Saturday, October 01, 2005

A Question of Right Versus Wrong

Is there anyone here who didn't catch this morning's Standard-Examiner editorial? If so, you can read it here. We've all seen Don Porter and the Std-Ex crew deftly tiptoe around issues before; but this one really takes the cake.

The Std-Ex editors have apparently had their ears to the ground, and are aware of the continuing murmurings of the Ogden townsfolk. This morning's editorial meekly addresses the Stuart Reid severance issue; something that has rest of the town all abuzz.

I'm not going to go into an elaborate re-hash of the presumed facts of the situation. The Std-Ex editorial does a good job of that, at least through the first five or six paragraphs. For those readers who need more information, there's plenty of it here.

In a nutshell though, these are the undisputed essentials, as reported by the various print media:


  • Mayor Godfrey hired Stuart Reid in 2000 to serve as Ogden City's economic development director;
  • At some point before or during Mr. Reid's employment, Mr. Reid and the Mayor purportedly entered into a verbal agreement, providing a severance bonus to Mr. Reid upon the eventual voluntary termination of his employment;
  • Mr. Reid worked in his capacity as economic development director for some 5-1/2 years, until his voluntary departure on July 15, 2005, at which point he received a $43,000 severance package, predicated not upon involuntary termination, but upon "good" performance;
  • The current Ogden city code provides for severance benefits only in the event of involuntary termination; there is no authority in the ordinance for severance bonuses.
  • Neither Mr. Reid nor Mayor Godfrey have cited any other authority for the award of Mr. Reid's severance bonus, other than vague references to instances where similar extra-legal severance bonuses have been awarded in the past.

And then today's editorial adds this interesting tidbit: "The city's own attorneys have advised Godfrey he should have simply e-mailed Reid, thanked him for his service and asked for a letter of resignation. That would have met the ordinance's rules for an involuntary termination." Is there anyone here who doesn't understand what this means?

I'll tell you what it means. It means that even people like Ogden City Attorney Norm Ashton understand that Mr. Reid's severance bonus finds no support in the Ogden City Code. It's illegal, folks, unless it can be supported by other legal authority.

And this is where we Ogden townsfolk thus find ourselves -- in a place where the city administration, being unable to legally justify its action under the Ogden City Code, resorts to a highly legalistic "waiver" argument. And here's how that waiver argument boils down:

What they're now telling us is that similar extra-legal bonuses have been previously awarded in other circumstances. Nobody complained about the code violation before, so how can anybody complain about Mr. Reid's bonus now? We've had a good-old-boy system operating extra-legally for quite a long time, so everybody should just shut up about it. We've had a compliant city council giving these arrangements a "wink and a nod" for so many years that it's too late for anybody to do anything about it.

The trouble is, waiver is a doctrine well-recognized in American jurisprudence. The administration's position may well be supportable here. That would depend of course upon the answer to that old lawyer question: What did the council know, and when did they know it?" If the city council has knowingly condoned this sort of behavior in the past, Mayor Godfrey's position may be entirely supportable and legally justifiable.

It ain't a pretty picture.

Before closing, I'm going to briefly hit another couple of points that were mentioned in the Std-Ex editorial.

First, the editorial refers to some kind of Utah Attorney General's Office opinion, and says, "But according to the Utah Attorney General's Office, the verbal agreement between Godfrey and Reid is binding, and Godfrey was right to pay it since he agreed he would."

As to this assertion, I'll just venture to say that it's somewhat doubtful that the state AG's office has issued any opinion specific to the instant facts. The city council hasn't yet completed its own formal investigation of this matter, as far as we've been told, and an AG opinion as to this particular transaction would be thus entirely premature. What the AG's office probably did, was to confirm to one of the Std-Ex editors that oral agreements can be valid, under particular circumstances, which is indeed true under Utah law. And remember, a proper investigation into the waiver argument will require the examination of documents in prior employment terminations. It's doubtful that this has been accomplished by now. I suspect the Std-ex "fudged" a little bit on the facts here, saying that the AG's office has given the whole transaction its "thumbs up."

And finally, there are moral and ethical issues at work here, just as Don Porter says: "Godfrey and all other mayors and city officials throughout the Top of Utah should remember that they are dealing with precious taxpayer dollars. They should be absolutely tightfisted with those funds."

While not exactly a brave "shot over the bow" of the Ogden ship of state, the Standard-Examiner is essentially right about this. This whole situation involves the public's money and the public trust -- it's all about right versus wrong. It's also quite inelegant, I think, for administration officials to take hyper-technical and peculiar legalistic positions adverse to the citizens whom they're sworn to serve. I think Mr. Reid should take a short "time-out" with his conscience, and simply give the $43,000 back -- before the S--- hits the fan.

I think it boils down to a simple question of what's right; versus what's wrong.

What say you, gentle readers.

12 comments:

politico observor said...

Absolutely, Rudi. It simply comes down to that: RIGHT vs. WRONG. If Reid has a smattering of character, any substance, any moralls, he'd thank Godfrey and give back the severance. For him to accept it is unconscionable, but then, NOBODY'S ever accused this guy of having a conscience. Or Godfrey, for that matter.

I'm apalled by the position they each assume, that of a Church going, morally devout person. They hide behind the very fabric of decency, yet are vindictive and heartless. I still find myself shaking my head at Reid's words, "I don't understand why the peole of Ogden don't appreciate what I've done for them." Well, Stuart Reid, I think the people of Ogden DO understand what you've done for them, and that is why they aren't lining up to shake your hand (it's too full of their money, among other things).

This is moral bankruptcy on a major scale. Firefighters and Police report to work daily, putting their lives on the line, for one hell of a lot less than Godfrey gave you for your self impossed "termination."

The whole thing stinks, and this Mutt & Jeff show should move on down the road while hanging their heads in shame.

dian said...

Well, I did suggest this attitude in a previous post---that they would say they've been doing this for years and no one has protested so it must be all right.

I highly object to this attitude, of course. For one thing, it reeks of loopholes and selective enforcement.

If, for example, a judge heard the following statements:

He's been stealing cars for years, and you never arrested him for it before now!!

He's one of the most well-known drug pushers we have!!

He's shoplifted there since he was fifteen--give him a break!!

Now just how far would that fly? Is that judge going to say---Oh, I see. It's his established practice. We apologize.

Of course not. The judge is going to view the individual as a habitual criminal.

See my problem with this? It's almost as if getting away with questionable practices in government for a long enough time makes them legal.

Rudi quoted the part of the Utah Code that stated that a verbal agreement was Not binding if performance of the contract exceeded one year, which a severance, in my opinion, does.

Yet the Standard Examiner states that Utah's AG says that Godfrey's verbal agreement for five years is legally binding.

Lots of questions here. The Utah AG thinks that a mayor can make a verbal agreement privately with one other person to pay them a sum of money out of citizen tax dollars?

This is legal???? If it is, one can only imagine what could go on. Private deals could be made all over the place, and no one would have the right to know about them, and no one could stop them.

If by chance someone corrupt were elected to the mayor's office, he could bankrupt the city in a heartbeat with private deals. Kickbacks could go on. There wouldn't be anything anyone could do about this.

I think we need a bit more justification from the AG here.

Bud Grant said...

"he could bankrupt the city in a heartbeat." Who does that remind us of, people?

RING-RING-RING!!!!!!!!!!!!!!!!!!!BA_RANG!!!CHING-CHING-CHING!!!!!!

THAT'S RIGHT....THE MAYOR OF OGDEN!

Bonnie Lee said...

So what if the verbal agreement is legal. To our dear leader it is beside the point. He is a well known lier and there is very little doubt that this "verbal agreement" is a lie he made up after this thing became public.

His latest lie incidently is that he is now denying that he said this gondola deal would only be done with private money! That was said as he and Geiger were preparing to go to DC to finagle public money for the damn thing. They both of course flew back east in high style on tax payer money!

David Lee said...

"The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish! "

Frederic Bastiat

copperpenny1954 said...

I'd just love to put together some of these comments and forward them to the SE as a letter to the editor. People in Ogden need to hear this!

dian said...

Looked up Frederic Bastiat, whom I'd never heard of, and read some---thanks, David Lee, for mentioning him. Some of what Bastiat says is really applicable to our situation here, like the part about the twisting of the law by those who enforce it benefitting them instead of those it was designed to protect.

I still think this verbal severance agreement was not made according to correct Ogden City Procedure and therefore should be declared void, if not downright illegal.

To expound---they are now citing the clause that says that if a previous agreement was made before the Ogden City Code revision that states that an employee leaving voluntarily does not get severance, that previous agreement is valid.

My contention is that it is not, first, since it is verbal, not written, and the Utah Code states that a verbal contract is only valid for one year not five. If they wish to cite the Supreme Court's ruling on verbal contracts being legal, the question of correct procedures in city government and unauthorized use of citizen tax dollars comes into play anyway.

Whether the verbal agreement is or is not legal, and whether it can be grandfathered in because it was previous to a revision in the code, does not matter at all if the agreement itself overstepped the bounds of mayoral authority to make such an agreement, or was not in compliance with established Ogden City practice in the writing of employment contracts.

Finally, was there ever a time when the Ogden City Code allowed employees who leave voluntarily to get severance?? Knowing this would be helpful in sorting this out.

I still say we cannot have our elected officials making unwitnessed, unauthorized, unwritten, deals with each other that use citizen tax dollars as payment for those deals.

To come right out with it--that severance agreement should have been written down five years ago. The Ogden City Council should have been made aware of it and had a chance to voice their views as to it. And when it was finally awarded, that piece of paper and history should have been produced so that it would be clear to all of us that nothing improper was going on with our tax dollars being used in a private agreement between two elected officials.

That is called accountability. And since that did not happen, it is perfectly understandable that people would think that the reason it didn't could be that improprieties with citizen tax dollars were going on.

I would like to know what John Patterson's severance agreement is, and other people's severance agreements with Ogden City, for that matter, and how they are made, whether verbal or written, and whether or not the Ogden City Council is kept current on them. This would be a way to see if this "established practice" of making these agreements privately, informing no one of them, and not writing them down is still in full force.

Realtor on Deck said...

Dian, I gain so much from reading your posts....well crafted, well researched, and especially well analyized.

The part about a verbal contract being good for one year especially intrigues me. In real estate, there IS NO VERBAL CONTRACT; any contract is ONLY a contract when on paper.

This thing between Godfrey and Reid is an absolute mockery of the system and a total disdain regarding the people who pay tax dollars to the city. Who knows what was cooked up between these two? Godfrey and Reid could have claimes any figure they wanted, and without a witness, rolled with it. An agreement like this could be used to bankrupt a city. Godfrey can thereby get away with anything he wants at any time.

I don't know why the Council, the City Attorney, the people, are not screaming "bloody murder" over this. Godfrey has the propensity to tweak most any agreement he wants, such as the BDO and Woodbury agreements, and just do it his way, damn the torpedoes. He sullies the office with this blatant disregard for the rules.

We can only expect more of this from him, and the sad part is that 5 members of the City Council (Safsten, Jorgensen, Filiaga, Burdett, and Stephenson) most always support this.

Tomorrow can't come soon enough. The polls are open and we have a chance to begin a rectification of these underhanded, closed door manipulations of the public's money and trust.

dian said...

Thanks, Rod. Actually, it was Rudi who posted the link to the statues about this. Here is the part that is making me say verbal agreements are only valid for contracts performed within one year:

25-5-4.   Certain agreements void unless written and signed.
     (1) The following agreements are void unless the agreement, or some note or memorandum of the agreement, is in writing, signed by the party to be charged with the agreement:
     (a) every agreement that by its terms is not to be performed within one year from the making of the agreement;


Utah Code Section 25-5-4

In his post, Rudi mentions this statute in the same paragraph as he mentions "Statute of Frauds." He then says today that Schwendiman in a phone conversation says that "Statute of Frauds" is not applicable in Utah to an employment agreement.

I am therefore left unclear today as to whether the Utah State Code above is or is not part of this not applicable Statute of Frauds, or whether it would apply in this instance.

I think it should, either that, or it should say--Some verbal agreements are valid and others are not, and get into it.

Rudi, weigh in on this please. Is this Utah Code worth anything here or not?

In case it isn't, here's another one. It's in Title 10-- Chapter 8--Powers and Duties of All Cities:

10-8-1.   Control of finances and property.
     The boards of commissioners and city councils of cities shall have the power to control the finances and property of the corporation.


No Change Since 1953


Utah Code Section 10-8-1

Anonymous said...

Dian:

Here is another one from Bastiat that fits our local lord mayor and his central committee. Also one form Ronnie Reagan that fits this group of clowns:

Government is the great fiction,
through which everybody endeavors to live
at the expense of everybody else.
-- Frederic Bastiat, French Economist (1801-1850)


Ogden city "Government's view of the economy could
be summed up in a few short phrases:
If it moves, tax it.
If it keeps moving, regulate it.
And if it stops moving, subsidize it.
-- Ronald Reagan (1986)

dian said...

Have heard from various sources that the Utah Code is still the Utah Code, and has nothing to do with the Statute of Frauds being unable to be applied in this instance.

Therefore, the one year verbal thing I think valid.

You're absolutely right, ROD---Godfrey and Reid could have claimed any figure they wanted here, and as long as they backed each other up on it, there would be nothing anyone could do if this behavior were legal in the performance of municipal government, which in my opinion it is not.

Anonymous said...

What this gentle reader says is that the Nancy Workman approach to city governance seems to have migrated north to Ogden.

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