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|Town counsel says vote on police chief contract invalid|
|Written by Susanna Sheehan|
|Tuesday, 21 July 2009 14:09|
six-page memorandum issued Friday, Troy re-affirmed Town Manager Richard MacDonaldâ€™s decision not to renew Police Chief Mark DeLucaâ€™s contract when it expires in November and declared that the selectmenâ€™s vote to vacate MacDonaldâ€™s decision has no affect on the town managerâ€™s action nor on the chiefâ€™s contract.
The Board of Selectmenâ€™s vote to overturn a decision not to renew Police Chief Mark DeLucaâ€™s contract had â€˜no legal significanceâ€™, according to Town Counsel Robert Troy. In his |
Troy said his analysis was based on his study of Duxburyâ€™s Town Manager Act, the police chiefâ€™s contract, Massachusetts statutes and case law.
At their June 15 meeting, selectmen reviewed MacDonaldâ€™s decision not to renew the police chiefâ€™s contract and weighed whether or not the non-renewal was to be considered a termination or â€œremovalâ€ from employment. Selectman also had to decide whether or not they would â€œratify,â€ or formally approve, MacDonaldâ€™s decision, if it was deemed a removal.
The Town Manager Act of 1987 gives Selectmen the ability to â€œact upon each appointment and removal made by the town manager within fifteen days following notification.â€
Selectmen Christopher Donato and Jonathan Witten voted in favor of the interpretation that MacDonaldâ€™s decision not to renew the contract equaled a removal. They also voted in favor of a motion not to ratify the town managerâ€™s decision to let the contract lapse. Selectmen Chairman Betsy Sullivan voted against both motions.
In Fridayâ€™s memo, Troy wrote that he gave the matter â€œcareful reviewâ€ because â€œthe issue is complicated and poses substantial consequences to a public employee.â€
He concluded that the failure to renew the police chiefâ€™s contract does not constitute a â€œremovalâ€ from employment and, because of this, the selectmenâ€™s powers of ratification under the Town Manager Act do not apply.
â€œIt appears that the ramifications of the Boardâ€™s vote were subject to misinterpretation,â€ wrote Troy. â€œThe boardâ€™s vote was intended to preserve the townâ€™s ability to subject the town managerâ€™s action to the ratification process.....The board was advised that subsequent legal analysis of all the elements of the police chiefâ€™s employment status could render the boardâ€™s voteâ€¦without any ultimate effect. In light of this legal analysis, the boardâ€™s vote, while a valid exercise of the boardâ€™s then discretionary authority, is now deemed to have no legal significance.â€
One reason behind Troyâ€™s decision is the fact that DeLuca entered into a contract with the town and knew of the contractâ€™s provisions, including that it had an ending date and no language related to reappointment. Troy stated that it was incumbent upon the police chief to approve a contract for himself that included specifics favorable to his term of employment.
Troy researched Massachusetts state laws and appeals court cases. One such case involves a police union in a suit against the town of Northborough. According to Troy, the appeals court made it clear in this case that a townâ€™s decision not to reappoint a police officer is â€œa non-delegable managerial prerogativeâ€ and that a failure to re-appoint an officer is not considered a â€œremovalâ€ nor does it require a hearing and a reason showing just cause.
Troy also cited another appeals case in which it was determined that â€œa dismissal is not the same as a non-renewal of a contract.â€
Troy concluded that â€œbarring other circumstances, the consequences of this action necessarily import that the Police Chief will cease to exercise the powers of his office on the date of expiration of the contract [Nov. 20, 2009]...â€
When reached for reaction Monday, MacDonald said he did not want to elaborate on Troyâ€™s memo, saying: â€œIâ€™m not going to comment other than to say the opinion speaks for itself.â€
Selectmen Chairman Betsy Sullivan said Troyâ€™s conclusions support her views on the issue.
â€œHis opinion bears out what Iâ€™ve believed to be true from the beginning of this discussion,â€ said Sullivan.
When asked why Troy did not give selectmen this information before their June 15 vote, Sullivan responded that the board had asked him for it and had received a legal opinion with information on taking a vote of ratification but that â€œhe told us it was a very complex issue and he needed more time to research it.â€
As to next steps, Sullivan said: â€œThe town manager will move forward with his plans for the police department. Iâ€™m hopeful this can get resolved and we can all move on.â€
When asked for his reaction to Troyâ€™s memo, Selectman Jon Witten said: â€œI think the opinion clarifies the earlier opinion and it speaks for itself.â€
Witten said he still feels that the non-renewal notice given to the police chief was â€œtantamount to a terminationâ€ and added that he stands by his vote of June 15 because his opinion was based on the information supplied to him by Troy at that meeting.
â€œIt doesnâ€™t change my mind in terms of the vote taken at the time,â€ said Witten. â€œDid the selectmen overstep their authority on June 15? The answer is no. The question was never whether the selectmen have the power to order the contract renewed and tell the town manager what to do.â€
When asked what the townâ€™s next steps are for this issue, Witten said: â€œThat is up to the police chiefâ€™s counsel, the chief and town counsel. If the contract isnâ€™t renewed, then the contract isnâ€™t renewed. I expect at this point, there really arenâ€™t any next steps.â€
Selectman Christopher Donato said Troyâ€™s memo doesnâ€™t really change his feelings on the issue. He said the town has a good police chief who manages the department very well and shouldnâ€™t be let go.
â€œI donâ€™t know if I completely agree with it,â€ he said about Troyâ€™s decision, but he acknowledged that â€œthere is no real impact of the vote other than two out of three selectmen expressed their opinion that the decision wasnâ€™t necessarily in the townâ€™s best interest.â€
Donato said he doesnâ€™t agree with Troyâ€™s conclusion that a removal from employment is not a termination,
â€œIt is the equivalent of a termination,â€ said Donato. â€œLook, we have a good chief. Please tell me why it is necessary to get rid of this guy. The only reason Iâ€™ve heard so far is â€˜Because I can.â€™ Thatâ€™s not how I treat people.
â€œI am still hoping we can work this out,â€ Donato continued. â€œIâ€™m not going to give up hope until the last second. I truly believe that retaining the chief is in the best interest of the town.â€
Delucaâ€™s attorney, Gerard McAuliffe of Quincy, did not return calls seeking comment.