The Standard-Examiner, constant and slavish proponent of all things Ogden city "Godfreyesque" (rhymes with Kafka-esque) government does, ran a story in yesterday's edition, adamantly defending the Mayor's actions in the ongoing Stuart Reid severance bonus situation. In the interest of saving WCF front-page space in the two days remaining in the primary election, I'll simply link the full story here.
In a nutshell, the Standard-Examiner has taken the position that Mr. Reid's severance windfall was all nice and legal, inasmuch as the secret Godfrey-Reid severance agreement purportedly pre-dated the current version of the ordinance. The Std-Ex position thus seems to be that the ordinance in effect at the time of Mr. Reid's original hiring permitted the Mayor to award severance packages in its discretion irrespective of whether the termination was voluntary or involuntary.
Whether this is true or not is anybody's guess at this point. I visited what's left of the Weber County Law Library yesterday though, and am presently unable to determine what the ordinance said at the time of Mr. Reid's hiring. The only version there is the current ordinance. Prior versions are unavailable. Nor are they available on the internet.
Consider this an ongoing story folks. I'm definitely going to look into this ordinance authority question further, once the primary election has been concluded.
Suffice it to say that I'm not going to take the Standard-Examiner's word for it though, because the ordinance in question, Ogden City Code Section 2-6-9 was first enacted in 1979, well before Mr. Reid's 2002 hiring. It has however been amended numerous times. I'm thus going to leave this question open until I'm able to get my hands on a copy of the ordinance that was in effect at the time that Mr. Reid was first hired by Ogden city. When that happens, I will publish a copy of that ordinance here.
The most interesting feature of this story is a second "wrinkle" that the Std-Ex editors decided to "throw in."
The John Wright article says, "Stephen Schwendiman, a Utah assistant attorney general, said the state Supreme Court ruled in 1989 that verbal agreements are as valid as written ones, meaning Reid could have sued the city if he had not received the severance pay."
It then goes on to make a logical leap and attribute this non-sequitur to Mr. Schwendiman: "A court would undoubtedly find that binding," Schwendiman said of the agreement."
Being the curious type, I put in a call this morning to Mr. Schwendiman, to verify his quote. He very graciously returned my call; and we spoke for a few minutes about the telephone interview he'd had early with Mr. Wright.
He explained that Mr. Wright had merely asked him a general question, "Are verbal employment agreements enforceable under Utah law?" Mr. Schwendiman provided the obvious and correct answer. Yes they are, of course.
Mr. Schwendiman makes it very clear however, that he did not render any opinion as to whether the Reid-contract was legal under its particular factual circumstances. Mr. Schwendiman informs me that he hasn't read the written employment agreement, nor has he reviewed the applicable ordinance, nor investigated or examined any other facts particular to the transaction, to determine whether Mayor Godfrey had the authority to enter into the agreement in the first place. As to that, that's an open question in Mr. Schwendiman's mind, as in the minds of numerous others among us.
I told you the Std-Ex "fudged" on the facts. What they did was try to bootstrap an off-the-cuff informal statement about general Utah law into an Attorney General Opinion. Tsk, tsk, tsk...
Is the Standard-Examiner a great newspaper, or what?
Incidentally, there was an articulate and perceptive Std-Ex guest editorial on the general subject in yesterday's edition, for anybody who'd like to take a look.
Comments, anyone?
8 comments:
I'm going to note parenthetically that Mr. Schwendiman and I also discussed the possible applicability of the Utah statute of frauds to the instant situation.
Mr. Swinderman has 25 years experience in Utah employment law, and informs me that Utah employment agreements do not fall within the scope of the Utah statute; so any discussion of this element is probably off-track.
Shame on you Rudi. At least the Standard Ex “is doing something.” After all, what have you ever done for journalism in Ogden. You’re just a naysayer who can’t see all the Pollyanna positives going on here.
All facetiousness aside, I’m with Dian on this one. In an earlier post, she pulled the state law which voids this verbal agreement because the terms were not met within ONE year of the agreement. Regardless of what Ogden code said, says, or is saying, the verbal agreement is only valid for ONE year. Presumably, (as the article indicates) if the agreement was made at the beginning of Reid’s reign of incompetence, it was not binding at the end. Unless, the administration would have us believe that EACH year, the mayor and Reid entered into a renewable verbal agreement. Why not just write it down at some point?
In the SE article, the mayor said that promising severance deals are the only way to keep really good people. I believe some people go into public service, knowing the risks, because they want to do good, not get rich. Plus, if you’re really a talented, qualified prospect, it’s not that difficult to find work. However, it may be difficult to find it if you were a complete flop, who was over-payed for your qualifications.
The bottom line: if I had just made a near six-digit salary in public service for 5+ years, I probably would have a job lined up for myself before quitting. Thus, I doubt I would’ve needed additional severance. But, if I was quitting because the heat was on, and I had a chance to collect a generous package that comes to more than $50k (when you factor in unpaid vacation), I certainly wouldn’t return just a couple months later. And, even if I did, I wouldn’t bite the hand that feeds me. I would return the severance to ensure I avoided the appearance of impropriety. Surely, even the greediest conscience can see this?
Doesn’t Reid have sufficient for his needs by now? Stuart, for YOUR own good, return the money, or get creative and give it to relief efforts in the Gulf coast. I really don’t care which, I just don’t want to see you take advantage of a City where residents struggle to earn a livable wage.
Have now gone through part of Utah Code which will add to this discussion. Here is how things are supposed to be working here: Am printing the whole thing because it's something we all should know.
10-3-1219. Council-mayor form -- Powers and duties of mayor.
(1) In the optional form of government known as the council-mayor form, the mayor shall be a registered voter of the municipality from which he is elected and shall be elected for a term of four years.
(2) The mayor shall be the chief executive and administrative officer of the municipality and shall:
(a) enforce the laws and ordinances of the municipality;
(b) execute the policies adopted by the council;
(c) appoint and remove administrative assistants, including a chief administrative officer; and
(d) with the advice and consent of the council, appoint department heads and all statutory officers, commissions, boards, and committees of the municipality, except as may otherwise be specifically limited by law;
(e) remove department heads and officers and employees, commissions, boards, and committees;
(f) exercise control of all departments, divisions, and bureaus within the municipal government;
(g) attend all meetings of the council with the right to take part in all discussions and the responsibility to inform the council of the condition and needs of the municipality and make recommendations and freely give advice to the council, except that the mayor may not vote in council meetings;
(h) appoint a budget officer to serve in place of the mayor for the purpose of conforming with the requirements of the Uniform Municipal Fiscal Procedures Act and in all other respects fulfill the requirements of that act;
(i) appoint, with the advice and consent of the council, a qualified person to each of the offices in cities of recorder, treasurer, engineer, and attorney and, in towns, town treasurer and clerk;
(j) create any other offices that are considered necessary for the good government of the municipality, and make appointments to them;
(k) regulate and prescribe the powers and duties of all other officers of the municipality, within the general provisions of law and ordinance;
(l) furnish the municipal council with a report periodically, as determined by ordinance, that is available for public inspection and sets forth:
(i) the amounts of all budget appropriations;
(ii) the total disbursements to date from these appropriations;
(iii) the amount of indebtedness incurred or contracted against each appropriation, including disbursements and indebtedness incurred and not paid; and
(iv) the percentage of the appropriations encumbered to date;
(m) execute agreements within certified budget appropriations, on behalf of the municipality, or delegate, by written executive order, the power to execute such agreements to executive officials, subject to the procedure described in Section 10-6-138,; and
(n) perform other duties as may be prescribed by this part or may be required by ordinance not inconsistent with this part.
10-3-1269 Council Mayor Form--Powers and Duties of Mayor
Italics mine.
Nothing would do, of course, but that I look up Section 10-6-138, which says:
10-6-138. City recorder to countersign contracts -- Indexed record of contracts.
The city recorder shall countersign all contracts made on behalf of the city and shall maintain a properly indexed record of all such contracts.
10-6-138
Nothing about verbal agreements being proper procedure there.
Furthermore, (I posted this link on another thread, but thought I'd put it here too to keep these codes together:)
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
10-8-1
The council is empowered to control the finances and property of Ogden City, not the mayor.
There.
"The council is empowered to control the finances and property of Ogden City, not the mayor."
Bingo, Dian.
The financial "buck" (I say with amusement at the double endendre) stops at the council level.
That's state law.
Interestingly, the Ogden City Code contains this provision:
2-7-10: TRANSACTION OR CONTRACT VOIDABLE:
Any contract or transaction which was the subject of governmental action by the City in which there is an interest prohibited by this Chapter or which involved the violation of a provision of this Chapter, shall be voidable, at the option of the City.
(1979 Code § 3.50.120; Ord. 94-56, 11-1-1994)
The city council is the city legislative branch. Ultimately it's the council who decides -- under state law -- assuming they're willing to stand up for themselves...
Which is a BIG "if" with the currant pack of brain-dead council zombies.
Does any one know if this scam is in fact being investigated by the state attorney generals office?
Is this something that could be investigated by the US attorney if the old boy network doesn't see fit to protect the tax payers from this rapacious conduct?
If enough noise is made some one in power will have to take a look at it.
As for the SubStandard, well they are a bit of a joke, I think most of us have known that for a while.
Is this Glasmann guy that is running a decendant of Abe Glasmann? Is he connected to the so called news paper? Could the SubStandard be taken to court for falsly advertising themselve's as a "newspaper"?
Great move calling Schwendiman to clarify this, Rudi! So there is no official opinion on this from the AG yet, despite what we read in the local press.
And the council could move to declare the whole severance deal void if it so chose, is what Ogden City Ordinance 2-7-10 says. Good find!
That's quite a step for the Council to take.
With our research on this, the idea of Reid suing for nonpayment of this severance is getting more and more farfetched. If it were improper to make this deal in the manner it was made in the first place, Reid would be in the position of having to state that he had taken part in an improper and perhaps unlawful deal with Ogden City and Ogden City then reneged on it and that is why he is suing. Which is sort of comic, but stranger things have happened.
Ignorance would be no excuse, because a person in city government ought to have at least a rudimentary knowledge of the laws under which it functions. I would hope.
But an official legal opinion would be prudent for the council, I think. I hear they are in the process of obtaining one. That step is one that shouldn't be taken lightly, but has to be taken if there has been an improper contract made.
I really do not know whether the AG is taking a look at this, or how one gets the AG to take a look at this. I don't know whether letters from citizens are given credence or not. But it can't hurt to write them.
Good advice, Dian. I just sent an email to the Utah Attorney General's office. I just outlined our thoughts, cited the code, and explained the importance of investigating such a matter. I have no idea if this will go anywhere, but if I get a response, I will keep the Forum informed. My hunch is that the complaint will fall on deaf ears, unless more letters are sent from the masses.
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