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HomeMy WebLinkAboutmin light comm 082807 , , r', ~. r. "'" \ I E f'\ ;''''':; t~j t -l U Mansfield Municipal Electric Department ' . r', I' r J f' r Minutes of Light Commissioners Meeting 0"1 (;1="0 '8 Pl'l 3' 09 August 28, 2007 '-'-' 1 I . f {.'i_ ( "'~'" 0 I\,~ ^ ('r:.'~. rin'JI"'ETU I !'.\.) '.: "" .,./: : '- ,) Present: Chairman David McCarter; Vice Chairman George Dentino; Commissioner u Amoruso; Commissioner Sandra Levine; Director Gary Babin; Staff Accountant Ken Thomson; Engineer Ann Langille; Engineer Chris Cox; Financial Assistant Jacqueline Lee and Town Manager John D'Agostino Light Commissioner Meeting The meeting was called to order at 7:33 PM followed by the Pledge of Allegiance. Chairman McCarter thanked the School Committee, who was also meeting this evening, for changing meeting rooms with the Selectmen. He stated that the Board was meeting this evening to vote on the proposed settlement of the John Beliveau case. He said that Attorney Leonard Kesten has been working with Town Counsel Robert Mangiaratti as well as Light Department Attorney Ken Barna on this matter. Mr. Mangiaratti said he met with Mr. Kesten a week ago and he reported that Mr. Beliveau's counsel had contacted him and was willing to settle the case. For a monetary settlement, Mr. Beliveau would waive certain interest on the court judgment and his legal fees would also be reimbursed as part of the settlement. Mr. Mangiaratti then distributed to the Board a four page recommendation from Mr. Kesten and a release and settlement agreement that had already been signed by Mr. Beliveau. Mr. Mangiaratti then reviewed the release and settlement agreement with the Board. He stated that Mr. Kesten says the verdict is fact finding by the jury. Chairman McCarter reiterated that there has been a verdict but not a final judgment in this case. Mr. Mangiaratti explained Mr. Beliveau's award included $255,000 for lost wages, $150,000 for stress and $250,000 in punitive damages for a total of $655,000. He cautioned that it was possible that the $255,000 award may be increased to over $750,000 upon appeal as Mr. Beliveau could receive triple damages on that amount. The sum of $1,010,385.43 would have to be paid to Wolf, Block, Shorr and Solis-Cohen LLP for Mr. Beliveau's legal fees. Mr. Kesten did not believe the legal fees were out of line. The payments would have to be made by wire transfer no later than August 31. Mr. Kesten recommends accepting the settlement to bring closure to this matter. He believes that the Town could have proved that some of the statements made by the plaintiffs were made in bad faith but the judge exercised his right to keep evidence from being introduced. Vice Chairman Dentino questioned whether this was a civil rights violation under the Whistle Blower Act and that a motion could have been filed to make Town Manager D' Agostino pay. He believes it was previously discussed and that the judge in the case did agree. Mr. Mangiaratti did not think this was a civil rights violation. __.....T Chairman McCarter questioned why his name was among those listed in Mr. Beliveau's Release and Settlement Agreement. Mr. Mangiaratti did not believe any individuals were named in the Beliveau case. There were individuals named in the Stoyle suit but they were dismissed by the judge at the beginning of the case. The names of town officials were added to the release as a precaution against future claims against the individuals, personally. Mr. Mangiaratti said in summary that Mr. Kesten was disappointed with the findings and disappointed with the judge's rulings. Mr. Kesten thought there was a 25% chance for success on appeal but that the Town could also end up paying significantly more. With regard to the document entitled "Recommendation to the MMED Light Commissioners", written by Mr. Kesten, Vice Chairman Dentino wondered if this would become a public document. Mr. Mangiaratti answered yes. Vice Chairman Dentino stated that the document was 1 12 pages of self-serving information in which Mr. Kesten was retrying the case. He said it has a spin on it, it's not the facts and he doesn't believe this document should see the light of day. Chairman McCarter agreed, saying that the document mentions the Stoyle case and the Board has been told not to discuss the merits of that case as it has not yet been resolved. Mr. Mangiaratti stated that he told Mr. Kesten that the document may become public and he believes Mr. Kesten drafted it accordingly. Vice Chairman Dentino stated that he supported the settlement and commended all the parties but said he didn't want this self-serving document to become a public record. Commissioner Amoruso said it's already a public document because the Board members have been reading from it and talking about it in open session. His belief is if someone wants to see the document, it's theirs. Chairman McCarter questioned that and said that just because it's physically on the Selectman's desk doesn't necessarily make it public. Mr. Mangiaratti said that it is a public document; the question is whether or not it is exempt from disclosure. Attorney/client communications are exempt from disclosure under the public records law. Mr. Mangiaratti said he talked with Director Babin about sources of revenue to pay for the settlement, such as use of the MMWEC Reserve Trust Fund, and indicated that Ken Barna from Rubin and Rudman would further discuss the use of these funds. Mr. Barna said he had analyzed whether the MMWEC Reserve Trust Funds could be used for payment of the settlement. He said that he reviewed the jury's findings, received a memorandum from Mr. Kesten and also had discussions with Town Counsel. He stated that it was their opinion that the funds at MMWEC is money collected from the ratepayers and that it can be used to pay light department expenses, which means that the money could be used for the settlement as the settlement is a light department expense. He pointed out that since the verdict was against the Light Department itself and the Light Department Manager, ratepayer funds can be used to pay the settlement. Director Babin wanted to clarify where the money came from that was on deposit in the MMWEC Reserve Trust Fund. He said there were a total of four deposits made in late 2001 and early 2002 over a 10 month period to establish and fund this account. The deposits totaled $2.9 million and with interest are now worth approximately $3.3 million. Director Babin pointed out that if this money was used to pay the settlement, there would be no expected impact on current electric rates. Commissioner Levine thanked Mr. Barna for making everything clear to her and easy to understand. She questioned what would happen with the balance of the money in the MMWEC fund after payment of the settlement. Mr. Mangiaratti cautioned that the Board should know the outcome of the Stoyle case before committing the remainder of the money for any use, by depositing it in the Depreciation fund for example. Vice Chairman Dentino questioned how the money got in the MMWEC account. He wondered if it was from overcharging the ratepayers. Chairman McCarter stated that it doesn't matter how it got there. Vice Chairman Dentino answered that it could have been given back to the ratepayers. He believes the money was taken out of the ratepayer's pocket and now the claim is that using it to pay the settlement won't hurt them. Mr. Barna clarified that his memo does refer to the money as "ratepayer funds". He explained that the Light Department is authorized to earn up to an 8% return and that the Light Plant Manager and the Board have the discretion to decide how that money will be used. He also explained that when you have a flush of funds for example, that is not charged against net income. The DPU, in the Reading decision, said the Light Department Manager and Board have the discretion to determine how the funds will be used to the benefit of the ratepayers. Motion: To approve settlement of the claim of John Beliveau in accordance with the recommendation of trial counsel, Leonard Kesten; To pay a total of $1,665,385.43 to Mr. Beliveau and his attorneys pursuant to the settlement agreement; To make such payment with MMED funds that have been on deposit with MMWEC; To authorize and direct the Chairman to sign the Release and Settlement Agreement that has been presented to the Board and signed by Mr. Beliveau. (Amoruso/Levine) Passes 3/0/1 (Dentino abstains) Motion: To make public the Release and Settlement Agreement between John Beliveau and the defendants, the Town of Mansfield Municipal Electric Department and John D' Agostino (Levine/Amoruso) Passes 4/0 No motion was made to release the document written by Mr. Kesten entitled "Recommendation to the MMED Light Commissioners". Vice Chairman Dentino objected to Chairman McCarter and Town Manager D' Agostino signing the Release and Settlement Agreement as they were both named in the suit. Mr. Mangiaratti said that Chairman McCarter would be signing on behalf of the Board of Light Commissioners and that he was not named personally in the Beliveau case, only in the Stoyle suit and then the judge dismissed it. Mr. Mangiaratti also added that Mr. D'Agostino's signature was necessary because he is a named party. Commissioner Levine questioned whether the Board had to take a vote regarding the transferring of the money. Commissioner Amoruso said that he didn't think so because the Board had been told that it had already been done. Town Manager D' Agostino stated that the agreement speaks for itself. Motion: To ratify the financial actions of the MMED Manager and Director to transfer funds from the MMWEC fund for payment of the John Beliveau settlement (Levine/Amoruso) Passes 3/1 (Dentino against) Vice Chairman Dentino voted against the motion, saying that it has already been done and now the Board is backing into it. Motion: To adjourn the Light Commissioners meeting at 8:50 (Amoruso) Selectman Dentino said that, in regards to extra counsel for the recall of Selectmen McCarter and Amoruso, he believed in and was willing to accept the actions ofthe Town Clerk. Selectman Levine interrupted saying that this is a Selectmen's meeting now, not a Light Commissioners meeting. The previous motion to adjourn the Light Commissioners meeting was passed and after adjourning the Light Commissioners meeting, a Selectmen's meeting was called to order. Respectfully submitted: Jacqueline Lee 9/17/07 ~K) i\\(f ,. {\O~lG:0 Signature of Clerk -... ,