July 12, 2017 – Since the Town Council voted 3-1 to appoint Gayle Corrigan acting town manager on June 22, questions have been raised as to the legality of the appointment citing a clause in the town charter that “an officer of the Town” should be designated to serve as town manager in the event of a vacancy.
The clause, F under Section C-67, powers and duties of the Town Council, is as follows:
“In the event that the Town Manager is at any time absent or unable to perform the duties of his or her office for a period in excess of 35 consecutive days or in the event that the Town Manager resigns or is removed from office or if for any other reason a vacancy exists, to designate an officer of the Town, other than a Town Council member, to serve as Town Manager with all the powers and duties of the Town Manager until his or her absence or disability terminates or until a successor to the Town Manager has assumed the duties of the office. (http://www.ecode360.com/9709909)”
Corrigan, at the time of the appointment, was a principal in Providence Analytics, the firm hired by the town to conduct financial reviews of the school department and the town. Under the contract with the Town Council, Providence Analytics was to be paid up to $15,000 to complete the financial reviews. Corrigan was not, then, an employee or any other kind of officer for the town when she was chosen to take over for Tom Coyle, who “separated” from his position as town manager on June 22.
However, in a recent interview, Town Solicitor David D’Agostino put forth two arguments for why the Town Council acted within their powers.
His first argument is that the Town Council as the town’s legislative body has the right to appoint who they see fit.
“I think that is squarely within the purview of the council,” he said. “The town council is the legislative body, the governing body of the town. Their power is generally plenary [i.e. full]. They rule the town. They can make any decision they want to make so long as it is not against the terms of the charter.”
D’Agostino’s second argument centered on the word “officer.”
Corrigan may not have been “an officer of the town,” but who exactly is an officer of the town, he asked.
At a minimum, D’Agostino said, town councilors would seem to be town officers, based on the clause “an officer of the town, other than a Town Council member.”
Other possible officers are listed in Chapter 159 of the Municipal Code, which lists only two positions, the sealer of weights and measures and the town solicitor. East Greenwich does not have a sealer of weights and measures; D’Agostino, the town solicitor, has been on the job since May.
Four years ago, the Town Council appointed then Police Chief Tom Coyle to serve as interim town manager after then-Town Manager Bill Sequino resigned. Coyle was subsequently named town manager after a search. D’Agostino – who was not serving the town four years ago – said, “Do you make a department head the acting town manager? The issue is, whoever wrote this meant something. You could have used ‘department head.’ They could have used other language. What that leads me to conclude is, council members are officers because they are elected officials.”
Based on that, D’Agostino said, “I would argue that the police chief, or the public works director, are not officers. They are employees.”
“I did look at questions of who an officer of the town is. It all leads back to a conundrum because who is the officer? It says officer. It does not say department head. In Rhode Island … there are no cases which have defined specifically ‘officer.’”
EG resident and labor lawyer (she represents the EG fire fighters) Elizabeth Wiens had a different take on the “officer” question.
“I would say ‘officer of the town’ has to mean something otherwise, why would it be in there?” she said in an interview. “It looks like [the Town Council is] trying to make the facts fit the law.”
Wiens said Corrigan’s appointment violated the charter in two other ways – one, she is not a resident of the town (neither was previous Town Manager Tom Coyle), and two – as per section C-19 of the municipal code – the town manager “cannot make a contract with the town (with the exception of his or her own contract of employment).” Corrigan does not yet have an employment contract with the town. Rather, she is still working under the contract the Town Council signed with Providence Analytics (where Corrigan is a principal). That contract states Providence Analytics is to be paid a maximum of $15,000 for consulting on school and town finances. There has been no official accounting of how much of that money has yet been spent.
What would D’Agostino have told this council if they had sought to appoint a department head to serve as acting town manager? He emphasized the council’s legislative power to act as it pleases.
“My job is to say, here is what the charter says. Here’s what you want to do. I probably would have said, ‘Yeah, you can do it because you’re the governing body of the town.’”
Here is a link to the Town Charter and Municipal Code: http://www.ecode360.com/13130356.
– Elizabeth F. McNamara