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HomeMy WebLinkAboutMinutes - City Council - 09/06/2011CITY COUNCIL 6 SEPTEMBER 2011 The South Burlington City Council held a regular meeting on Monday, 6 September 2011, at 7:00 p.m., in the Conference Room, City Hall, 575 Dorset St. Councilors Present: S. Dooley, Chair; M. Emery, J. Knapp, P. Engels, R. Greco Also Present: S. Miller, City Manager; R. Rusten, Assistant City Manager; K. Murphy, City Manager’s Staff; J. Rabidoux, Director of Public Works; P. Conner, Director of Planning & Zoning; L. Murphy, Community Library; J. McNeill, P. Lynn, J. Condos, C. Smith, S. Magowan, B. Cimonetti, D. & K. Gravelin, E. Hafter, J. Zaetz, K. Gonyaw, R. Stevens, F. Scanlen, B. & P. Nowak, M. Paustian, T. & S. Sissel, F. Ryan, M. Grover Cleveland, M. Young, G. Silverstein, K. Samberg, D. Fleming, J. Wilson, C. Johnson, S. Dopp, A. Clift, J. Kearns, A. Legg, R. Kay 1. Executive Session: Ms. Emery moved the Council meet in executive session to discuss personnel, litigation and contract negotiations. Mr. Knapp seconded. Motion passed unanimously. Regular Session: 1. Agenda Review: Mr. Miller noted the possible addition of a special event permit request from Ascension Day Care. Members were OK with adding this to the agenda. 2. Comments & Questions from the Audience, not related to Agenda Items: No issues were raised. 3. Announcements & City Manager’s Report: Mr. Engels: Attended meeting of Pension Review Committee on Thursday. He noted the need for education for committee members regarding the Pension Plan. A presentation will be solicited from organizations which can help. Thanked city employees for their hard work during the “Irene event.” Noted the quick response to a tree/power line issue at his home. Ms. Emery: Also thanked Public Works people for their work during “Irene” and the public for reaching out to those in need. Ms. Dooley: Will be attending a meeting regarding the transportation plan. Mr. Miller: Noted the use of the new public address system in the conference room. The Emergency Operations Center was used for the first time during “Irene.” Mr. Miller cited those who staffed the Center. He also noted that Firefighters went to Rutland to help with search/rescue operations, and Police officers were in the Windham area helping over the weekend. Donna Kinville is working with other communities to store their town records which now can’t be safely stored because of flood damage. Upcoming city events include: Firefighters Memorial (9/11), Celebration of shared use path at Tilley Drive (9/15), Fire Department Open House (9/18), Community Day with fireworks and High School athletic events (9/9). The Triathlon went off with generally favorable responses. “Glitches” will be worked on for next year. Ms. Dooley: Read a letter of appreciation to Randy Kay who donated portions of his salary as Planning Commission Chair to purchase the new sound system. 4. Discuss and possibly determine eligibility for Retirement, Long Term Care Benefits, and Home Equity Repayment regarding former City Manager: Mr. Dooley reviewed the history and noted it is the City Council’s job to determine what benefits Mr. Hafter is entitled to. She noted that attorney Joe McNeill was engaged to help with this determination. Mr. Knapp then moved to waive the attorney/client privilege solely with respect to the 5 page communication McNeill, Leddy & Sheehan dated 21 June 2011. Ms. Greco seconded. Motion passed unanimously. Mr. McNeill indicated that his firm had been asked to look at the factual history, legal standards and applicable questions that needed to be addressed. The scope of their work included trying to take into account the City Council’s legal rights regarding Mr. Hafter’s participation in pension/retirement (ICM pension and city retirement) programs, and determining whether the City agreed to pay the premiums for a long term care program for Mr. Hafter. Mr. McNeill noted that there are 2 ways in which an agreement between the city and an employee can be binding: if there is a “direct contract,” or if an entity makes a promise and on the basis of that promise the receiving individual has taken/declined to take steps regarding that promise (promissory estoppal). Vermont will enforce that promise even if it doesn’t meet the “direct contract” test. In any event, no action can be taken in Vermont. Unless it happens in open session and is recorded in the Minutes. Mr. McNeill explained that Mr. Hafter had several contracts during his tenure with the city. Contracts in 1989 and 1992 specified that Mr. Hafter would be entitled to participate in either the ICMA or the city employee’s retirement plan. Mr. Hafter chose to participate in the ICMA contract. Subsequent contracts no longer said ICMA or another plan of his choosing. Later, toward the end of Mr. Hafter’s service, the question arose as to his participation in a long­term care plan. There is little doubt that this was raised for discussion between the City Council and Mr. Hafter. Mr. Hafter has said that he tried to keep his compensation level at the same percentage of increase as other employees were getting and that he would consider other forms of compensation. Long term care was one of those other considerations. The City Council authorized Mr. Hafter to investigate such a program and to report back to them. There is no indication in the Minutes of a decision having been made by the City Council regarding this benefit. There is no doubt the plan was taken out by Mr. Hafter and premiums were paid by the city. Mr. McNeill then reviewed the recollections of City Council members who were in office at the time these matters were discussed. He indicated that 9 former Councilors were contacted. Their recollections were not perfect or the same. The majority felt the Mr. Hafter had made a selection between the city and ICMA plans; others said they were aware Mr. Hafter was in both plans but assumed this had been allowed before their time on the Council. One Councilor thought the decision for Mr. Hafter to be in both plans was made in executive session without objection. There was a vague recollection of action being taken in an open session. Regarding “promissory estoppal,” Mr. McNeill said that responsibility for dealing with this in an open session increases with the nature of an employee’s position (there is more responsibility for a higher position). Mr. Hafter, through his attorney, has provided some information: 1. On an annual basis, Mr. Hafter was listed as a member of both ICAM and the city’s retirement plan. (Mr. McNeill said they have not been able to establish whether those reports were delivered to the City Council) 2. Participation in pension plans was listed in the annual city budget. 3. An undated communication from Mr. Hafter to the City Council Chair Jim Condos indicates Mr. Hafter is enrolled in both plans (Mr. Hafter’s attorney says this is proof the City Council was aware of this). Through his attorney, Mr. Hafter reported that he was actually in 3 plans (city retirement, ICMA, and “another plan of his choosing”). Representation was made that Mr. Hafter had been informed by Mary McKieren that it was not permissible for Mr. Hafter not to be in the city retirement plan. He asked if he could be in both that plan and the ICMA plan and she said yes. Mr. Hafter said the City Council agreed to this in an executive session. Mr. McNeill said Ms. McKieren did not remember this conversation. Mr. Hafter then said it was Peg Strait who had told him this. Ms. Strait later confirmed this conversation and said she had been given this information by the Future Planning Association. Mr. McNeill said it is their conclusion that if the law of contract creation is applied, there was no contract allowing Mr. Hafter’s participation in both plans. As to promissory estoppal, it cannot be verified whether a promise was made in executive session or an open session. There does not appear to be “absolute evidence” of such a promise. Mr. McNeill said it is his recommendation that before making a final decision, the Council hear from Mr. Hafter, either directly or through counsel and also hear any additional testimony. Ultimately, it is the City Council’s decision. Mr. McNeill then addressed the issue of the home equity appreciation and how it should work. He said the city is entitled to a share of the appreciation of the home because of the assistance it gave. This should be resolved directly. Mr. Lynn, counsel for Mr. Hafter, said that a long time ago he had requested documents which he had not received. He got a summary of what people had said, but he was not told “who said what,” what questions were asked, and what documents were had. He said this is not consistent with due process. Mr. Lynn said Mr. Hafter was hired in 1989 to be City Manager. He was offered a choice between the ICMA and city retirement plans. He wasn’t interested in the latter because it took a long time to get vested, so he chose the ICMA plan. The 1992 contract also had an either/or clause. After that, the language changed and it no longer said “pension plan.” During 1992, Mr. Hafter was told that after 3 years all employees were required to be in the city retirement plan and that he was already included in that plan. In an executive session, the City Council said his enrollment in both plans was OK. Budgets indicate that he was in both plans, and as the City Council scrutinizes the annual budgets, they knew and approved of this. Mr. Lynn said it is not unusual for city employees to be in both plans; in fact, it is unusual for them not to be in both plans. In an e­mail to the City Council prior to his final 7­year contract, Mr. Hafter identified that he was a participant in the city’s retirement plan. There were no objections. Mr. Lynn said Mr. Hafter never tried to hide the fact that he was in 2 plans and would often tell people who were being hired that they should participate in both plans and in Social Security as “three legs of the stool.” In 1992, Peg Strait informed Mr. Hafter that he had to be enrolled in the city’s retirement plan. Information on this was in the audit documents that were available to the City Council. Regarding the long term care issue, Mr. Lynn noted that this was raised when Mr. Hafter didn’t want a higher percentage raise than other employees were getting. City Councilor Steve Magowan suggested a long term care option. Mr. Hafter researched this and brought the information to the City Council. The Council agreed to this in an executive session. Mr. Lynn stressed that Mr. Hafter served the city honorably. He asked that the Council deliberate openly. Mr. McNeill noted there is a difference between the type of ICMA participation for city employees and that which was made available to Mr. Hafter. Regular employees have a participation which the city matches. In Mr. Hafter’s case, there was no match required. Mr. McNeill then listed the former City Councilors who were contacted during his firm’s research: Paul Farrar, Jim Condos, John Dinklage, Steve Magowan, Chris Smith, Terry Sheehan, and Dan O’Rourke. He said he would make information from these individuals available to Mr. Hafter’s counsel. Mr. Lynn commented that he found it odd that a year after this issue arose; the city and its attorneys don’t yet know the standards that governed the city’s plans. Public comment was then received as follows: Chris Smith (former City Councilor): The City Council always knew that Mr. Hafter was enrolled in 2 plans. He was forthright and understood his total compensation package. The City Council always believed Mr. Hafter was doing a great job and wanted to reward him. It was Councilor Magowan who came up with the long term care piece which was approved by the City Council. Time was spent with Mr. Magowan and Mr. Hafter discussing that contract. Mr. Smith said there is no question in his mind that the City Council approved that contract. Mr. Smith said he is concerned with a precedent being set by “rewriting the past” and trying to avoid paying an obligation. He felt this will send a chill through every employee. Steve Magowan (former City Councilor): Mr. Hafter is a good person who is having his name dragged through the mud. This is unfortunate because of the process the City Council has taken. The Home Equity program was used by the City Council to attract good people to the City Manager position. Regarding the long term care issue, Mr. Magowan recalled that he was the instigator of this contract and that it actually saved the city money. Regarding Mr. Hafter’s participation in both pension/retirement plans, Mr. Magowan said the Council was told routinely that Arisa governed the plans and that they required participation in the city’s retirement plan. Mr. Hafter is a good person and is entitled to all of his benefits. Elaine Hafter (Mr. Hafter’s daughter): Mr. Hafter loved this city. He could have gotten more money elsewhere but wanted to remain in South Burlington. He has a gift of helping people work together, and the city has a lot to be proud of from his accomplishments. City Council after City Council praised his work. Mr. Hafter would never have taken more of a raise than other employees got, and the Council looked for other ways to reward him. Mr. Hafter has received no pension for a year. This money should be released and let the Hafter’s get on with their lives. Jay Zaetz (citizen): Worked with Mr. Hafter over the years. He was always there when you needed him. The City Council is turning this into a “circus ego trip.” Mr. Hafter negotiated in good faith. Citizens knew he was being paid and what benefits he received. This was always in the printed budget books and was never hidden. He asked the Council to get back to running the city. Infrastructure is a mess. The city is incurring legal fees. Bill Cimonetti (former City Councilor): Was a Council member when Mr. Szymansky announced his retirement. The City Council agreed to a search both in and out of the State and agreed that if the chosen candidate came from outside the state, there be a requirement for the new City Manager to live in South Burlington. When Mr. Hafter was considered as a finalist, there was an assessment of his living situation in North Carolina. This was a small home, but a comparable property in South Burlington would be much more expensive. So the city agreed to take an equity position in the property Mr. Hafter acquired. This was openly negotiated, and there was nothing hidden. Mr. Hafter lived in a rental situation for a few years then purchased his home with participation from the city. This was an intentional, deliberate, well-thought-out idea. The city should recognize the benefits it gained from that. Jim Condos (former City Councilor): Mr. Hafter served the city well and with honor. If he made 3 mistakes; the Council participated in 2 of them. The one the Council didn’t know about was the pension funding shortfall. South Burlington is the envy of many communities. The Council was always very careful about executive sessions. They often came out of these very late at night, after midnight, and then voted. There were never “two pensions.” There was a pension plan and a city retirement plan. This is not uncommon. Mr. Condos was 99% sure the long term care benefit was voted on in open session. He was sure the premiums were discussed in open session. The Council was always aware of both the pension plan and the city retirement plan. Mr. Condos said it was irresponsible for this City Council not to have brought in prior Council members to discuss this before it got to this point. What has been done to Mr. Hafter is shameful, atrocious. Jean Wilson (Town Administrator of Town of Hinesburg): Mr. Hafter’s commitment to South Burlington was always evident and admired by his peers. He was very open about his benefits. It was not an uncommon package. Had great respect for him as a colleague and a person. Dennis Gravelin (former Assistant City Manager): Mr. Hafter was a friend and colleague and a great leader. He had a solid relationship with the City Council. The benefits bestowed on him by former City Councils shouldn’t be second guessed by this City Council. Mr. Condos: Enumerated accomplishments during Mr. Hafter’s tenure, including: Kennedy Drive and Shelburne Rd. reconstruction, Lime Kiln Bridge reconstruction, closing of the landfill, Rec Path, all of Dorset Park, purchase of Calkins property, Overlook Park, Public Works garage, including the Operations Center, updating of Fire and Police Department, new Police Station, planning and zoning that is ahead of its time, leadership in affordable housing, etc. Ms. Greco said she would like to hear directly from Mr. Hafter. Ms Emery agreed. Mr. Smith commented that “suspected witches don’t like going to witch hunts.” Mr. Lynn noted that information was provided to the Council a year ago, and they were then told “the Council knew nothing.” Mr. McNeill suggested the Council take time to reflect before deliberating. Ms. Emery moved to continue this discussion until 12 September 2011. Mr. Knapp seconded. Motion passed unanimously. Mr. Magowan noted that if Mr. Hafter wins in a court case, he will be entitled to legal fees. As a citizen, he was opposed to having to do this. Ms. Sissel cited the importance of minutes. It was noted that during the years in questions, when the City Council went into executive session at the end of a meeting, the Council secretary was told to go home and any action taken after the executive session would be handled by “someone else.” 5. Discussion of City Charter Committee and Charter Charge: Mr. Miller said that in order to meet the warning requirements, a public hearing was noticed for 12 September. He recommended the City Council set public hearings for 3 October and 17 October. Language from proposed Charter amendments can be modified at those hearings. Mr. Knapp moved to set public hearings for 3 and 17 October, at 7 p.m. or as soon as possible after that. Ms. Emery seconded. Motion passed unanimously. Mr. Miller then read the Charter Committee Charge. Ms. Emery moved to approve the Charter Committee Charge as read. Mr. Engels seconded. Motion passed unanimously. 6. Discuss Farrell Street Traffic and Pedestrian Controls and Options: Mr. Rabidoux said there will be 8 locations on Farrell Street and westerly toward Shelburne Rd. for enhanced pedestrian crossings. He then explained how this technology will work, including a push button control to activate a flashing rectangular beacon. The intent is to increase driver awareness. There will be 32 of these in the city. Mr. Rabidoux recommended warning a change in the regulations to get a 3-way stop and other improvements in this area (including narrow crosswalks, crosswalks closer to the intersection, etc.). Mr. Miller noted the process for installing these has gone on for 3 years, and the Legislature was supposed to be “streamlining” this process. He has talked with Brian Searles who has agreed to have his assistant talk with the city. This is a safety issue, and the public is not being served well. Mr. Greco asked about that intersection given the additional development to take place nearby. Mr. Conner said there was a traffic study done regarding this development. There is much less commercial space than originally proposed. The DRB required an independent review of the developer’s traffic study, and there was no finding of the need for enhancement as a result of the proposed development. The Council asked that a proposal for a 3-way stop be brought to a subsequent meeting. 7. Review South Burlington Community Day Event for 9 September and consider approving a Special Event Permit: Ms. Murphy said the event will include displays of municipal services, a field hockey game at 4 p.m., a football game at 7 p.m., and fireworks at 9:30 p.m. The event is sponsored by G.W. Savage. Ms. Emery moved to approve the Special Event Permit as presented. Ms. Greco seconded. Motion passed unanimously. 8. Consider Approval of Special Event Permit for Vermont Association of the Blind: Ms. Dooley noted this is a 2-mile walk at Dorset Park on 18 September. Ms. Emery moved to approve the Special Event Permit for the Association of the Blind as presented. Mr. Knapp seconded. Motion passed unanimously. 8a. Consider Approval of Special Event Permit for Ascension Day Care: Ms. Gonyau said the event will be on 11 September at Dorset Park between 1 and 5 p.m. It will include a concert and carnival and will be free to the public. Ms. Emery moved to approve the Special Event Permit for Ascension Day Care as presented. Mr. Knapp seconded. Motion passed unanimously. 9. Consider entering executive session to discuss contract negotiation and legal matters: Ms. Emery moved that the Council meet in executive session to discuss contract negotiations and legal matters and to resume regular session to complete the agenda. Mr. Engels seconded. Motion passed unanimously. 10. Discuss and Consider a Resolution Obligating the City of South Burlington’s $1,000,000 SAFETEA­LU City Center Earmark Pursuant to Congressional Requests: Mr. Rabidoux explained that they now have better guidance from the State. They are looking for a commitment “with teeth,” specifically a match for the preliminary and final phases of the job. He stressed the need to take this seriously. Mr. Miller said the $200,000 will come from transportation impact fees and won’t be spent “tomorrow.” Ms. Dooley noted this project was included in the list for which impact fees can be used. Ms. Emery moved to approve the resolution as presented with a matching $200,000. Ms. Greco seconded. Motion passed unanimously. 11. Consider Ratification of A Tentative Agreement with the Water Pollution Control Employees Association - WPCEA: Mr. Knapp stepped down due to a potential conflict of interest as he is part of a law firm that represents WPCEA. Mr. Miller noted this is a one-year agreement that includes a 2% wage increase on top of the step. He commended the bargaining unit for giving up half of the ICMA match they previously had and for agreeing to forego sick-time accrual, which has been capped at 600 hours. This represents a 40-50% reduction in obligation on the part of the city. Ms. Greco moved to ratify the agreement with WPCEA as presented. Mr. Engels seconded. Motion passed unanimously. 12. Minutes of 15 August 2011: It was noted that on p. 3, in the first paragraph under item #4, it was the Chair that asked for a motion. Also in paragraph 5 of that item, it was the Chair that noted the repayment of the $15,000 part of the loan. Mr. Knapp moved to approve the Minutes of 15 August as amended. Ms. Emery seconded. Motion passed unanimously. 13. Sign Disbursement Orders, including disbursements made by Champlain Water District on behalf of South Burlington: Disbursement Orders were signed. 14. Other Business: Mr. Miller: Talked with CCTV regarding possibility of a live feed for City Council or other meetings. There would be no additional costs to the City. Members thought this was a good idea. There is additional technology that can be used to get better postings on the website and providing I-pads to Councilors and Department personnel. The Council asked for additional information on these options. Mr. Miller stressed that it won’t happen overnight. Mr. Miller also asked the Council if they would like to discuss a “project coordinator” position. Members said they would support looking at a model for this. Mr. Rusten: This Friday, warrants for the City Council meeting will be transmitted to members by PDF. 15. Executive Session: Ms. Emery moved the Council meet in executive session to consider litigation and to resume regular session only for the purpose of adjournment. Ms. Greco seconded. Motion passed unanimously. 16. Resume Regular Session: Council returned to regular session. As there was no further business Mr. Knapp moved for Council adjournment. Ms. Dooley seconded. Motion passed unanimously. Council adjourned. _________________________ Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works.