Charter Compliance Groups Wants Language Struck From Guerino’s Contract

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By: Diana T. Barth
Published: 07/05/12

The Bourne Charter Compliance Committee has asked selectmen if they would be willing to strike the language in Town Administrator Thomas M. Guerino’s contract that says, in essence, that the provisions in the new two-year contract “supercede” those made in the charter.

The group voted unanimously to make that request during its meeting last week—a meeting prompted by a complaint made by Richard W. Conron, who asserted that selectmen violated Bourne’s Home Rule Charter when they entered into an employment contract with Mr. Guerino.

Before their vote, committee members adopted the recommendations of special counsel Michael D. Ford of Harwich, who was appointed to assist the group with any legal questions they might have.

Mr. Ford’s opinion was that the board of selectmen had no authority to supercede the charter. However, he added that he had carefully reviewed the contract, the charter, and Massachusetts law and had come to the conclusion that nothing in the contract was actually in violation of the charter. The language saying the agreement would supercede the charter was, in his opinion, unnecessary.

The committee also debated and voted on a second issue raised by Mr. Conron. That issue dealt with language in Mr. Guerino’s contract that says, specifically, that if he delegates a responsibility to a department, that director should be left alone to act “autonomously.”

Mr. Conron, and members of the compliance committee felt that language was in contravention of the section of the charter that enumerates the town administrator’s duties, one of which is to be the direct supervisor of department heads.

Having again looked carefully at the contract, the charter, and the law, Mr. Ford pointed committee members to language in the agreement that specifically states that it has to be interpreted in light of the town charter.

He did not feel that language rose to the level of a charter violation because it could be interpreted in compliance with that document’s provisions.

Compliance committee member Renee D. Ziegner said, however, she thought that the word “autonomously” was too powerful a word to leave in the contract. Ms. Ziegner worried that it could, in the future, be used to take power and authority away from the administrator.

Mr. Ford repeated that he thought the language, while perhaps not perfect, was not a charter violation. He suggested that, instead of asking selectmen to change the provision, that the committee write to ask them how they interpreted the clause and to explain their intent in proposing that language in the agreement, since it might be unnecessary to take more drastic action.

Committee member Wayne C. Covell moved to adopt that suggestion, and the committee voted unanimously in favor of that motion.

The committee had felt constrained in that they had no one to ask about intent. None of the selectmen attended the group’s public hearing to defend the language of the contract, which they saw as involving a legal question.

At least one selectman had said concerning “autonomous” action by a department, prior to and outside of last week’s meeting, that if the town administrator could delegate a duty, he could condition it or take it away.

Selectman Earl V. Baldwin did testify at the public hearing on the complaint, held earlier this month, but said he thought that some of the language in the contract did violate the charter.

Mr. Ford touched on one other issue that Mr. Conron did not. That was whether, now that the latest charter changes had been approved by the attorney general’s office and the Legislature, the town administrator, whose family lives in Vermont, might be in contravention of the residency language in amended charter.

Mr. Ford said the agreement was signed before the charter changes were approved, so the agreement was not in contravention of any such provision.

After the meeting was over, Mr. Ford was asked whether the committee’s request to strike the language in the administrator’s employment agreement alluding to an ability to supercede the charter would open all of the provisions of the contract up to possible revision by a changed board. Linda M. Zuern, for example, was elected to the board of selectmen after the agreement was signed.

Mr. Ford said that question was beyond his purview and suggested that it be one for Town Counsel Robert S. Troy.

He, however, said he would check to ensure that his appointment as special counsel was a continuing one and would, if it was, review the second charter violation complaint. That one, submitted by Judith W. and Richard W. Conron, complains that both Selectman Donald J. Pickard and John A. Ford Jr. exceeded their authority under the charter by requesting employee e-mails unilaterally, as chairmen, without a prior vote of the board authorizing those requests.

 

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