Never ending contracts

There have been some claims in comments to other posts that the lifetime contracts which Mr. Miller signed with town employees were not lifetime contracts but merely had "just cause" language as many contracts do. That statement is patently wrong. The contracts had language which said the term renewed automatically. Here is what was in the contract.

10. RENEWAL:
This agreement shall be renewed under the current terms, except for “good cause” as defined in the Dartmouth Town Charter, Section 6-9. The EMPLOYER is under no obligation to renegotiate over changing the terms of the agreement. However, in the event that this agreement is re-negotiated to completion prior to, but not executed by, the expiration date of this agreement, the EMPLOYEE shall continue employment under the full terms and conditions of then-expired contract until such time as the new agreement is executed. EMPLOYEE shall be entitled to retroactive payment of any salary and/or benefit increases which occurred due to the late execution of the agreement. It is understood, however, that if the parties do not settle on the changed terms of the successor agreement prior to the expiration of the most recent contract, retroactivity will only be applicable if the parties agree to it as part of their negotiations, and shall only go back as far as the parties agree.

In legal terms, the word "shall" means "must be". The contract is endless under this wording. But there is more. the contract also stated the town must budget for the job ...

... and if the Town Meeting didn't fund it, the town must offer the person another job at the same pay. Here is the wording.

For purposes of this agreement, the phrase “subject to the availability of Town appropriations” shall be understood to mean that the TOWN will make every reasonable effort to secure the necessary appropriation to fully fund this position. The Select Board will have an affirmative duty to budget for the position and to speak in favor of funding this position in total. It is also understood that if layoffs or staff cutbacks are needed in the Town, this EMPLOYEE’S position will only be decreased or eliminated after the Town has already undertaken to decrease or eliminate other positions which add up to the amount of the annual salary of this position first. In the event that the funding for the position of EMPLOYEE is not appropriated or is otherwise decreased or eliminated during the life of this agreement, it is further understood between the parties to this Agreement that EMPLOYEE will be offered another management position in Town, if any exists, as determined by the Executive Administrator, for the same pay and benefits which inure to him/her under this Agreement, for the remaining duration/term of this written agreement.

As I pointed out, the term is forever. This clause makes the pay and position guaranteed. Attorney Bartulis, who drafted the contract said,

"Assuming this same language was in a number of different contracts in the Town, the Town could have a staff of potentially over-paid individuals doing less important management jobs, conceivably, just because the Town agreed not to let them go without just cause. Virtually every contract, even the union contracts which afford just cause protections, have management escape clauses which afford the employer the ability to terminate an employee at-will for lack of work, etc., as determined by the employer. This one does not."
When Attorney Bartulis met with Select Board members, his notes show that Bob Miller was one of two members who attended the conference about the contract language.

Bev Days also wrote a letter in today's Standard Times on this subject. Link to that letter here (subscription required).
My view is that these never ending, guaranteed contracts were a breach of the public trust. The Select Board should protect the interests of the taxpayer, not town employees, when negotiating contracts.
I have posted extensively about what went on with the lifetime contracts and if you want all the details click on "contracts" under the LABELS menu on the left side of the page.
What do you think?
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More on perpetual contracts, the never ending story.

Despite the notoriety and attention focused on the now infamous self renewing contracts provided to some town employees as I posted about here, here and here, there is still more to this story.
A brief recap is in order. The Municipal Paralegal had a contract drawn up by a Boston law firm which inserted job and salary protection language into the contract. That contract language has been characterized as not in the interests of the town. Nonetheless, the Select Board at the time signed off on these contracts. The new contracts were signed in 2006, in the middle of the term of the existing three year contracts, superceding them.
Now it has come to light that an addendum to the Municipal Paralegal's contract was signed in 2007, a year after the new contract was signed. This contract addendum increases a stipend that is paid to the Municipal Paralegal and seeks to further restrict the Town's ability to adjust pay and duties. This addendum was not signed by the Select Board ...

... but only by the Executive Administrator, Budget Director and the Municipal Paralegal.
The Finance Committee have looked into the pay received by the Municipal Paralegal and the numbers never seem to add up. For instance in 2008, the Standard Times website lists the compensation received by the Paralegal as over $80,000. The information presented at that time was that the Paralegal was paid about $68,000. Adding the $8,000 provided by the addendum brings the total to $76,000. Recently, I learned that overtime is also paid to the Paralegal from the grant funds. It seems that would explain where the additional $4,000 came from. Why overtime is required to administer a grant is a subject to be explored further. Perhaps that is a task for Mr. Cressman when he starts in October.
At the Town Meeting in June, there was some discussion about the pay of the Municipal Paralegal. The Finance Committee had voted to reduce the line item for the salary by 15% or about $10,000. The Town Meeting voted $3,500 to partially restore the cut. Article R of the draft warrant for the Fall Town Meeting has a budget supplement for $7,140.95 to restore the remaining funds.
The Select Board has declined to renew the contract of the Municipal Paralegal and it is unclear whether the automatic renewal clause has carried the provisions of that contract forward. It is also unclear, but, I think, likely allowed by the Town Charter, Section 4.4, that the Executive Administrator had the authority to amend the contract. Whether that is a preferable practice is another matter.
What is not in question is whether the Town Meeting has the authority to set the compensation of the Municipal Paralegal. We'll see what the Finance Committee recommends and the Town Meeting enacts.
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State GIC health Insurance?

Blue Mass Group has a discussion of the Massachusetts Teachers Association (MTA) tracking of activity by their locals in considering health insurance provided through the states Group Insurance Commission(GIC) program. This is just a slice of the total number of municipal employees who are eligible ...

... to switch to the state plan but, as the blog post points out, information is sparse on this issue. What seems clear is that municipalities are not bringing the issue to the table when negotiating with collective bargaining units.
Dartmouth has an opportunity to put the GIC switch on the agenda since nearly all our collective bargaining agreements are up on June 30th, 2009.
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Harbormaster term of office

Jackie B. emailed me with information to correct statements that I and some in comments have made that the Harbormaster has a lifetime appointment. Turns out I was wrong and Jackie had the scoop.
MGL Chapter 102, section 19 states,

"The mayor of a city, except Boston, or the selectmen of a town where a harbor is situated, unless otherwise specially provided, may, and for all harbors that have been improved by the expenditure of money by the commonwealth shall, appoint a harbor master and assistant harbor masters and fix their compensation,

The key phrase being, unless otherwise specially provided.
Jackie recalled a warrant article ...

... from the 2003 Fall Town Meeting which sets the term of the Harbormaster at three years. She was kind enough to forward me the wording which you can find at this link on page W2(E).(MS Word file)
Thanks for the information. Jackie.
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The never ending story (final emails)

The materials I have posted so far bring us up to Feb 9th, 2006. On that date, Attorney Bartulis met with two members of the Select Board, Ms. Copley, Mr. Gagne and Mr. Iacaponi. This link shows the emails that went back and forth following that meeting and up to the point where Att'y Bartulis forwarded the automatic protection language to the town along with caveats ...

that he didn't think it a good idea. The italicized blue wording at the link is mine and not in the original. The post about those warnings is here.
As you can see from the final email, even though the job protection clause ended up in 5 additional contracts besides Ms Copley's, Att'y Bartulis does not seem to have crafted those contracts. Which begs the question, who did? I know that it was not the Town Counsel and I asked Mr. Gagne who drafted them at a Select Board meeting but got no answer.
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Taxpayers file lawsuit regarding contracts

A group of taxpayers have filed a lawsuit asking the courts to declare the automatic renewal clauses in the contracts of some town managers are not enforceable. The text of the complaint, filed in Bristol County Superior Court, can be found here.
The complaint names the contracts of Michael Gagne, Edward Iacaponi, Doris Copley, Joel Reed, and Deborah Piva as those having perpetual employment clauses and asks the court to declare the contracts expired ...

... and continued payment under those contracts illegal. Massachusetts General Law chapter 40 section 53 is cited as the basis for the suit. That Chapter and section allow ten taxpayers to petition the courts to declare appropriations or obligations illegal.
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The never ending story (email edition)

Today's edition consists of email between the Dartmouth paralegal and Attorney Bartulis and his first attempt at contract language leading up to the Feb 9th meeting in Dartmouth which I posted about here.
Apparently the town had some communication problems which prevented the emails and contract language from getting through until Feb 7th. I posted the Feb 6 emails here, the proposed contract language here, and the Feb 7 emails here
Even at this time, Att'y Bartulis was warning that ...

...this language was unusual. He says on Feb 7,

"While I am usually in the position of affording management, not the employees, with the most protections, and while I am not usually asked to bind a Town with more restrictive contractual language, since you have indicated that the Select Board wants to accommodate your concerns regarding funding, just cause protections, negotiable wages and job security, I have drafted some clauses which you and the Board might find useful to meet your shared objectives."

Another interesting point is that the contract provision requiring the EMPLOYEE to give the TOWN 90 days notice if the employee wants to end the agreement didn't make it into the final wording.
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The never ending story (Paralegal involvement)

UPDATE - I have fixed the link to the 12/21/05 letter
One curious aspect of the story is the involvement of the municipal paralegal throughout. In the packet of materials that I received, most of the correspondence was from or about the paralegal. I am more than a little puzzled why so much time and attention was devoted to the contracts and work situation of this one employee. The correspodence with the earliest date in the packet is a memo from the paralegal to the Executive Administrator where she appears to be inventing a new job since the Town Counsel no longer needed her services or she no longer wanted to be paralegal, I can't tell which it is and have no first hand knowledge...

... of any of the circumstances involved. This memo and many of the others just seem to me to have an odd tone about them. The May 30, 2003 memo can be seen here
It appears to me from the correspondence that the paralegal was unable to convince the Personnel Board or Finance Committee that her job was new and different and warranted a higher salary.
I do know from personal experience some of the next part of the story. As a Town Meeting member in 2005, I was somewhat perplexed to find an article on the warrant which was sponsored by the paralegal and sought to reclassify her job salary range from the one published in the bylaws to negotiable. The article failed at Town Meeting. That ends my personal knowledge of the story.
Which brings us to the next two pieces of correspondence, a letter on November 17,2005 asking for permission to have Attorney Bartulis draft new contract language for her contract. Handwritten on the bottom of the page it says, Permission granted by unanimous vote of the Board on 11/21/05
Next is a letter to Attorney Bartulis from the paralegal dated December 21,2005, While the letter says it is regarding several positions, it seems to me to be about only one, the paralegal. It is also odd that the Select Board is trying to find a way to bypass the Town Meeting and bylaws if in fact that is what happened.
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Jack Spillane on Chutzpah

Chutzpah is the title of Jack Spillane's blog post on Mr. Gagne. Link to the post here. Looks like Mr. Spillane doesn't get many comments on his blog or he chooses not to allow them. Don't know which. In any case, he seems to be a more active blogger than Curt Brown. Check it out.

All politics is local is a quote from the late Speaker of the House, Tip O'Neill
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The never ending story -partie deux

Having presented the letter from Attorney Bartulis where he questions the wisdom of the employee protection clauses, I would like to present the text of those clauses. You can find them here.
Some people have asked in comments to the first post for the notes on who were present at the meeting mentioned in the letter. Attorney Barulis' notes from the February 9, 2006 meeting can be seen here. (I added the highlight.)
You will notice that Att'y Bartulis is providing these contract changes to the Executive Administrator while corresponding with Ms. Copley, not the Executive Administrator or Select Board members. This can be confirmed by emails which I will publish in future posts. These changes were not in the town's interests but in that of the employee. Nonetheless, the town was paying Att'y Bartulis to draft them, not the employee who will benefit from the changes. Certainly employees can and should have an attorney help them draft contracts to present to the town ...

... but they should pay for it, not the town. Having the taxpayer pay for contracts which are contrary to their interests is adding insult to injury.
The portion of this contract language which I find as egregious as the automatic renewal is this

“For purposes of this agreement, the phrase “subject to the availability of Town appropriations” shall be understood to mean that the TOWN will make every reasonable effort to secure the necessary appropriation to fully fund this position. The Select Board will have an affirmative duty to budget for the position and to speak in favor of funding this position in total. It is also understood that if layoffs or staff cutbacks are needed in the Town, this EMPLOYEE’S position will only be decreased or eliminated after the Town has already undertaken to decrease or eliminate other positions which add up to the amount of the annual salary of this position first. In the event that the funding for the position of EMPLOYEE is not appropriated or is otherwise decreased or eliminated during the life of this agreement, it is further understood between the parties to this Agreement that EMPLOYEE will be offered another management position in Town, if any exists, as determined by the Executive Administrator, for the same pay and benefits which inure to him/her under this Agreement, for the remaining duration/term of this written agreement.

Bold emphasis added by me
Those who say these contract don't tie the hands of the town, please note that future Select Boards are to have a contractual DUTY to speak in favor of the funding. Then the town must still pay an equal salary even if the job is not funded by Town Meeting.
I am astounded and outraged to this day that five individuals who presumably should have been watching out for the taxpayers interests could think that language was a good idea. What do you think about it? Tell us in comments.
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The never ending story (employee contract edition)

I want to start out my series of posts with a letter on February 23rd, 2006 from Attorney Bartulis to the Executive Administrator, Micheal Gagne. Mr. Bartulis had been in a long correspondence with the Dartmouth town paralegal, Ms. Doris Copley, about her employment contract. First, let me point out that although the town was paying for Mr. Bartulis, as you will see, he was asked to present contracts which favored the employees. Most of the corerspondence was directly with Ms Copley. The executive sessions minutes for the Select Board only mention discussion of these contracts by the Board twice, one of those being when the contracts were signed. The two Select Board members that Att'y Bartulis mentions ...

... in the Feb. 23rd letter are Mr. Robert Miller (currently running to return to the Select Board) and Ms. Natalie Dias (Ms. Dias has denied being at this meeting but Att'y Bartulis' notes put her there).
Attorney Bartulis warns against including the automatic renewal langauge in the employee contracts. Attorney Barulis notes,

"Assuming this same language was in a number of different contracts in the Town, the Town could have a staff of potentially over-paid individuals doing less important management jobs, conceivably, just because the Town agreed not to let them go without just cause. Virtually every contract, even the union contracts which afford just cause protections, have management escape clauses which afford the employer the ability to terminate an employee at-will for lack of work, etc., as determined by the employer. This one does not."

As we know that warning was ignored and the contract for Ms. Copley and others were executed with wording similar to what Att'y Bartulis provided.
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