Oct
17
Q&A from a JDNews reader
Filed Under Uncategorized | Leave a Comment
Below is a direct Q&A requested by a JDNews reader.
Q: Please list the personnel documents you reviewed to determine Mr. Bauer had not been warned, counseled, or disciplined for misconduct.
A: I have reviewed Mr. Bauer’s contract. There is a provision that allows the Council to suspend him without pay. I believe that the council could have suspended him without pay which would have sent a message to him and the public that there were concerns to be addressed. The suspension would have been public record and likely reported by the JDNews. I have not seen any such report of a suspension.
Q: Please identify the persons with whom you have spoken to determine whether Mr. Bauer was warned, counseled, or disciplined for misconduct.
A: I have not spoken to anyone to determine whether Mr. Bauer was warned. It would have been an exercise in futility as those that fired him made it clear that they would not discuss the matter.
Q: Please identify any times Mr. Bauer failed to get raises which may have reflected substandard performance, if any.
A: I reject the notion that failing to get a raise reflects substandard performance. There was a councilmember who fired Mr. Bauer that said as much on June 16th, saying instead that in the present market people ought to thank God to simply have a job.
Q: How many wrongful termination cases have you handled?
A: I assume the relevancy is actually whether I claim to have any expertise in this matter. I am not stating or implying that I have any expertise in this matter. My opinions and beliefs are based on observation and common sense.
Q: In those cases, were you able to determine the results of the case without speaking to any witnesses or researching any documents?
A: Please see the above response, with the addition that I have researched the relevant document (Mr. Bauer’s contract).
Q: When did you review Mr. Bauer’s contract?
A: In June 2009, thanks to Thomas Brock who posted it on his blog.
Q: Would it have been possible for his contract to require severance pay even if his performance was not satisfactory?
A: Yes. However, there are several issues here. One is that the councilmembers who fired him did not harp on ‘not satisfactory’ performance as you do. They claim that he refused to do the bidding of the majority of the board and instead was only adhering to the requests of individual councilmembers. I believe this is not a question of performance standards, that is outright insubordination (as the councilmembers said on June 16th). That is “willful or gross negligence, dishonesty, unethical conduct” which Section 6 allows for termination without severance pay. You may believe him to have served unsatisfactorily—I would respond that he did serve satisfactorily and that was not the stated reason why he was fired.
The stated reason was that he was insubordinate in not following the direct demands of the majority of the board. I believe that rises to the level required by the contract to terminate without severance. By not pursuing that the Council gave away $112,000 of severance pay (our tax dollars) that it should not have. However, I frankly do not believe it mistakenly gave away the money. Instead, I believe that money was owed because the termination was for personal/political reasons—which is valid under the contract. I believe they validly terminated it, I just don’t think they wanted to fess up to the reason.
Q: Is it possible that the contract the BMW’s executed may have required gross mismanagement before the severance was forfeited?
A: No. The contract required “willful or gross negligence, dishonesty, unethical conduct or for the conviction of an illegal act related to the duties of his office” for the severance to be forfeited. As explained earlier, I believe refusing to carry out the will of the majority of the board (as stated by the councilmembers who fired him) would rise to that level.
Q: Why would the BMW’s execute a contract that required the city to pay for a car allowance for nine months after the city manager no longer worked for the City?
A: I dislike your “BMW” language as it implies you are making this a political issue rather than a discussion of a policy decision. Furthermore, I do not see how this is at all relevant to our preceding conversations. However, because you earlier took such offense to me not addressing every one of your questions, I will answer this with my opinion. The “car allowance for nine months after the city manager no longer worked for the City” would be part of the manager’s normal benefits received during employment and thus extended through severance. I imagine part of that decision was for ease of contract. Stating that severance includes “all benefits then in effect” is easier to write and negotiate than to itemize each benefit and any future benefits added or removed since the time of signing the original contract. I also imagine part of that decision was to make the contract attractive to the prospective manager. Finding the right match is difficult and thus the contract can serve as an equalizer where there are issues present. For instance, a political volatile municipality may have a history of fickle councils who often fire managers. A prospective manager may seek the challenge, but understandably request some monetary assurance (in the form of a severance package).
Q: Why would the BMW’s allow a severance package paying for membership in Jacksonville organizations for nine months while Mr. Bauer works in Fayetteville?
A: I believe this is the same question as above, only more broad. I would simply restate my same answer for the most part. I would only add that the next contract may need an even more lucrative severance package as most applicants will now look at Jacksonville’s immediate history and be worried about politics causing them to unnecessarily lose their job. In the advertisements for municipal managers you sometimes see a statement that ‘our jurisdiction is replacing a manager who is retiring after xx years, we have had only x managers in x years”—this is significant to applicants because longevity is desirable and shows stability. Wantonly firing a well-liked and effective manager does just the opposite.
Q: Since you have reviewed the contract executed by the BMW’s, is it one you would have executed?
A: I am unsure without knowing all the relevant facts, particularly the caliber of the other other candidates at the time. However, I do take issue that the contract was indefinite and not set for renewal at a date certain. Having a renewal date allows for a board to remove a manager for personal or political reasons (as I believe this board did) without having to pay a severance package. I think it is fair to have both a severance package (to protect the manager) and a renewal date (to protect the council); it is also necessary to retain the language that speaks of ‘willful negligence’ to protect the public from an ineffective manager. I would have executed the contract if it included a renewal date.
Comments
Leave a Reply
You must be logged in to post a comment.