A different perspective l Council Corner

By Councilmember Richard Emery | Mar 20, 2019

I have delayed writing this letter because I believe that whatever we pay attention to gets bigger. But the issues discussed below have become larger anyhow, and it seemed time to present a different perspective on the concerns involving authorization of city contracts, the money involved, and conclusions of the state audit.

First, however, the councilmembers who brought the issue of where authority lies in negotiating severance agreements are to be commended for bringing that to our attention.

It is essential that the council, mayor, and city staff understand the roles, responsibilities and procedures necessary for the proper management of the city.

There were several ways council might have addressed and resolved who has the authority regarding severance and other employment contracts. I suggested that council collect all known city policies, procedures and delegation of authority; review them; make necessary revisions; and require all elected and department Heads read and sign them every two years.

It seemed this would ensure all those responsible for managing the city would know who was responsible for what; and would be familiar with all requirements and procedures.

Instead, it was decided that clarifying the lines of authority was not sufficient. The total amount of the contracts was determined to be $253,000 with an apparent assumption that, had council been involved, that money would not have been spent. A vote of no confidence in the mayor was passed, 4-2. After it was discovered that state law reserves authority for all contracts to council, unless otherwise delegated, the majority voted to spend up to $10,000 at the end of last year to hire an outside, independent attorney to start an investigation and explore options for legal action against the mayor. Finally, $30,000 more was allocated in the 2019 budget for the same purpose. Efforts by myself and two other councilmembers to delay this until after the audit exit Interview did not pass.

It is possible to see the goal of these actions to be, not just correcting and clarifying policy, but at getting rid of the mayor. Several councilmembers have suggested the mayor resign.

It is not generally the job of a council to remove an elected official, barring some seriously egregious behavior and an unwillingness to correct it. That is why there are regularly scheduled elections. Voters get to decide if they like the job that elected officials are doing. While the majority of council clearly believes the mayor misspent city funds, violated policy and state law, it may be the consequences of the Mayor’s actions are not as egregious as they believe.

Some context is necessary here. First, $253,000 is a significant amount. While no amount of city funds should ever be misspent, there is more to this number than it appears.

First, that is the total over five years, or an average of $51,000 per year.

More importantly, it is hard to tell what effect council approval could have had on this total. Much of the $253,000 would have had to be approved by council, due to established requirements in existing city policies and collective bargaining agreements. While severance payments are in addition to required amounts, it is questionable if council review would have changed any of those agreements.

There are, however, some agreements where council review might have reduced the amount paid out. All apparently involved potential litigation on the part of the employee. Litigation is generally very costly, even if the city were to win, and even more so if the city were to lose. So perhaps the settlements that prevented lawsuits actually saved the city from a larger expense. It cannot be known how council would have addressed the potential for lawsuits, or how employees would have reacted.

The urgency to allocate funds to hire an outside attorney has never been clear. The majority was unwilling to wait for the state audit to conclude. The audit is conducted by auditors from the state who are independent, neutral and unbiased. The audit process samples finances, policies, adherence to accepted practices, and fiscal procedures. If there were a major issue or violation, there would be a “finding,” the most extreme level, with potential legal consequences.

It seemed to me (and two others) that the responsible and prudent course was to wait to hire an attorney until it was known if there were any findings in the audit report. Otherwise, there was a risk that the city would be spending money twice to research essentially the same thing.

The audit report is now finished and does not include a finding about the mayor, the contracts, or anything else. It does not address the issue of state law. The audit is focused on conformance to internal city procedures and policies, as well as to generally accepted accounting principles.

The final management letter references the following things: The mayor believed she was following established procedure. And from a meeting with the audit attorney: other cities operate with the mayor negotiating severance agreements without council review.

From the management letter: “The city had not established clear delegation of authority of what types of payments require council approval and which can be approved solely by the mayor. Specifically, there is no provision in the city code or other adopted procedures regarding such agreements. And the council motion of Aug. 6, 2018 was not supported by an approved written resolution or ordinance clarifying the conditions for which council approval must be obtained.”

It is recommended this be re-done as either a resolution or ordinance. That motion was an effort by council (6-1) to clarify that council review and approve employment and severance contracts, not the mayor. (The mayor was in agreement with this.)

The exit recommendation also includes this: “The city does not have a master listing of all city policies or an effective way to identify all active policies. Without a master listing or alternative method to identify all active policies, the city is at risk for not being aware of or out of compliance with adopted policies.”

And this brings me to a comment about all of this furor that has distracted council for months, caused anxiety and uncertainty in city staff and controversy throughout the city.

It has occurred to me that every person elected to serve the city has a responsibility to learn the rules, policies, procedures and the appropriate roles of council, mayor, and city staff.

So, I apologize to the city and my fellow elected persons for assuming, because I had experience as a councilmember, that I knew all I needed to know. I should have remembered, or learned, how employment and severance contracts were handled. It was clear that employees were leaving, and not all voluntarily. I assumed the termination process was being done correctly. In the time I have been on council, I cannot recall if this issue was ever addressed, and if so, what was decided regarding delegation of authority for these contracts.

But, fortunately, it seems there is growing support on council for a full review of all policies, procedures, resolutions and ordinances, and authorizations. Council has already made some changes to a few policies, including council rules regarding behavior and procedure. Completing this and complying with the audit recommendations will help ensure this type of issue will never arise again.

Finally, it is my opinion that further action that would appear to be an effort to remove the mayor would be unnecessary, disruptive and would do little to improve how the city operates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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