I want to present some of the legal background for the current controversy about the executive administrators contract. I need to point out that I am not an attorney but this is what I have gleaned from various sources. The Select Board has had legal advice on this matter and was advised that we were within our rights to take the action that we did. That doesn't mean there will not be a suit, just that there is a legal basis of argument for our action.
Massachusetts General Law has a specific section dealing with the contract of town executives, MGL 41, section 108N . Here are a few excerpts from that section
"any city or town acting through its board of selectmen ... may establish an employment contract for a period of time ...for its ,,, town administrator"That section also says, ...
...MGL 41, section 108N
"Said contract shall be in accordance with and subject to the provisions of the city or town charter and shall prevail over any conflicting provision of any local personnel by-law, ordinance, rule, or regulation."and
"Nothing contained in this section shall affect the appointment or removal powers of any city or town over its ... town administrator, ... nor shall it grant tenure to such officer"The Dartmouth Town Charter(MS Word format) says in Section 4-4,
"An executive administrator shall be appointed by the select board for terms not to exceed three years. During the term of appointment the executive administrator may only be removed for cause after notice stating the reasons for removal, with the right to a hearing, and by a vote of at least three members of the select board."And in section 6-9, the Charter states,
"Any appointed town officer ... whether appointed for a fixed or an indefinite term, may, for good cause, be suspended or removed from office, without compensation, by the officer or multiple member body which appoints such officers ... The term cause shall include, but not be limited to the following: incapacity other than temporary illness, inefficiency, insubordination and conduct unbecoming the office"and from the same section,
"Nothing in this section shall be construed as granting a right to such a hearing when a person who has been appointed for a fixed term is not reappointed when a fixed term expires. "The executive administrator's contract has these provisions,
"4. RENEWAL:The contract language seems to conflict with both Mass General Law and the Town Charter as to the term of appointment, tenure, and the rights of the Select Board to appoint the executive administrator.
This Agreement shall be renewed under the current terms except for ‘good/just cause’ as defined in the Town Charter, Sec. 6-9. In the event this agreement is re-negotiated but not executed in a timely manner by the TOWN through no fault of the EMPLOYEE, the EMPLOYEE shall continue employment under the full terms and conditions of her (sic)last agreement until such time the EMPLOYEE receives an executed copy of his renegotiated agreement. EMPLOYEE shall be entitled to retroactive payment of any salary and/or benefits increases due to late execution of agreement.
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46 comments:
Bill, Not only does the infamous clause that was put in the contract by Bob Miller and Bob Carney conflict with state law and the charter, it is in conflict with the contract itself. The contract states that "Whereas, the personnel position of Executive Administrator is appointed by the Townf of Dartmouth Select Board pursuant to Chapter 6 of the Acts of the General Court for 1989 and is subject to supervision of the Executive Administrator pursuant to chapter 258 of the Acts of 1992 of the General Court; AND REGULATIONS OF THE TOWN CHARTER.
Yes, this clause with Miller and Carney's fingerprints all over it, is turning into quite the fiasco.
What is the purpose of Monday's meeting other than to have both supporters of Mr. Gagne and supporters of the Select Board heard? What is this "'curative effect'" Mr. Michaud referred to? Are we going to listen to everyone vent? What a waste and why put Mr. Gagne through that? For that matter, why would he want to go through it? Whose idea was it, and is Mr. Gagne okay with it?
Why not wait for Mr. Sutter's decision as to whether Mr. Gagne is entitled to a hearing or not.
And in section 6-9, the Charter states,
"Any appointed town officer ... whether appointed for a fixed or an indefinite term, may, for good cause, be suspended or removed from office, without compensation, by the officer or multiple member body which appoints such officers ... The term cause shall include, but not be limited to the following: incapacity other than temporary illness, inefficiency, insubordination and conduct unbecoming the office"
If this is what the Select Board is hanging its hat on, I'm very surprised. There is no incapacity, there is no insubordination, and there is surely no conduct unbecoming the office. That leaves "inefficiency."
I defy anyone to be more efficient that Mr. Gagne given the constraints he works under.
If the Select Board does not reconsider its vote, Dartmouth will get a different Executive
Administrator . . . they won't get a better one.
Bill, I'm no lawyer either and I really hope it does not come down to a bunch of attorneys battling this out-does not seem to be in anyone but lawyers interest to do that.
I never thought of this matter in a legal light, more of what was the right thing to do and if this non-renewal was determined to be the right thing how best to go about it so that a loyal employee of 22 good years is treated with dignity and respect and the citizen's of the town know the reasons for such a drastic action. I fear that the SB in it's haste has not acted in anyone's best interest and now we aare in for distatful and divisive course for the forseeable future. Could this all have been avoided i wonder?
To Disappointed. One more time. Michael Gagne has not been suspended or removed. The sentence in the section of the Town Charter you failed to mention reads as follows: "nothing in this section shall be construed as granting a right to such a hearing when a person who has been appointed for a fixed term is not reappointed when a fixed term expires". Michael will finish the term of his contract which means he is not entitled to a public hearing. There will be a public vote taken at Michael's request and the public will be allowed to comment but this is not to be mistaken for a just cause removal hearing.
To Anonymous 6:26. The SB tried to not reappoint with dignity and respect through the executive session process. However no good deed goes unpunished. Someone leaked the information before the process was complete. Michael himself was the first to talk to a reporter about it thus giving up his right to privacy. The end result is the circus that has been unfolding.
A fifteen minute executive session meeting to determine to not to renew does not seem to me at least a respectful treatment of this long term employee. That it appears to have come out of the blue is an issue for me too. That's just as I see it I guess right or wrong.
Fifteen minute executive session? The three have been working closely with Mr. Gagne for 1,2,and three years respectively. To say it was a rash fifteen minute decision is absurd in my opinion. Is the entire decision making process for every vote to be timed by the length of the meeting in which the vote is cast?
I think it's unfortunate that all concerned did not simply refuse to comment on any aspect of the situation, partly because the information was not yet legally accepted for public knowledge, and partly out of respect for Mr. Gagne. I think the public would have understood a "no comment at this time" from involved individuals, particularly since no comment could be legally made, and respected that. Now we have an opened Pandora's Box, and division once again fomenting in Town, just at a time when it seemed government/school and the public were beginning to work together.
As was stated earlier, Mike Gagne was the first to talk about this to the press before the process was complete. He WANTS this to turn into a three ring circus because he hopes garnering support from enough people who feed from the tax dollar trough will pressure one select board member to change their vote. At the very least, he hopes that this will be damaging to the reputation of the three true leaders on the board. Frankly, I think it shows his lack of self confidence to move on.
I'm just surprised that there is going to be this "unofficial" meeting when there really is no reason for it, other than someone wants it. Since when does the public have to have a say in what the SB's decisions are, in the hope a decision can be reversed? It seems like a travesty on their authority, not to mention on the policy of majority opinion rules.
Just my opinions, though.
Anonymous 7:50 (who has authored an untold numbeer of previous posts) really gets his or her shorts in a knot when we don't aknowledge his/her superior understanding of the situation. LOL
The fact is, the Gang of Three handled this horribly. I can only surmise they hoped Mike would go away quietly, which he has not. Good for him. He's a good man and deserves to be treated in a fair and just manner. I applaud him for holding the Gang of Three's feet to the fire.
The Gang of Three have royally screwed Mike Gagne and the Town of Dartmouth. They may win this battle, but they'll lose the war. I have no respect for any of them. And I'm not alone in that regard. In fact, they've seriously damaged any opportunity for future political aspirations. That's the only good thing that will come from this.
When things are still bad this time next year, and the year after that, you can bet spineless jellyfish such as Anonymous 7:50 will find other ways to rationalize their ill considered opinions and actions. And, you can be sure they'll find someone to blame. Because they will never accept one iota of responsibility, themselves. Imagine the liklihood (or lack thereof) of Anonymous 7:50 ever admitting to being wrong. No chance. People like that find scapegoats. People like Michaud, Trimble and Gilbert. Just ask them... they're never wrong!
This whole thing makes me sick. A good man who has done nothing short of a great job gets screwed by the likes of these three hacks. Dartmouth isn't the same community it used to be. With this kind of new "leadership", you can have it!
I'm so sorry for you, Mike. You've done nothing wrong. To the contrary, you've been an outstanding public servant for the Town of Dartmouth. There's an old saying that is apropos in all of this: Don't let the bastxxxs get you down! Thank you for all you have done. And, I'm sorry these three Select Board members treated you so poorly. I wish you nothing but the best.
to anonymous 8:30, I was wondering how long it would take for you to lose it.
Where do I get a job as a "servant" for $119k per year?
Now let me get this straight: Two weeks after taking a 3/2 vote not to renew Mr. Gagne's contract as our Executive Administrator, the Select Board is now open to allowing discussion on Monday night? How very kind of them. Is it just me, or does it seem that discussion and input from the public would have been more useful and appropriate BEFORE a vote was taken?
And the meeting on Monday night, Dec. 1st, at 6:30 PM, is just a discussion, and not a "public hearing" after all. The discussion about Mr. Gagne's dismissal, and it is a dismissal, because the vote that the Board took will end a twenty-two year career effective Feb 28th, is right up there on the agenda with paper streets and dog kennels, right? I mean, no big deal. They'll just jam it in there like the "discussion" was some kind of afterthought.
So now the SB wants to hear from the public? Do they really? And following the discussion the Board plans to take (another) vote. Nice. Just don't get your hopes up Dartmouth residents. Here's what the three Board members who voted NOT to renew Mr. Gagne's contract said to the Standard Times five full days before the Dec 1 meeting:
. "I haven't heard anything to change my mind, said Mr. Michaud, Chair of the Select Board.
• Mr. Trimble said, "I see this as being like instant replay. Unless we see incontrovertible evidence, the [previous] vote will stand."
• And my personal favorite, when Ms. Gilbert was asked if she might consider changing her vote after hearing from residents; "Absolutely not. When I vote on something, I mean it. This decision belongs to me and I'll live and die by it."
Three very confident and settled positions by three of our Select Board members that begs three questions from me:
1.The overwhelming majority of residents who have weighed on this issue do not agree with the SB majority, so just who are they representing? Themselves?
2. Why is the majority of this Board so afraid to grant Mr. Gagne a full-fledged, professionally courteous and legitimate public hearing?
3. If their minds are already made up, why even bother to waste everyone's time by placing this on the agenda?
If this is an example of the "new direction" and leadership that Select Board Chairman Joseph Michaud has in mind for Dartmouth residents, we should be very alarmed indeed.
Kevin Lee
Kevin Lee, a town employee, violates the secrecy of a executive meeting, whips up his friends and other town employees, instigates in the press, and now doesn't want a public hearing of the other side. The Select Board are secretive, cowardly, rude, stupid, they whine. We'll see who comes off looking stupid on Monday night. Look Mr. Lee, this is what you have agitated for. The SB will speak and vote. You and the S-T will get your answer. END OF STORY
Kevin, point by point
1. the OVEWHELMING majority of residents that I speak to support this decision.
2. No matter how many times the rules of the charter are explained, you refuse to recognize what the proper process in this matter is because it doesn't suit your agenda. They are following proper procedure according to the charter.
3. They are placing this on the agenda because Mr. Gagne wants the vote taken in public and they are respecting his wishes.
Just went on Mr. Lee's web site to see what the masses of people he claims do not support the select board on this issue have to say. There are a grand total of eight entries. Vocal minority indeed!
I know of several people who wrote letters to the editor in support of our select board but the standard times hasn't printed them.
One more time Mr. Lee. Michael Gagne is not entitled to a public hearing because he has not been fired. Reading comprehension does not seem to be your forte'.
Is this the new direction? Yes, and it is long awaited!
As for the Standard Times. It seems they are only printing one side of this mess. I have seen copies of several letters in support of the SB that have been submitted but not printed. When it comes to the ST and its obvious bias concerning Dartmouth politics, some things never change.
Support for Michael? Not from what I've heard in town. No one is worried about Dartmouth falling into the ocean again without him.
Ahhh... more censorship. Nice touch, Trimble.
You gotta love someone who claims to have seen several unpublished letters to the editor. What did the writers of those letters do, bring them over to your house to let you read them? Or, perhaps they carried copies around with them just in case they bumped into you. LOL I mean, really, Michael... think before you write.
P.S. The last time I posted this, Trimble deleted it. So much for open government and promoting dialogue!
The executive town administrator is an appointed position. The position is that of a three year contract employee. Can you take that person who is not an elected official and hold them accountable at a public meeting. A town administrator who oversteps his or her job helps the elderly, picks up debris on the street, washes floors at the town hall etc.and makes themselves invaluable is this what they were hired for ? Would some town departments feel that the administrator was interfering with their departments? Who without an attorney could say anything detrimental at a public meeting without their own attorney?
Anonymous 8:15. Are you related to Ed I.? He doesn't understand emails or the internet either. Let me explain. You can send a copy of anything to someone else via the internet. It's an amazing way to communicate with others.
Ahhh... so you're part of an organized letter-writing campaign to discredit Mike Gagne. I suspected as much, but hesitated to make such an accusation without knowing for sure.
Imagine, a group of people in Dartmouth ("several") conspiring and communicating with each other in an organized effort to write letters to the newspaper with their goal being to have Mike Gagne lose his job. That's remarkably shameful behavior. I hope no one ever does something like that to you or the others in your dubious group.
Mr. Lee and others already are. Shame shame shame.
Let's face it Kevin Lee, if the town does what it needs to which is cut, consolidate, and regionalize, you are high on the list to be eliminated. Your efforts aren't about Mike Gagne in the least. They are about saving yourself. Your comment in the paper about who knows who will be next, tells it all. Mr. Gagne is doing what he feels he needs to relatively quietly. You are agitating this into a circus for your own selfish reasons. Shame on you!
Does the current Select Board back the Massachusetts Municipal Partnership Act ?
http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20070524/NEWS/70524011
By Curt Brown
Standard-Times staff writer
May 24, 2007 4:54 PM
DARTMOUTH — Gov. Deval Patrick today offered his Municipal Partnership Act — a series of initiatives designed to provide new revenue streams — to cash-strapped Dartmouth, telling town leaders at a private meeting it is not the panacea to their financial problems, but it will help them.
The governor said his plan — which includes an attractive local 2 percent meals tax option for Dartmouth — will provide communities with some tools to stop their over reliance on the property taxes as a way to finance the costs of government.
“This will help you help yourself,” he told the city, town and state officials from Fall River to Fairhaven assembled at Dartmouth Town Hall.
He said the tools, though, will not negate cities and towns’ responsibility to steward the town’s taxes.
Michael J. Gagne, the town’s executive administrator, said the town’s Select Board is unanimously behind the local meals tax.
He said the Municipal Partnership Act will give “more Home Rule authority” to communities to control their own destinies.
Aside from the financial impact of the visit, the governor also gave Dartmouth some hope.
Mr. Gagne said it is the first time in his 26 years in Dartmouth government that a governor has visited the town to discuss a local issue.
“This is a milestone to bring the governor down to the Town Hall,” said Edward F. Iacaponi, the town’s finance director.
Contact Curt Brown at cbrown@s-t.com.
http://www.mma.org/index2.php?option=com_content&do_pdf=1&id=1772
To Anonymous 10:41: Organized letter writing campaign? And what do you call Kevin Lee's website???
No, we are not campaigning for Michael to lose his job. We are campaigning to support our SB.
Please feel free to organize a letter writing campaign against us. It wouldn't affect us in the least as we are not feeding from the tax dollar trough (nice analogy anonymous 11/29 7:50). Oink Oink!!!
To Anonymous 7:52.
I'm disappointed, but I'm not dense. As Mr. Trimble has provided in his post, the fact of the matter is that Mr. Gagne currently has a contract with a clause that has been found onerous by many which states:
"4. RENEWAL:
This Agreement shall be renewed under the current terms except for ‘good/just cause’ as defined in the Town Charter, Sec. 6-9. In the event this agreement is re-negotiated but not executed in a timely manner by the TOWN through no fault of the EMPLOYEE, the EMPLOYEE shall continue employment under the full terms and conditions of her (sic)last agreement until such time the EMPLOYEE receives an executed copy of his renegotiated agreement. EMPLOYEE shall be entitled to retroactive payment of any salary and/or benefits increases due to late execution of agreement.
One can clearly understand Mr.
Trimble's statement that: "The contract language seems to conflict with both Mass General Law and the Town Charter as to the term of appointment, tenure, and the rights of the Select Board to appoint the executive administrator."
So if this clause is onerous and is perceived not to represent the
Town's best inteest, negotiate it out of the new contract. Mr. Gagne can agree or not, stay or go of his own volition . . . don't throw the baby out with the bathwater!
Mr. Lee,
I wouldn't worry about losing your job to cuts and consolidations if I were you. They are looking for someone like you in Westwood. Below are the job responsibilities and the qualifications required. You do have these qualifications don't you?
Youth Services Counselor, Town of Westwood
Youth Services Counselor
Town of Westwood
The Town of Westwood is seeking a qualified Youth Services Counselor to provide professional counseling and consultative services to children, adolescents and their families, and administrative duties overseeing a children’s social skills group program as well as a high school volunteer mentoring programs in a team oriented, dynamic Youth and Family Services Department. Duties include: Provides direct counseling services to residents; provides counseling to individuals, families and groups; acts a liaison between clients and various agencies; Responsible for the planning, management and direction of the Westwood Mentors Programs; participates in the clinical supervision, training and evaluations of interns. All other duties as required. Qualifications: Master’s degree in counseling or clinical psychology, or social work and three years responsible experience in counseling/human service; LICSW/LMHC preferred. The qualified candidate will possess solid clinical skills and experience working with children and adolescents and their families. Experience facilitating social skills groups for children 6-11, parent support groups, and prior supervisory and training experience are desirable. Strong organizational and planning skills required with experience in program development and administration. Solid clinical skills, with concentration of knowledge in group counseling. Salary and Benefits: This is a full time benefits position; salary commensurate with experience, based on municipal pay plan. Send cover letter and resume to: personnel@townhall.westwood.ma.usThis email address is being protected from spam bots, you need Javascript enabled to view it or by mail to: Personnel Board, Westwood Town Hall, 580 High St., Westwood, MA 02090, postmarked by Fri., Dec. 12. (posted 11/25, exp. 12/25)
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Anonymous 1:59. Michael Gagne's contract is not being renewed because of this clause. His contract is not being renewed because the SB realizes this town needs to change the way it is conducting business. Nice guy or not, Mr. Gagne has not shown that he is capable of moving this town forward.
JDM and his brain trust are running things now. It may sound like it comes from a Select Board Member, but that's just the mouthpiece in this political ventriliquism.
In case you are unaware of the process it takes more than one person to make decisions on the Select Board. Ms. Gilbert has proven time and again that she is not influenced by outside forces but by what she believes is best for the town. She thinks for herself. Bill Trimble through this blog and town meetings has also shown that he is quite capable of rational thought and having his own ideas. These two people are not going to be run by anyone. I am assuming your post was not referring to Nathalie Dias or Bob Carney so that leaves Joe Michaud. One person and one person only. The SB's decisions are not made by one person so your insinuation that there is someone running things now other than the SB is ridiculous.
Thank goodness anonymous 9:47 that more people are coming to realize the role that JDM has played in Dartmouth’s fiscal and divisive disaster. Are you all paying attention as Dartmouth is and has been manipulated since the first organized Officer Mello override campaign by a man with a great deal of Dartmouth Property (well over 1M) and time on his hands? Look closely during the meeting this evening for the man who usually sits in the back of the room chewing on a cigar. Ask the SB chair about their relationship, but I doubt he will be willing to offer more but who knows what he may share if asked.
Who is the cigar-chomping mystery man?
Jim DeMello
You people make me laugh!! Why is it that you have to blame someone all the time. Decisions in Dartmouth have to be tied to some deep dark ulterior motive. NOT.
When you don't agree with someone, they must be evil. How sad.
Yeah - as much as I dont like the current situation it's reaching a bit to link it to one person and his tax bills. Not likely.
Perhaps if the Select
Board triumvirate had acted with transparency, people wouldn't be looking for sinister, back-room manipulators.
Interesting Kim, when the 3 SB members vote not to renew Michael Gagne's contract claiming we need to go in a new direction blaming him for all the Towns problems you cheer. But when Jim DeMello is finally called out as a coconspirator you call it placing blame. I think you type out of both sides of your fingers!
Excuse me 12:27, but who blamed Mr. Gagne for anything? As far as I am concerned, Mr. Gagne is not responsible for our fiscal crisis,but I do think it's time to move in a new direction with new leadership. I don't have to blame Mr. Gagne or anyone else. As Mr. Lynam wrote, "we need fresh eyes" and I agree. Mr. Gagne will have no problem finding another job with his expertise and will collect a fine pension when he retires. I have no ill will for Mr. Gagne.
The blaming that I have seen here has been going on with the people that think he had to have done something wrong if his contract is not renewed.
Dartmouth property worth well over $1 million? What is that in today's market? Not much. If the town of Dartmouth can be run by someone because they own a million in property then surely we must have a lot of people running the town. Just another ridiculous accusation.
Let's go on the theory that Jim DeMello is someone who believes Mr. Gagne should go. Guess what? There's probably about 20,000 more people in this town who agree with him. Yes, you have exposed a huge conspiracy and now you are trying to blame Mr. DeMello for the fiscal disaster in this town?
Why is it that when you should be asking for transparency as in the case of what our pension liability really is, you remain quiet but when the SB follows the rules of executive session to protect the privacy of employees you are up in arms?
A relationship between Joe Michaud and Jim DeMello? You are probably right. Mr. Michaud is a lawyer and Mr. DeMello a businessman. I'm sure they have crossed paths on several occasions. So what? Is this what it has come to? You will be tagged as underhanded if you associate with certain people who YOU deem are evil?
"New direction, new direction, new direction. . ."
Just what is this new direction? Until the triumvirate can articulate the specifics of this new direction, it will not be worth all the hot air that has been expended thus far. Furthermore, keep i mind that all that is new is not necessarily good.
The SB has been silent as explained over and over again because of the executive session policies. Once the matter at hand has been settled I'm sure we will get more details. For the sake of discussion I would imagine that the new direction will be consolidation, privitization and the elimination of certain positions. Sound scary? Not to the taxpayers. Businesses are streamlined everyday and the general public go about their lives without giving it a second thought. We recently made a major change in Dartmouth with the PAYT program. Sure there was some public outcry but I don't hear too much about it anymore. Change is never easy but you get over it and it is usually for the best.
The Hathaway Road Gang has been meeting for a couple of years. It isn't a conspiracy theory. It isn't made up. It just is what it is. But not to fret. They won't last long. Current events make that point crystal clear.
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