Attorney-general sides with OV police chief on contract dispute

Further muddying the waters in volatile Ocean View, in a letter dated Oct. 16, 2008, the Delaware Attorney General’s Office issued an opinion addressed to state Rep. Gerald W. Hocker and Mayor Gordon Wood regarding the Ocean View charter. It specifically speaks to the question of whether the town charter permits the town’s chief of police, Ken McLaughlin, to report directly to the mayor.

This September, council members Roy Thomas, Perry Mitchell and Richard Nippes voted to change the chief’s existing contract, citing language in the town charter that now requires the town manager to oversee all administrative manners. The town manager position has existed only since early 2007, but McLaughlin has reported directly to the town’s mayor for years.

The opinion from the Attorney General states that Section 2.204 of the Ocean View charter provides that the mayor is both the ceremonial head of town government and “shall have such other powers and perform such other duties as may be required of him by the Council, if not inconsistent with this Charter,” and states that the chief of police is “under the direction and control” of the mayor.

The opinion notes that confusion may exist as to whether that section of the charter conflicts with Section 2.102, which gives the town manager the power and duty to “appoint and remove all subordinate officers and employees of the town in accordance with the rules and regulations of any merit system adopted by the Town.”

But, the AG’s office’s findings conclude that McLaughlin is a contractual employee, not a merit-system employee, and “according to § 28.1 of the Code of the Town of Ocean View, his terms of employment are not covered by the merit system, but by his contract.”

The opinion also states that Section 28.1 of the charter provides specifically that the personnel “policies herein apply to all positions in the service of the Town of Ocean View except those covered by a specific contract of employment. In those instances,” it says, “the contract shall take precedence.”

How or if the AG’s opinion will change the existing situation in the town still remains to be seen. McLaughlin — who has been complying with the new order in the town hierarchy pending receipt of the opinion — said this week that this reading of the pertinent documents is what he has believed to be true all along. He said it was consistent with two other legal opinions they had been given legal counsel to the town and the state, but is contrary to what Wendy Voss — an outside attorney hired by the town — has advised council members.

“I am confident that I always have been — that I have a valid, binding contract with the town,” said McLaughlin. “I have always worked very hard to meet my obligations to the town and would hope that the town would honor their obligations and commitments to me.”

Thomas emphasized this week that the opinion the town received from Voss contradicts the Attorney General’s opinion, and that council as a whole did not get a chance to pose questions to the Attorney General’s Office.

Voss was asked different questions in her work on the issue — mainly whether the town is in breach of contract if they require the chief to report to the town manager; whether the mayor has the power to make independent policy decisions with respect to the duties and activities of the police department; and whether, if the contract is interpreted to mean the chief is to report to the mayor and only the mayor, such a contract term is void or voidable.

Voss’ conclusion put less emphasis on the fact that the chief is a contractual employee and more on the fact that the town manager is seen as the chief administrator of the town and that, because the chief of police is viewed as a department head and his position administrative in nature, he is “responsible, like all employees, to the Town Manager and through the Town Manager to the council as a whole.”

Her opinion also stated that “those contract provisions which grant authority to the Chief to hire and fire employees and which provide that he Mayor will direct and control the work of the Chief likely would be found by a Court to be inconsistent with the charter and thus void.”

However, Voss also stated that, in the charter, there is language that states the town manager shall “appoint all subordinate officer and employees of the Town.” But, she also stated, “I am aware of no information which might indicate that such was the case with the Chief of Police. Further the contract language purports to grants the Chief authority to hire and fire police department employees. These considerations cut in favor of a finding that the Chief was not intended to be subordinate to the Town Manager.”

McLaughlin said he hopes the opinion from the Attorney General’s Office, emphasizing his stature as a contractual employee, will put the matter to rest. But he said it’s up to the five members of council what they will do with the opinion.

McLaughlin’s change in reporting status was effective immediately, so, since the 3-2 vote of the council in September, he has reported to Town Manager Conway Gregory. In making that change, McLaughlin’s argument is that they violated the terms of his contract.

According to Thomas, the council has made its decision and the Attorney General’s opinion fails to answer some other questions they had regarding the matter. “We’ve already acted,” he said this week.

“The town council [as a whole] didn’t ask for that opinion. We were not asked to participate. Unilateral action of this nature often results in individuals asking a question in a manner as to get the response that supports their decision. Sadly, I believe that this is the case here,” he added.

“We can’t have outside people telling us how to run our town, and that’s what I feel like we are getting here,” he concluded.

The rest of the council appeared split on what the opinion received from the Attorney General means for the future.

Mitchell, who also voted to change the terms of the contract, had thoughts similar to those of Thomas.

“The ball’s in the chief’ court,” said Mitchell. “The council voted 3-2. [The Attorney General’s] opinion is only an opinion,” said Mitchell. “It didn’t seem powerful — it was very short with no case law. Nothing’s changed. We are not quaking in our boots. We are going to stay the course.”

Wichmann, who opposed the decision in September, questioned the expense already spent on an outside attorney and said he thinks things should go back to how they were. The town has been billed more than $12,000 in attorney’s fees for the outside counsel.

“We should go back and honor his contract,” said Wichmann. “I don’t see spending more money — it’s like a game of ping-pong. [In the end], everybody loses.”

Nippes declined to comment on the attorney general’s opinion until after the entire council has had a chance to meet and discuss the development — presumably at the next council meeting, on Nov. 18.

Wood — himself an attorney — said his major question is why some members of council pursued changing the terms of the contract in the first place and why they are now pursuing defending that position.

And, although Thomas has said the council voted unanimously back in the spring to get the opinions of the outside attorney, at town expense, Wood disagreed.

“‘Why?’ is the real question,” said Wood. “Why are my colleagues doing this? Why are they willing to spend this money without council approval? There is an answer, and it can’t be because they think the charter requires it.”

Whatever the future holds, the chief is ready for Ocean View to return to business as usual.

“One way or another, it’s time to get back to the business of serving our citizens,” concluded McLaughlin this week. “This has all just been a major distraction.”