News
Manager
contract draws criticism
By Elizabeth Prata
Gray-Town Manager Mitchell A. Berkowitz was hired
four years ago to administer the operations of the
Town of Gray. Part of what comes with the profession
is not only the day-to-day management of a town, its
operations and personnel, but the terms and conditions
of tenure. Unlike in the private sector, a manager's
contract is a public document and as such, the public
may speak to its terms and provisions. Tuesday night
at the regular Council meeting, the public did.
What
drew their attention was that the contract was to
be amended in the middle of its cycle. The change
would extend Mr. Berkowitz's employment to 2007. The
current contract ends in 2006 and was executed only
eight months ago. Though the actual negotiations were
held in executive session, the contract itself with
all its changes was to be voted on in public. Left,
Berkowitz [See contract below.]
Opening public discussion on the topic was Councilor
Gary Foster. He said that he had concerns with the
contract. "I was not involved with the original
contract, but there are some items in it that I do
not feel reflect the best interests of the people
of the town of Gray, particularly the termination
sections." Mr. Foster continued, "I would
like to change the 6 months' termination clause to
1 month. I would reduce the insurance severance to
1 month as well. The retirement contribution at 11%
seems a little generous. And I think that the last
sentence in section five about his automatic renewal
should be stricken."
Chair Pam Wilkinson said that she was taken aback.
"Why didn't this come up in executive session?"
She then opened the discussion to fellow Council.
Vice-Chair Lynn Olson said that she could understand
Mr. Foster's concern. "It is tough to come into
something that is already in place. But these terms
have been held since the manager started with the
town." Ms. Olson explained that the original
severance was 9 months but that has already been reduced
to 6 months. "I am satisfied with this contract
and would like to see it brought to a vote."
Councilor Matt Sturgis said that he could see both
positions. "It's tough," he said.
Councilor Richard Hall did not speak on the matter.
Citizen Dick Wood asked the Council why they were
rushing to amend the contract. "It runs until
2006. You've got until then to make amendments. Why
now?"
Ms. Wilkinson said that it was because that was the
request that was made during their executive session
discussions.
"So what's the rush?" Mr. Wood said.
"There is no rush," Ms. Wilkinson responded.
Mr. Berkowitz broke in and stated that "The Manager's
contract will not be discussed in public. That is
a negotiation done in executive session."
Wade Trudel of Gray also had a question as to the
amendment's timing. "It's less than a year old,
so I understand Mr. Wood's concern about extending
it." Mr. Trudel's concerns were with the termination
sections that offer automatic renewal if the Council
fails to notify the manager that he will be staying
on, and language in another paragraph that seems at
odds with the earlier paragraphs.
Mr. Berkowitz responded that the manager really does
serve at the will and the pleasure of the Council.
The language protecting the insurance and termination
pay are balance points for a person whose job may
end abruptly. He also explained that it is typical
boilerplate language that is standard in many administrative
contracts. He further said that the contract was not
developed by himself only, but by legal representation
for the town as well as the Council.
Mr. Trudel said that still, "There is something
here that does not sound right. It is less than a
year old so my recommendation is not to extend it.
It reeks a little bit."
Don Crandall of Gray asked, "Has this been negotiated
in good faith by all parties? Has this been reviewed
by the Attorney? If so then I would move on it and
put it to a vote."
Fran Monroe asked why the manager would receive full
health care benefits when COBRA is a mechanism that
allows the terminated person to stay on the company's
health care plan, not that the company pays for it
in full. She also wondered why the contract was being
looked at annually.
Terry Wilkinson was also concerned. "If you have
an established contract to 2006 then why amend it
now. I understand Mr. Berkowitz would want the security.
Lots of things can happen in a year. Lots of things
are happening. There are many unhappy natives in town.
I recommend you wait until next year to deal with
this."
With public discussion concluded, the Council voted
4-1 (Foster opposed) to extend the contract.
Gray
Manager Mitchell A. Berkowitz's contract
EMPLOYMENT AGREEMENT
This Agreement is entered into by and between the
Town of Gray ("Town"), a municipality duly
organized and existing in the State of Maine, and
Mitchell A. Berkowitz ("Berkowitz") of Gray,
Maine.
WHEREAS, the Town has extended an offer of employment
to Berkowitz subject to the terms and conditions set
forth in this Agreement; and
WHEREAS, Berkowitz accepts employment on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits
and obligations set forth in this Agreement, the parties
agree to the following:
1. EMPLOYMENT: The Town agrees to employ Berkowitz
as its Town Manager, including the subsidiary, related
positions of Town Clerk and Tax Collector/Treasurer
(hereinafter collectively "Town Manager"),
and Berkowitz agrees to perform all duties of Town
Manager as specified by law, ordinance and charter
and to perform such other duties as assigned by the
Town Council.
2. TERM: This Agreement shall be for a term of two
(2) years, commencing July 1, 2005 and expiring June
30, 2007 unless terminated earlier as provided in
paragraph 11 herein. This Agreement may be renewed
subject to the provisions of paragraph 5 of this Agreement.
3. COMPENSATION: The Town agrees to pay Berkowitz
an annual salary based upon the salary level of seventy
two thousand nine hundred and four dollars ( $72,904)
as of June 30, 2005 that is increased annually during
the term of this Agreement. Berkowitz shall receive
the same increase agreed upon for all senior salaried
employees for each of the years of this Agreement.
Hereafter compensation shall be reviewed by July 1
of each year.
4. PERFORMANCE REVIEW: The Town Council shall complete
a performance evaluation of Berkowitz by May 1 of
each year.
5. RENEWAL: Berkowitz will notify the Town Council,
in writing on or before the November 1 immediately
prior to the expiration of the Agreement, that the
Agreement will be automatically renewed for an additional
one year period if the Town Council does not notify
Berkowitz of its intention not to renew the Agreement
or has not negotiated a new agreement by the January
1 preceding the expiration of the Agreement.
6. RETIREMENT: The Town agrees to contribute an amount
equal to Eleven Percent (11%) of Berkowitz's base
salary to his retirement fund.
7. CAR ALLOWANCE: Berkowitz will provide his own vehicle
for use on Town business, and the Town agrees to pay
Berkowitz the sum of Two Hundred Fifty Dollars ($250)
per month as a vehicle allowance. For any trips that
are beyond a 40-mile radius of the Gray Town Hall,
the Town will reimburse Berkowitz on a per mile basis
for said trips at the mileage rate applicable to other
Town employees.
8. PROFESSIONAL DEVELOPMENT: The Town agrees to pay
up to One Thousand Five Hundred Dollars ($1,500) per
year for Berkowitz to attend seminars, conferences,
courses or other activities related to his continued
professional development.
9. VACATION: Berkowitz shall be entitled to (3) three
weeks of vacation in each year of this Agreement.
10. OTHER BENEFITS: Other benefits not otherwise addressed
in this Agreement such as health insurance, sick leave
and holidays shall be provided in accordance with
the Town's policy for other Town employees.
11.
TERMINATION: The Town may terminate this Agreement
for any reason at any time, provided, however, that
the Town shall pay Berkowitz per the following schedule:
July 1, 2004-June 30, 2005- Nine (9) months of salary
(and a pro-rated amount of vacation time) if it terminates
his employment other than for extraordinary cause
(defined for this purpose to mean misconduct involving
either an illegal act or an act of moral turpitude);
provided any such payments to be on a monthly basis
on the first of the month; provided, further, any
such severance payments are to be terminated upon
his re-employment.
July
1, 2005-June 30, 2007-Six (6) months of salary (and
a pro-rated amount of vacation time) if it terminates
his employment other than for extraordinary cause
(defined for this purpose to mean misconduct involving
either an illegal act or an act of moral turpitude);
provided any such payments shall be made in two installments.
The first payment for the first three month period
shall occur within (5) calendar days from the effective
date of termination and the second payment for the
remaining three month period shall occur between the
93rd and 95th day from the effective date of termination.
Both payments to equal six months of compensation
at the rate being paid Berkowitz at the time of termination.
The
Town will pay the COBRA premiums for Berkowitz's continued
health insurance for either the nine month or six
month periods above and for the 30 days after Berkowitz
begins other employment, whichever occurs first. Berkowitz
shall be eligible to continue the health insurance
provided by the Town at his expense up to the full
COBRA period with payments made directly to the Town
of Gray as required by the Controller. Non-renewal
of the Agreement shall be considered a termination
for purposes of this paragraph.
12. SICK LEAVE BUYOUT: If Berkowitz leaves the Town's
employ for any reason including, without limitation,
death, disability, resignation, retirement or dismissal,
he shall be paid for accrued sick time, in accordance
with the Town of Gray's Personnel Policies.
If Berkowitz dies prior to termination of this Agreement,
any such payments above shall be made to his surviving
spouse.
13. NO REDUCTION IN BENEFITS: The benefits provided
to Berkowitz under this Agreement will not be reduced
by the Town during the term of this Agreement, except
to the extent any such reduction is made for all Town
employees.
14. INDEMNIFICATION: The Town shall defend and indemnify
Berkowitz from any and all claims, liabilities, losses,
damages and expenses, including reasonable attorneys'
fees, as a result of acts Berkowitz performed in the
course of and within the scope of his employment as
Town Manager. This obligation to defend and indemnify
is made with the understanding that the Town will
defend Berkowitz with its own legal counsel and shall
pay attorneys' fees for separate counsel only in the
event that Berkowitz is required to retain separate
counsel. Berkowitz shall, as a condition precedent
to receipt of this indemnification, cooperate with
the Town and its legal counsel in the defense of any
related action, claim, or proceeding.
15. SEVERABILITY: if any provision or portion of this
Agreement is held to be invalid or unenforceable,
the remainder of this Agreement shall not be affected
and shall remain in full force and effect.
16. WAIVER: No term or provision of this Agreement
shall be deemed to have been waived by either party
unless such waiver is in writing signed by both parties.
17. ENTIRE AGREEMENT: This Agreement represents the
entire agreement between the parties and may not be
modified or changed unless such modification or change
is in writing signed by the parties.
DATED
this 5th day of April, 2005
Mitchell A. Berkowitz
Gray Town Council:
__________________________ ___________________________
Pamela A. Wilkinson, Chair Lynn D. Olson Vice Chair
__________________________ ___________________________
Matthew E. Sturgis Gary C. Foster
__________________________
Richard B. Hall
