Acting Town Manager’s Contract may be illegal

The E-mail which inspired this blog:

On Sep 11, 2012, at 4:57 PM, Carlson, Paul wrote

Dear Ms Kasperowicz

In your letter of September 7, you requested to be apprised of the Board of Selectmen’s legal authority for signing a contract with Acting Town Manager Michael Milanoski.  Cohasset’s Town Manager Act vests in the Board of Selectmen the responsibility for appointing the Town Manager and the Acting Town Manager and for entering into the appropriate contracts.  The Act states that a Town Manager “shall be a professionally qualified person, especially fitted by education, training and previous full-time employment to perform the duties of the office.”

The Board of Selectmen has carefully reviewed Mr. Milanoski’s educational and professional background and his performance over the past six months.  The Board has determined that it is in the best interests of the Town of Cohasset to enter into a new contract with him so that he can continue serving the town through June 30, 2015 as Acting Town Manager.

Very sincerely yours,
Paul Carlson
Board of Selectmen

Dear Paul,

The April 3rd 2012 contract the Cohasset Board of Selectmen signed with Michael Milanoski is a confused, possibly illegal, contract for these reasons:

  • The contract does not specify under what laws selectmen can write a multi-year contract with an Acting Town Manager. Selectmen have not answered this question. Standard procedure is a 6-9 month contract. Citizens of the Town of Cohasset would like to see the laws that allow Selectmen to write a multi-year contract outside the scope of the Strong Town Manager Act.
  • The contract starts out by saying the Selectmen “desire” to employ Milanoski as Acting Town Manager. But the rest of the contract says he’s the Town Manager and is being hired as Town Manager. Is he? Mr. Milansoki is calling himself Town Manager. His letterhead and his business card say he is Town Manager. Are Selectmen subverting the Act?
  •  Article 5 of Milanoski’s 18 month contract (soon to be extended to June 2015) says he can removed as “Town Manager” with a super majority vote of the board, equal to four affirmative votes, as provided in Section 3(J)_ of the Statute.
  • The Town Manager’s Act says the Town Manager can be removed by a simple majority. Why would it be more difficult to remove an Acting Town Manager than a Town Manager? We would think that any contract with Milanoski would have to be in scope with the Act. Why is this WAY OUTSIDE the scope of the Act?
  • Please offer proof that TOWN COUNSEL Paul DeRensis saw this contract and said it is a legal one. We would also like to be assured that he has blessed the extended contract with Milansoki.

I urge you not to sign an extended contract with Milanoski and to advertise for an experienced Town Manager. Town Counsel told you early on that Milanoski would have to separated from the Town for a period of one year before he could be considered for the position of Town Manager: “No person holding elective or appointive office in the Town shall within one year of holding such office be eligible to be appointed to the position of Town Manager.” Milanoski was on two appointed boards at the time of his appointment.

The previous full time experience stipulated in the Town Manager Act does not refer to previous full time experience as garbage collector, or Supervisor of Public Works, or bartender. It means previous full time experience as a Town Manager. 

Don’t saddle the Town with an inexperienced Acting Town Manager.  We have seen the results of inexperienced Acting Town Managers serving the Town in past years. Even brief tenures wrecked havoc.

© Copyright 2012 Tanna K, All rights Reserved. Written For: Tinytown Unleashed

  1 comment for “Acting Town Manager’s Contract may be illegal

  1. Mike Coughlin
    September 12, 2012 at 8:17 pm

    It has been said we are a nation of laws not men and as a consequence officials take an oath to uphold them. This should hold true in Cohasset but for some strange reason it isn’t.

    Aside from the questionable legality and ethics about offering an Interim/Acting office holder a three year contract rather than going through a new search process for Town Manager, the three year contract being contemplated by the Board of Selectmen for Mike Milanoski runs contrary to those extended to any of his predecessors.

    It may be a Tale of Two Contracts but last year as Town Manager, I negotiated with Ted Carr and Lee Jenkins a contract which was eventually approved by a unanimous vote of the Board of Selectmen. I was told that the “boilerplate contract” supplied by the Town Attorney and which I eventually signed was the same document which previous town managers executed– namely that a town manager can be let go by a mere majority of the Board of Selectmen. So it begs a question– why is the contract for the Interim Town Manager Milanoski be any different? How can a temporary or interim office holder have stronger protections than one formally appointed as Town Manager under the Strong Town Manager Act?

    The notion that an Interim Town Manager can be let go by only a super majority of the Board of Selectmen during the three year term of his contract runs contrary to the Strong Town Manager Act- a state law. That said, I am sympathetic of the need to instill some stability to those who sit in the Town Manager’s chair. In Westport, my contract did include a “four to fire” provision. But Westport, unlike Cohasset, was a town without a town charter or special act of the legislature

    Last year when I inquired about incorporating a “four to fire” clause into my contract for Cohasset, a member of the law firm of Deutche Williams and DeRensis responded by stressing two legal points– one– none of your predecessors – in particular Bill Griffin had such a clause in their contract and secondly– no contract can run contrary to a state law– in the case of your contract with Cohasset– the Strong Town Manager Act. So what changed the town attorney’s position?

    While I agree with the concept of “four to fire”, the contract as presently drafted is illegal. Other towns in the Commonwealth with similar acts or charters which sought to extend their town manager some stability in the political minefield of municipal government have been forced to legally recognize the only way to make such a contract legal is have the legislature change the act or amend their charter. Lets take into consideration recent actions in the Town of Southbridge.

    As many townspeople know, I was formerly the Town Manager in Southbridge. This past spring, a majority of the Southbridge Town Council wanted to give Town Manager Chris Clark the security and stability to know that he could only be fired by a 2/3 vote of the nine member Town Council. Like Cohasset, presently the Southbridge Town Charter requires a simple majority to remove the Town Manager. But to incorporate this into a legal contract, Southbridge found it needed a special act of the legislature. To that end, Southbridge filed a special legislative act which just passed the House and the Senate on September 6th and is expected to be signed into law by Governor Patrick– tomorrow September 16th.

    If the BOS wanted to do this legally– they would need to bring an article to petition the legislature to make such a change at the fall town meeting. But before this- what legal justification exists to treat an interim appointee as if he were the same as one formally appointed as Town Manager under the act.

    In my contract, as was the case with former Town Manager Bill Griffin, the first paragraph was the legal justification for the contract. Nowhere in the act, is a legal recital of the authority of the Board of Selectmen to extend a three year contract to an interim office holder. The people of Cohasset voted for the Strong Town Manager act and the legislature passed an act that incorporated those wishes into a binding state law. Pursuant to that law, the BOS is required to follow it.

    This contract along with other moves by the BOS runs contrary to the very law they have sworn to uphold. Signaling a strong message that the Board doesn’t care about the law, they charged Lee Jenkins with negotiating a contract with Mr. Milanowski– the same Lee Jenkins who had the arrogance to state a BOS meeting last fall that “I don’t care about the law”– so is anyone surprised that he is advancing an illegal contract?

    But this is not the only illegal act– would it shock anyone — that town managers in other communities who extended contracts to their department heads similar to the ones I extended have had their contracts upheld as binding.

    Consider the hypocrisy of the BOS, they reasoned that my contracts with the department heads were illegal but now they stand ready to extend an illegal one to Mr. Milanoski.

    To go further, I reasoned that certain employees and department heads in Cohasset needed contracts to afford them security in a politically hostile and unstable environment . The same can be said with respect to the “four to fire” clause in Mr. Milanoski’s contract. But once again hypocrisy and a clear double standard by the BOS no to the department heads and yes to the Interim Town Manager.

    Double standards is not leadership– its politics and its politics of the worse kind.

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