Supervisors sign off on McCarthy retirement agreement, finally
By Richard Gaw
By Richard L. Gaw, Staff Writer
On July 29 at the Kennett Township Building, the township's Board of Supervisors played a game of musical chairs.
At precisely 7:30 p.m., the three-member board – Robert Hammaker, Richard Leff and Chairman Scudder Stevens, joined by Township Manager Lisa Moore and Solicitor David Sander – sat down in the township meeting room for a gathering it had scheduled one day in advance. Stevens called the meeting to order, and at precisely 7:32 p.m., they all got up from their chairs and vanished from the room.
At 7:55 p.m., before a puzzled audience of township residents, all five returned from a 23-minute executive session, sat back down in their chairs, and for the next 30 minutes, answered more than two dozen questions about the retirement agreement it brokered with former police chief Albert J. McCarthy on May 7 -- its contents, the accusations against it, and the reason it had not yet been publicly approved.
Finally, the board voted to approve the details of the retirement agreement, as well as ratified and approved all payments made to McCarthy, who began receiving his extended salary payments soon after the contract was originally signed, and who will continue to be paid until Oct. 1.
The up-and-down act seemed wildly apropos, given that to some who follow this township's political turns, the more than two months the supervisors had delayed a public vote on the retirement agreement has resembled a shell game.
As explained by Stevens and Sander, the reason for the delay in publicly agreeing to the terms of McCarthy's contract was due to the pending litigation of a lawsuit against the township and its three supervisors that was filed on July 22 in Chester County Court of Common Pleas. The suit, filed by township resident Michael Hammon -- who was the victim of a car crash involving McCarthy on April 13 -- claims that any or all of the four parties named are in violation of the Sunshine Act, for what the suit claims involved a "secret retirement agreement" the township fostered with McCarthy.
The lawsuit points out that at no time between the meeting dates of April 15 through July 15 did Stevens, Leff and Hammaker publicly vote on or approve any retirement agreement with McCarthy, nor invite or receive comment from the public on the retirement agreement it brokered with McCarthy. Further, the lawsuit claims that the agreement the township negotiated with McCarthy was done in secret, specifically targeting Section 2.B.11 of the retirement agreement, which states:
"Except as specifically provided in this statement, McCarthy and the Township agree that, as a material part of the consideration for this Agreement, they will not disclose or discuss, other than with legal counsel, the existence of this Agreement or any of its terms except to the extent properly subpoenaed under applicable court rules or otherwise compelled by law or court of competent jurisdiction," the section states. "The parties acknowledge the possibility that the Township may be compelled to disclose this Agreement pursuant to a lawful request made by the Pennsylvania Open Records Law."
Sander called the contract an "extremely common agreement."
"There's no secrecy involved," he said. "If you are familiar with severance agreements, where a municipal official such as a police chief or a township manager who has put in years of service, it is common to enter into a retirement agreement that also contains releases from the party retiring that protects both the township and the employee who is retiring.
"If you read [the agreement] carefully, there's nothing to be hidden here," Sander added. "Its a standard, non-disclosure clause between both parties, to protect the parties from unnecessary dissemination of the agreement's terms."
McCarthy's retirement agreement, which is now available on the township's website, spell out the benefits he will continue to receive from the township, which include McCarthy being paid his "normal" salary through Oct. 1, 2015, which will be estimated at $45,000 in payment; payment for any unused sick or vacation leave; and continuation of McCarthy's healthcare coverage through March 31, 2016. Moore said that McCarthy has already begun to be paid under the agreement, even though the agreement had not been approved publicly.
Under the agreement, which was signed on May 6 by McCarthy, McCarthy agreed to direct any employment references to Moore, who will provide a reference limited to McCarthy's dates of employment, position held and salary at the time of separation, and confirmation that McCarthy voluntarily retired.
Additional caveats of the agreement include:
* McCarthy will make himself available to help in the transition of the police department, as well as assist in the completion of any additional pending investigations;
* The township will continue to defend and indemnify McCarthy about any legal claims against him which occurred while he was employed by the township;
* McCarthy waives any right to monetary relief from the township in any legal action he may be involved with;
* McCarthy waives any rights to regain employment by the township; and
* The township and its elected and appointed officials will agree not to disparage McCarthy, and that McCarthy agrees not to disparage the township or its elected or appointed officials.
The meeting to agree on the specifics of McCarthy's retirement was originally scheduled for Aug. 5. The date for the sign-off was then changed to be on the agenda for the July 22 meeting, but on July 28, a notice was published in a local daily newspaper announcing that the meeting would be held the next day. Sander said that the 24-hour notice is provided for by the Sunshine Act.
"Any time the supervisors wish to hold a special meeting, they may do so as long as it provides for 24-hour notice," he said.
"The optics on this are horrendous," said one resident, referring to the McCarthy retirement agreement, the litigation now on the township's books, and the subsequent explanations by the board and Sander. "I hear the words coming out of your solicitor's mouth that it's all on the up and up. It just doesn't look right. If it's going to be on the website and it's only going to be on the website if it's already been in the newspaper, how come it couldn't have been done before that? What are we supposed to think as the residents as to what you guys are doing behind closed doors?"
Stevens advised the resident to look at the agreement on line. Stevens said that the terms of the agreement with McCarthy will certainly be open for discussion at later meetings, but like his fellow supervisors, Moore and Sander, he avoided discussing the specifics of the litigation, "on the advice of counsel."
"In litigation, its inappropriate to share the details of the agreement," Stevens said. "We're not hiding it, but we can't discuss it. The reason we are constrained is on the advice of counsel, because we are in the middle of litigation.
The campaigns of both Stevens and Leff to become a township supervisors were laser focused on increasing the transparency of the way the township should conduct its business. The accusations of the lawsuit that claim the McCarthy agreement was done behind closed doors now give rise to speculation that public opinion toward whether or not it believes that the township is governing with open doors is now weakened.
"Until this [litigation] is finished and we find out what the end result, then you can make up your mind as to whether there was any kind of inappropriate behavior going on," Stevens said in response. "I'm well satisfied that when this is finished and everything is on the table and in the public eye that it will not create a transparency problem."
Stevens then provided evidence that the township has indeed, become more transparent since he was elected in 2012.
"For anyone who has been to other muncipalities and seen how they hold meetings, maybe you get five minutes at the beginning to make a statement, and then you sit and watch," Stevens said. "This meeting is all about the residents of the township, and only residents of the township get to ask questions. This meeting, as have all the meetings of the board since three years ago, has been open to public discussion.
"I really think that it's all out there, and you don't just get one shot at the beginning of the meeting," he added. "That's our job. We feel that very strongly, and that's why were here, trying to be available, to guide you to the answer that you want. We're trying to do everything we can to be open to the community."
The lawsuit asks the Chester County Court to render the agreement as "unlawfully-transacted agency business"; to determine that the township and its supervisors have violated the Sunshine Act; to invalidate the retirement agreement the township negotiated with McCarthy; and award Hammon the cost of his legal fees and costs of litigation.
Stevens assured those in the audience that the lawsuit the township is currently engaged in will not affect the business of the township.
"We don't know whether the litigation could go to trial, or appealed or settled," he said. "The board has no knowledge or certainty how much focus and attention [the lawsuit] will take away from regular township business...but it will not harm the expectation that the township has for what we're going to do."
To contact Staff Writer Richard L. Gaw, e-mail firstname.lastname@example.org.