a non-resident, concerned citizen is informing us of information that we should have at our finger tips? I would be interested to hear town counsels explanation of this. Just as importantly is the fact that no one seems to know what happened to the suit. Was it filed or not? Was any kind of decision rendered? If it was not filed how did it come into the possession of the attorney general? Why didn't the attorney general notify us of its existence? What was Boston's reason for withdrawing or not filing it? Does town counsel know if it is going to be filed?"
In any event the most important aspect of this whole SNAFU is that Boston's intentions as well as the strategy is clearly laid out in this 19 year old document. How Burlington and Woburn prepare for it if it is resurrected and filed in court is now the question. Since Kopelman and Paige is now town counsel for both communities and given the fact that this item was hidden right under their noses all these years, forgive me if I am skeptical about the prospects of a vigorous and informed defense.
In any event the following is the proposed decree that Boston asked for in the suit if they were to prevail. Remember please that no one that I have queried seems to know if Boston actually did file the suit.
At a Probate Court held in Cambridge, Massachusetts, in and for County of Middlesex, on the________day of __________, 1987.
On the petition for CY Pres regarding the testamentary trust created by the will of Mary P.C. Cummings and after hearing IT IS DECREED:
1. That the Court authorizes the formation of the Cummings Foundation, Inc. a public trust.
2. That the purpose of said Foundation will be to finally implement the intent of the testatrix as stated in the will specifically to establish "public pleasure ground" for the citizens of Boston, I.E. a country club for the poor. (note: This is somewhat laughable since Mrs. Cummings left the property and money in trust to Boston to accomplish this 60 years ago at the time of the creation of this document. Citizens of Boston is not mention in her will).
3. That the Trustees of the Cummings Foundation shall have the rights and obligations normally accorded to the trustees of charitable trusts; whose duty it shall be to oversee and monitor Trust fund investment; implement and acquire property, both real and personal, in accordance with the intent of the testatrix (note: the testatrix never inteded the trust to acquire property) and to conduct those activities pursuant to those duties accorded a "prudent trustee". (note Boston's defintition of a prudent trustee is in question here based on their performance over the years)
4. The Trusteees agree that they will not inveat in any below investment grade bonds, commoditites, trading in securitites on margin, Real Estate Investment Trusts, investmetn in working interests inoil/gas well, purchasing puts, calls and/or straddles; purchase of warrants; selling short or the purchase of any "senior security" or leveraged investment as defined by Section 2(a) (36) of the Investment Advisors Act of 1940.
5.That the Board of Trustees shall be appointed ex-officio and serve without compensation. The Board shall consist of the following members:
a. As chairperson, the Mayor of the City of Boston.
b. The Parks and Recreation Commissioner of the City of Boston.
c. The Collector-Treasurer of the City of Boston.
d. The President of the Boston City Council.
e. The Director of the Boston Sportswriters Association
f. The Director of the Boston Society of Landscape Architects.
6. That if by reason of abolition of any one or more of these officers or the declination or resignation of any one or more of these persons holding them thereby resulting in a temporary vacancy(ies) such vacancies shall be filled by the remaining members of the Board, by the election of a peron(s) whose respective postions and duties shall, in the opinion of the Board, most nearly correspond therewith.
7. Authorizing that the Executive Director of the Cummings Foundation shall be the Executive Secretary of the City of Boston Trust Office, unless, by a majority vote, the Board of Trustees shall determine otherwise. The Executive Director, as directed by the Trustees of the Cummings Foundation, shall have the authority to hire staff, contractors and purchase other goods and services wich will asssist in the performance of the goals of the Cummings Foundation.
8. Authorizing that the trustees to establish three seperate funds, each of which shall contain 33 1/3% of the total net proceeds derived from the sale of any and all of the Cummings Estate Properties. All cash assets held by the Trustees at the date of the entry of this decree shal also be divided and placed using the aforementioned percentages in each of the three funds. The three funds shall be established solely for the following purposes:
Fund A: To purchase real property within the City of Boston which shall be used exclusivley to create new parks. the parks shall be open at no charge to the public in perpetuity, and shall be designated as Mary Cummings Parks. The types of parks that may be created under fund A shall include, but not be limited to: parks of the type already existing throughoout Boston, parks on the grounds of newly-built housing developments, as well as public gardens, greenhouses and arboreta.
Fund B: To develop and construct recreational facilities in parks created under Fund A and in already existing parks within the City of Boston.
Fund C: As an endowment fund, the principal of which shall remain invested for five years from the date of the Foundation's legal exitence. The principal shall be investd at the discretion of the Executive Director subject to approval of the Trustees. Income of Fund C will be expended for the purpose of supplementing the support, maintenance, and refurbishing of parks and recreational facilities created by Funds A and B. However,under no circumstances shall Fund C be used to replace, substitute or otherwise supplant City of Boston general fund appropriations for Parks and Recreation purposes pertaining to areas applicable to to Funds A and B. Fund C may be utilized solely for the extraordinary expenses not normally included in the City budget inuring to the benfit of such projects previously established by monies from Funds A and B respectively.
9. That the Executive director shall maintain the financial records and accounts of the trust.
10. That an annual account of the Trust shall be rendered by the Executive Director duly audited by an independent auditor, signed and sworn to by at least a majority of the Trustees and that same be availabe for the public inspection.
So there you have it. At the time Boston wanted the property to be liquidated and placed in public trust to finally accomplish the goals of Mrs. Cummings. Essentially they were asking to do the same thing that Mrs. Cummings had already created and entrusted them with over 70 years ago. Their own filing indicts them on failing to meet the terms of Mrs. Cummings instructions.
