Coughlin questions whether Amended Act is legal

Former Cohasset town manager Mike Coughlin has submitted additional testimony regarding the Amended Town Manager’s Act H 3486 that a joint committee of the State House and Senate will hear Tuesday between the hours of 10 and noon.

Coughlin who is both a professional town manager with 12 years experience, and an attorney, said he is concerned about the legality of H 3486 in particular Section 5b Administrative Responsibilities (h).  This section of the proposed law seeks to limit the access to electronic communications of town employees by a town manager except with the prior approval of the Board of Selectmen.

Section 5b (h) states:

…the town manager and any person acting under the town manager’s supervision, direction or control shall

have no authority to access electronic communications of any town officer or employee unless such access

has been approved in advance by the board of selectmen or a member designated by the board to act on such matters

Coughlin said “While this section may be well intentioned, H 3486 should it pass might come into conflict with other investigatory statutes and frustrate legitimate law enforcement and fraud prevention laws.  Moreover,  given that all electronic communications are considered public records,  this section could have a chilling effect on the public’s right to know.  Finally, it would make it difficult to ensure that publically owned computers are being properly used for legitimate public business.”

Coughlin said as a Town Manager with over 12 years experience he have faced instances where law enforcement agencies have sought confidential and investigatory access to town employee electronic communications. “This has included investigations by the state inspector general’s office, the attorney generals office, state ethics commission and office of campaign and political finance.”

Further, Coughlin said: “Section 5b (h) codified under Section 4 of H 3486 if enacted would require state law enforcement agencies to seek prior approval from the Board of Selectmen in order to access electronic communications in Cohasset.  This could have a chilling effect at potential efforts to protect the taxpayer.  Unfortunately throughout my career I have also encountered situations involving the selectmen themselves and Section 5b (h) might someday require law enforcement to seek prior approval from the very individuals they are investigating.”

Coughlin noted that the Town Manager, as the town’s chief procurement officer, has to work hand in glove with the state inspector general’s office to prevent fraud waste and abuse.  Also, the town manager supervises the police chief and town department heads that are often are on the front lines of protecting the taxpayer.

“This section,” Coughlin said, “would make it virtually impossible to collect the evidence- where legitimately needed- to safeguard the expenditures of public monies and to ensure that our officials adhere to the highest standards of ethical conduct.”

Coughlin urged the committee to urge the committee to have the House, Senate and Committee counsel in addition to the Office of Inspector General, Attorney General and District Attorney General look at 5b (h).

“While I was Town Manager I did not snoop on electronic communications of town employees or officials,” Coughlin said. “Apparently, abuses occurred after my watch which triggered Section 5b(h).  However well-intentioned, this section would run contrary to a number of current states laws and frustrate legitimate law enforcement and fraud prevention activities.”

In related testimony, Coughlin submitted to the General Court relevant background with regard to litigation against the Town of Cohasset filed by Coughlin, former Cohasset Police Chief Mark DeLuca and former Operations Director Mark Brennan.

Pass of H 3486 may have a profound effect on that litigation,” Coughlin noted.

After being appointed Town Manager in Cohasset in August 2011, Coughlin said he discovered several areas of concern that he brought to the attention of appropriate state officials. Coughlin alleges that he was discharged without cause for having reported his concerns with the state.

Consequently, Coughlin’s attorney, labor and civil rights attorney Harold Lichten, has filed a lawsuit citing numerous violations of the Massachusetts Whistleblower Protection law and violations of the present Town Manager’s Act, namely Section 3 (j) of Chapter 34, of An Act Providing for A Town Manager in the Town of Cohasset for failure to provide me notice “Setting forth in detail the specific reasons for the proposed removal.”  This is currently being pleaded in my complaint in the Norfolk Superior Court in Count III Violation of the Cohasset Town Manager Enabling Statute.

Coughlin said the Amended Town Manager Act (Section 3 (j) of Chapter 34, “seeks post fact to eliminate the requirement that a termination notice for a town manager cite specific reasons in detail, “perhaps admitting that the town violated this section,” Coughlin said.

Section 4 of H 3486, would strike Section3 (J) and replace it with a watered down proviso Section 5(a) which requires that a Board of Selectmen is only required to give notice “Setting forth reasons if any for the proposed removal”. “Gone are the prior requirements that a Board of Selectmen cite specific reasons with supporting detail,” Coughlin noted.

“The fact that H 3486 seeks to change the removal standard during the course of litigation which is challenging that very standard is troublesome and raises the question of legislative motive on the part of the town.  Frankly, it is my contention that this change is directly related to the lawsuit I have filed and the towns clear violation of the section it seeks to replace,” Coughlin said.

According to Coughlin, “Other sections of Chapter 34 are being challenged by Police Chief Mark Deluca who is recovering from a serious accident at Brigham and Women’s Hospital.  Chief Deluca, whose injuries prevent him from testifying, is challenging whether Chapter 34 or H 3486 allows an Acting Town Manager to serve indefinitely and disputes whether an acting town manager, that in standard municipal practice, is akin to a temporary caretaker, has the right to make certain decisions.

“Indeed the present Acting Town Manager has been in office since February 2012.   Aside from the propriety of such a tenure, H 3486 principal purpose is to remove current prohibitions which would block his permanent appointment as Town Manager.”

Coughlin concluded:

“Given that the current act is being reviewed in Norfolk Superior Court by Chief Deluca and myself and at the Massachusetts Commission Against Discrimination by Operations Director Mark Brennan, I urge that committee further study H 3486 in detail before its full consideration by the General Court.”

© Copyright 2013 Tanna K, All rights Reserved. Written For: Tinytown Unleashed