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HomeMy WebLinkAboutexec min of light 07/19/2000 .. '. r r r , RECE\VEO TOWt1 CLERKS OFF ICE 06 HAY - 9 AM II : 07 MANSFIELD MASSACHUSETTS An Executive Session convened at 7:15 p.m. for the purpose of discussing pending litigation. Present were Bradford E. Wills, Chairman; Louis P. Amoruso, Clerk; and Commissioners David W. McCarter and Daniel Donovan. Commissioner Amos M. Robinson recused himself from this session. Light Commissioners Executive Session Minutes July 19, 2000 Also present were Town Manager John D'Agostino, Light Department Director Jack Beliveau, Attorney Leonard Kesten, and Town Counsel Robert Mangiaratti. Attorney Kesten presented a summary of the claim and the resulting trial: The Board of Selectmen voted in January of 1998 not to renew Mr. Larch's contract. The contract would have expired, but required notice of four months. It was going to expire June 30th, as it did. The law provides that you can choose not to renew for any reason, except an illegal reason. The reason the case went to a jury was the claim that there was a violation of the so-called "whistle-blower act." John Larch's claim was based on a provision of the law that says you can't do something bad to an employee because they refused do something they believed was illegal. It arose from an allegation in 1996 when the Light Commissioners approved an apprentice lineman position. Frank Colella urged Mr. Larch to hire a particular individual. When the position was posted, an inside person applied. The union contract mandates hiring a qualified inside candidate whenever possible. Mr. Larch claimed that Frank Colella became enraged and he and Mr. Mahana conspired and tortured him at subsequent meetings. Two years later they voted not to renew his contract in retaliation. The original defense was that nothing was wrong with Frank Colella recommending strongly for a candidate to get this job. John Larch's contention was he had to hire someone else because of the union situation. It became clear that the real factors were John Larch encouraged the individual to apply for the job. He then admitted that he never was going to hire Mike Forbes, despite previously going to Frank Colella and Norman Mahana and telling them if they created the position, he would hire Mr. Forbes. Then he admitted he was never going to hire Mike Forbes for anything. He waited three months to fill the . position trying to avoid hiring Mike Forbes. The inside candidate applied and the meter reader position came open. Juries often feel bad for employees, and that's what happened-they awarded Mr. Larch $607,000. The only issue is lost wages and increased pension benefits. $607,000 represents the amount John Larch would have had if he kept his job from the time he was let go until he retired at age 65. Final judgment, if it stands, also includes statutory interest of 2410 ($150,000.) The statute also allows for the award of attorney fees and costs, amounting to Executive Session Minutes of July 19, 2000 Light Commissioners Meeting 1 { r r .. ~-. $120,000, for a total of $900,000. The Judge may double or triple the award, bringing it up to $2.7 million on the outside. The Town will have a more realistic idea of what's available to us as soon as the judge issues the judgement and files the motion. It could all get tossed out, or it could be reduced to the $211,000 value of the 3-year contract, or less. When you lose a job for the wrong reason, you don't get damages to age 65. At the expiration of the contract, the Board was free to make Mr. Larch an employee at will. There's a very high chance that it will be reduced to the three-year figure. The statute has never been dealt with by the appeals court. Jack Beliveau noted it's been well litigated on a Federal level. Attorney Kesten agreed, noting he believes we will win. If John Larch interviewed many and had a better qualified candidate and the board insisted he hire a lesser candidate, or if Mike Forbes was not qualified, that would be illegal. John Larch admitted Mike Forbes was qualified and he made the decision to disqualify a qualified candidate because a Selectman wanted him to be hired. Mr. Larch, however, had hired Kym Gaissel over a higher qualified candidate and hired two other politically-connected individuals after refusing to hire Mike Forbes. John Larch viewed a recommendation as being okay, but a "strong" recommendation as being illegal. John Larch says he would have hired the individual Frank Colella recommended, but it was illegal because he "strongly" recommended him. Mr. Larch then left the meter reader job vacant to avoid hiring Mike Forbes. A motion will be filed asking the Judge to take out the entire award or reduce it. Mr. Larch has not been awarded attorney fees or interest. It will be up to the Board as to whether to appeal. Mr. Beliveau noted the judgment was against the Light Department - not against the Town. It was a Light Commissioners' issue. If a check has to be written, it has to be written by the Light Department. Attorney Kesten reminded the Board that the judge might not issue a decision for many months. Commissioner McCarter stated his concern about the insurance company trying to back out of paying the judgement and asked the Town Manager to provide the Light Commissioners with copies of all letters of reservation of rights. Town Counsel Mangiaratti said it will be an issue for the Board to consider, but he doesn't see it as one that has to be resolved immediately. He poitlted out that special insurance counsel should look at the policy and reservation of rights, because at some point we may be in a battle with our own insurance company. Discussion followed as to what has been stated in the insurance company letters of reservation, with Town Manager D'Agostino advising the Commissioners he expects another letter will be forthcoming. Also discussed was the role Attorney Kesten has played in the proceedings, who he represents, who is paying him, and what his role would be in any appeal. Attorney Executive Session Minutes of July 19, 2000 Light Commissioners Meeting 2 r- r -.. ., . Kesten noted he's hired by the Town's insurance company to represent them, and he would play no role if there were a dispute between the Town and the insurance company down the road. Town Counsel Mongioratti reminded the Commissioners thot ot this point the dispute is still between the Light Department and Mr. Larch, with Attorney Kesten being neutral in that. He suggested the next step should be to get the policy, review it, and talk to staff about hiring a specialist in insurance law to see if there a precedent in this sort of issue. Mr. Beliveau recommended that the Light Department hire counsel to work with Lenny Kesten and Bob Mangiaratti to insure the Light Department's interests are represented and to protect the deal with the insurance issue. He reminded the Commissioners that Kym Gaissel made it clear she's going to file two suits-one for sexual harassment and the other the same as John Larch's - that Mike Forbes was not hired and you retaliated. Commissioner MCCarter noted the Light Commissioners played no role in firing her. Mr. Beliveau reminded them of Amos Robinson's testimony that there was a hit squad to get rid of Kym Gaissel and John Larch. Attorney Mangiaratti suggested the Town should go forward if we lose because it sets a bad precedent for other boards. He also recommended that Lenny Kesten continue to represent the Town because we've spent a lot of money on insurance premiums and Attorney Kesten is being paid by the insurance company. The next question is, if we get all the way down the line and he loses the case and after appeals are done, the insurance company has paid all of Mr. Kesten's fees. At that point it gives us the opportunity to say to the insurance company "we lose, we paid, that's why we have insurance." Then our dispute is not with Mr. Larch, but with the insurance company - General Starr Insurance. We then hire our own insurance counsel to go to war with the insurance company and decide if there's coverage. If Lenny Kesten wins, we don't have to worry about coverage. We will get something from the insurance company and they will pay Lenny Kesten. Attorney Kesten stated he will, with the Commission's approval, proceed with post trial motions. He noted there will be an appeal either way, and at that point Commissioners can decide whether to appeal. Town Manager D'Agostino said he would get everything from the file regarding the Larch case and reservation of rights and will have the information available for an insurance attorney to review and give us advice. Discussion followed regarding the procedure and possible outcomes. Consideration of making a settlement offer was also discussed. Mr. Beliveau suggested that any Executive SeSSion Minutes of July 19,2000 Light Commissioners Meeting 3 T ; .. r- offer to settle would be a colossal mistake because it will have set a precedent when Kym Gaissel files, noting our responsibility to the ratepayers to minimize this. Further discussion ensued regarding decisions made by Judge Toro in not making summary judgement. It was noted that we have a new judge now who is no longer bound by Judge Toro's decision. Clerk Amoruso suggested we go forward with post trial motions and evaluation of the insurance policy. Attorney Kesten advised Commissioners that he will keep them advised if there is an offer to settle. Town Counsel Mangiaratti summarized the agreed upon actions as follows: · Direct Larry Kesten to ask for settlement demand and report back to Town · Go forward with post trial motions · Town Manager will assemble all information on the policy and investigate the coverage issue with Town Counsel. A decision will then be made as to whether to go to a special counsel · Decide where to go from there r Motion: To direct Attorney Kesten to ask for a settlement demand and report back to the Town; to go forward with post trial motions; for the Town Manager to assemble all information on the insurance policy and investigate coverage issues with Town Counsel, then decide if we will hire special counsel and report back to Board of Selectmen. (Amoruso-Donovan) Roll Call Vote: Donovan, aye; McCarter, aye; Amoruso, aye; Wills, aye Motion passes 4-0 with Commissioner Robinson not present. This portion of the Executive Session ended at 8:15 p.m. Following a five minute recess, the Executive Session continued, with Selectman Robinson participating in the balance of the Selectmen's portion of the Executive Session meeting. .f4:je~&JA Ll(' J-(Oto Date Minutes Released - Executive Session Minutes of July 19,2000 Light Commissioners Meeting 4 -I