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|Board vetoes contract call; manager's decision overturned|
|Tuesday, 16 June 2009 18:44|
In front of a standing-room only crowd that spilled into the hallway, a majority of Duxbury selectmen voted to overturn the town managerâ€™s decision not to renew Police Chief Mark DeLucaâ€™s contract when it expires in November.
The crowd came to the selectmenâ€™s meeting Monday to hear what action the board would take after a June 4 letter from Town Manager Richard MacDonald informed the chief his contract would not be renewed.
Town Counsel Robert Troy explained that legally, selectmen hadÂ to decide whether or not the non-renewal of DeLucaâ€™s contract was to be considered a â€œremovalâ€ from employment under town bylaws.
Troy said the board could then decide whetherÂ to â€œratify,â€ or formally approve, MacDonaldâ€™s decision. Selectmen could affirm, overturn or choose to take no action on this issue at all, he said.
Deluca and his attorney, Gerald McAuliffe, were also present at the meeting.
The Town Managerâ€™s Act of 1987 states that the Board of Selectmen â€œshall act upon each appointment and removal made by the town manager within fifteen days following notification.â€
During the meeting there was a lengthy discussion by Troy, selectmen and members of the audience about whether not renewing DeLucaâ€™s contract was the same as terminating him.
â€œI think the question is this: is a non-renewal equal to a removal? If it is, then it provides the selectmen with the authority to act,â€ said Selectman Jon Witten.
Selectmen Christopher Donato and Witten voted in favor of a motion that interpreted the non-renewal of the contract as a removal. Selectmen Chairman Betsy Sullivan voted against this motion.
Donato and Witten then voted in favor of a motion overturning the town managerâ€™s decision.Â Sullivan voted against.
Despite the selectmenâ€™s vote, Troy said the power to actually renew the contract was â€œbeyond the authority of the board.â€
â€œThat is a matter of law,â€ Troy said. â€œThe town manager act is very clear. The town manager negotiates all contracts for the town. If the police chief is going to have another contract, that is going to be the decision of the town manager.â€
Troy said the intent of the Town Manager Act of 1987 was to have a strong manager â€œbut not one with unbridled authority,â€ and that the ratification clause was intended to be a â€œcheck and balance.â€
Before the board voted, Sullivan said she did not want to make any decision that would undermine MacDonaldâ€™s authority.
â€œI believe what we have in front of us is bigger than any one individual,â€ said Sullivan. â€œThis decision affects how we go forward in how we govern ourselves.
â€œWe do not have the ability to appoint a chief,â€ Sullivan continued. â€œAt this point, whether we ratify or not, I do not have that ability. I will not assume it.â€
Witten said he believed the board had the ability to make the motion.
â€œIf I thought it was in violation of the [town manager] act, I would vote against it,â€ he said.
Witten also said he did not want to weaken MacDonaldâ€™s position as town manager, but felt MacDonald needed to give a reason for not renewing DeLucaâ€™s contract.
â€œI am not approaching this lightly,â€ said Witten. â€œNobody wants to undercut the authority of the town manager, but the police chief has rights under the Town Manager Act. This isnâ€™t a popularity contest. If Iâ€™m being asked to remove a department head, there has to be just cause â€¦ There is no cause on the table and it not sufficient to say we are just not going to renew your contract.â€ He said that he was â€œfrustratedâ€ at having been put in the position he was in Monday.
For Donato, the determination was a simple one to make.
â€œIn reality, itâ€™s a termination,â€ said Donato. â€œAt the end of the contract, heâ€™s not working for us.â€
A phone call to the Massachusetts Municipal Association seeking to clarify the issue was referred to James Lampke, president of the City Solicitor and Town Counsel Association. Lampke deferred to Troyâ€™s opinion and would not comment on Duxburyâ€™s situation specifically, but said: â€œA non-renewal of a contract is not a termination, generally.â€
At one point in the meeting, Donato said that if the Board of Selectmen did not vote that night on whether to ratify MacDonaldâ€™s decision they would be sued. Although Sullivan interrupted him, saying the topics he was broaching should be discussed behind closed doors, Donato continued, alleging that MacDonald went after DeLuca because he was involved in forming a managerâ€™s union. Donato also referred to a lack of evaluations of the police chiefâ€™s performance by MacDonald.
When Donato brought up the issue of a potential lawsuit, audience member Bob Doyle stated, â€œthatâ€™s a threat,â€ which Donato denied.
After the meeting, DeLuca deferred comment to his attorney. McAuliffe said that he was pleased with the results of the meeting and what happens next is up to the Board of Selectmen.
â€œI asked for two things and I got them,â€ he said. â€œI suppose Iâ€™ll wait to hear from them.â€
After the two votes, Donato proposed assigning an individual to work with MacDonald regarding the police chiefâ€™s contract.
Sullivan objected to this idea: â€œThat isnâ€™t even a gray area. It flies in the face of the Town Manager Act. I would be opposed to that suggestion. We get to weigh in on his (the town managerâ€™s) contract, on his performance but we donâ€™t get to usurp his authority.â€
Sullivan agreed to discuss Donatoâ€™s proposal in a closed-door session and at the end of their meeting, selectmen voted unanimously to go into executive session with Troy to discuss contract negotiations with non-union personnel. The results of the session were not disclosed, and neither DeLuca nor his attorney were present during the executive session.
MacDonald, who was present throughout the meeting, didnâ€™t comment during the discussion.
When asked Tuesday what the townâ€™s next move was, Witten said the ball was in MacDonaldâ€™s court. He said he could not divulge too much or it would reveal what was discussed in executive session, but he did say this: â€œNow the police chief has a contract through Nov. 20. Itâ€™s only June.â€
Donato did not respond to an e-mail seeking further comment.