Town counsel says vote on police chief contract invalid

Written by Administrator  | Created: Tuesday, 21 July 2009 19:09  |  Category: ROOT
Last Updated: Wednesday, 22 July 2009 01:03  | Wednesday, 22 July 2009 00:09

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Troy said his analysis was based on his study of Duxbury’s Town Manager Act, the police chief’s contract, Massachusetts statutes and case law.

At their June 15 meeting, selectmen reviewed MacDonald’s decision not to renew the police chief’s contract and weighed whether or not the non-renewal was to be considered a termination or “removal” from employment. Selectman also had to decide whether or not they would “ratify,” or formally approve, MacDonald’s decision, if it was deemed a removal.

The Town Manager Act of 1987 gives Selectmen the ability to “act upon each appointment and removal made by the town manager within fifteen days following notification.”

Selectmen Christopher Donato and Jonathan Witten voted in favor of the interpretation that MacDonald’s decision not to renew the contract equaled a removal. They also voted in favor of a motion not to ratify the town manager’s decision to let the contract lapse. Selectmen Chairman Betsy Sullivan voted against both motions.

In Friday’s memo, Troy wrote that he gave the matter “careful review” because “the issue is complicated and poses substantial consequences to a public employee.”

He concluded that the failure to renew the police chief’s contract does not constitute a “removal” from employment and, because of this, the selectmen’s powers of ratification under the Town Manager Act do not apply.

“It appears that the ramifications of the Board’s vote were subject to misinterpretation,” wrote Troy.  “The board’s vote was intended to preserve the town’s ability to subject the town manager’s action to the ratification process.....The board was advised that subsequent legal analysis of all the elements of the police chief’s employment status could render the board’s vote…without any ultimate effect. In light of this legal analysis, the board’s vote, while a valid exercise of the board’s then discretionary authority, is now deemed to have no legal significance.”

One reason behind Troy’s decision is the fact that DeLuca entered into a contract with the town and knew of the contract’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 town’s decision not to reappoint a police officer is “a non-delegable managerial prerogative” and that a failure to re-appoint an officer is not considered a “removal” nor does it require a hearing and a reason showing just cause.

Troy also cited another appeals case in which it was determined that “a dismissal is not the same as a non-renewal of a contract.”

Troy concluded that “barring 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]...”

When reached for reaction Monday, MacDonald said he did not want to elaborate on Troy’s memo, saying: “I’m not going to comment other than to say the opinion speaks for itself.”

Selectmen Chairman Betsy Sullivan said Troy’s conclusions support her views on the issue.  

“His opinion bears out what I’ve believed to be true from the beginning of this discussion,” 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 “he told us it was a very complex issue and he needed more time to research it.”

As to next steps, Sullivan said: “The town manager will move forward with his plans for the police department. I’m hopeful this can get resolved and we can all move on.”

When asked for his reaction to Troy’s memo, Selectman Jon Witten said: “I think the opinion clarifies the earlier opinion and it speaks for itself.”

Witten said he still feels that the non-renewal notice given to the police chief was “tantamount to a termination” 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 doesn’t change my mind in terms of the vote taken at the time,” said Witten. “Did 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.”

When asked what the town’s next steps are for this issue, Witten said: “That is up to the police chief’s counsel, the chief and town counsel. If the contract isn’t renewed, then the contract isn’t renewed. I expect at this point, there really aren’t any next steps.”

Selectman Christopher Donato said Troy’s memo doesn’t really change his feelings on the issue. He said the town has a good police chief who manages the department very well and shouldn’t be let go.

“I don’t know if I completely agree with it,” he said about Troy’s decision, but he acknowledged that “there is no real impact of the vote other than two out of three selectmen expressed their opinion that the decision wasn’t necessarily in the town’s best interest.”

Donato said he doesn’t agree with Troy’s conclusion that a removal from employment is not a termination,

“It is the equivalent of a termination,” said Donato. “Look, we have a good chief. Please tell me why it is necessary to get rid of this guy. The only reason I’ve heard so far is ‘Because I can.’  That’s not how I treat people.

“I am still hoping we can work this out,” Donato continued. “I’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.”

Deluca’s attorney, Gerard McAuliffe of Quincy, did not return calls seeking comment.