Returning contract clause would spare city manager legal damages
Cambridge City Manager Robert W. Healy discusses an agenda item at a City Council meeting in January. (Photo: Kristy Robinson)
The meeting was so short that residents showing up a few minutes late actually arrived after the meeting itself, with the city officials running it already gone.
But the three-minute, 20-second (give or take) gathering of the City Council’s Government Operations and Rules Committee on Wednesday addressed a weighty issue: returning a clause to the city manager’s contract that protects him from legal action for work done for the city; and paying him his regular hourly rate if he returns after retirement to testify or consult on those legal actions.
The indemnification clause was missing for five years from contracts for Robert W. Healy, going uncaught in documents signed Feb. 27, 2006, and Jan. 12, 2009. It had been on contracts signed in 2000 and 2002.
The city manager told committee co-chairs Tim Toomey and Sam Seidel of the problem June 1, calling it a “clerical error” he discovered when responding to a Freedom of Information request. The error went uncaught by the officials crafting it: Healy and then city councillors David Maher and Brian Murphy. (Maher remains a councillor and mayor; Murphy is assistant city manager for community development.)
The Law Department has no role in the drafting or approval of the contract beyond essentially performing as a notary as it is signed, City Solicitor Donald A. Drisdell said Thursday. City lawyers approve it as signed but “do not have substantive review of merits or terms,” he said.
Seidel was missing from the meeting, but vice mayor Henrietta Davis was on hand to vote with Toomey to return the indemnification clause “missing by mutual mistake” retroactively to both contracts. The matter now goes to the full City Council for action.
Residents react
The sole speaker during public comment was resident Priscilla McMillan, who wondered whether the action was allowed by the city’s constitution. “I believe we can amend the contract at any time,” Toomey told her, and Healy said Drisdell had already confirmed the constitutionality.
If the council adopts the change, the most obvious legal proceedings from which Healy would be spared liability is the wrongful-termination claim by Malvina Monteiro, in which the city faces a potential payout of $10 million including legal fees and the interest accruing during an appeal. The case was decided in 2008, with Monteiro winning $4.5 million and a judge calling Healy’s behavior in the matter “reprehensible” and his testimony “inconsistent and incoherent.” Two cases similar to Monteiro’s may be in court this summer.
Whatever the ultimate impact, the meeting broke up quickly, with Healy, Toomey, Davis and the city clerks heading in various directions and McMillan and another three citizens lingering in Sullivan Chamber. Five more residents came in shortly after 5:30 p.m., surprised to find they’d missed it all.
They wondered whether the meeting had been properly posted and if a mere two councillors constituted a quorum for conducting city business. Politics watcher Robert Winters reminded them that all council committees operate this way.
East Cambridge’s Heather Hoffman, a lawyer, was surprised by the request for indemnification because she didn’t think Healy had been named as a defendant in the Monteiro case and was protected anyway as an employee acting for the city.
“Which raises the question, why are we going back to do this?” Hoffman said. “If a judge says this was outside the course of your employment, so you’re being held liable individually, and the city nonetheless wants to indemnify him … that would bother me as a taxpayer.”
Real estate agent Pebble Gifford was also unhappy with the ultimate burden for the case resting on the taxpayer, since Healy “has called the shots from day one on this and ignored advice to drop it, let it go, pay it off and get done with it.”
“Where are we going to see this in the budget?” she asked.
On the matter of what constitutes a quorum (I won’t bother with the rest of the spin), there was an Order by Councillor Simmons on Aug 6, 2006 that would have addressed this. Here’s the Order:
O-4 August 7, 2006
COUNCILLOR SIMMONS
ORDERED: That Rule 26 of the City Council Rules be amended to require a quorum for meetings of City Council committees and further that the quorum for said committee meetings be defined as a majority of the members of the committee; and be it further
ORDERED: That Rule 26 as amended shall read as follows:
Rule 26. The Mayor shall appoint the standing committees of the City Council. The Mayor shall appoint a chair for each committee and may at his or her discretion appoint co-chairs for the committees that consist of at least five members. The Mayor may appoint additional members to committees designated as three-member committees in the Rules but shall not appoint fewer than five members to committees designated in the Rules as five member committees. At all meetings of City Council committees a majority of the members of the committee shall constitute a quorum for the transaction of the meeting. The clerk or his/her designee shall staff each committee and where deemed appropriate, the chair may request additional staff help through the City Manager.; and be it further
ORDERED: That pursuant to Rule 35B this order shall be placed on the table without any further action until at least seven days have elapsed from the date of submission.
Councillor Davis exercised her Charter Right to stop discussion and to delay the matter to the next regular meeting of the City Council. At the next meeting (Sept 11, 2006), this was Charter Right #3. No action was taken and the matter died right there without ever having come to a vote.
The sad truth is that attendance by councillors at their own committee meetings is abysmal. Often it’s just the Chair and no one else. As if not showing up for work wasn’t bad enough, there have also been some significant resignations from Council committees.