By Tami Tanoue, Executive Director

Those who serve city councils and boards of trustees accept their positions knowing that a public parting of the ways with a “direct report” may be inevitable. “Direct report” positions typically include the city manager or town administrator, the city or town attorney, and potentially others. Sometimes it’s the employee who decides it’s time to move on; other times, the governing body makes that decision. But when it’s the governing body initiating a separation, it’s important to make sure that the separation is done not just correctly, but humanely.

A typical employee facing the prospect of being fired would properly expect that such an action would be done discreetly and behind closed doors; that’s a workplace norm. But governing bodies must do their business in a public setting, as required by open meetings laws and public expectations for transparency. Thus, we are often treated to the sad spectacle of a governing body’s direct report being let go in public. In one recent case, the governing body voted to abolish the police chief’s job, and ordered him to turn over his uniform, vehicle, and other items immediately. Taking the directive quite literally, the chief removed his uniform when the meeting ended and began walking the 7 miles to his home in a snowstorm, dressed in his underwear.

This is quite a graphic example of the clash between legal requirements and workplace norms! But what can be done to avoid such a scenario? Obviously, compliance with all applicable laws must come first. But a governing body considering a termination of a direct report also needs to act humanely and respectfully. Yes, your direct reports take their positions understanding transparency requirements and knowing that public job loss is a possibility. But they are still humans deserving of dignity. Here are some suggestions:

• Plan ahead for a job separation situation. Look for ways to reduce the potential for public confrontations and embarrassment while still complying with applicable transparency laws.  Involve your municipal attorney early on to assist in planning the logistics, and for advice on your legal rights and obligations when a job separation is being considered. .
• A personnel matter is an appropriate subject for an executive session under the Colorado open meeting law. While an employee who is the subject of such an executive session has the right to insist that the discussion take place in public, most employees would not exercise such a right if they know that, at some point in the executive session, the employee will be asked to participate. A frank discussion in an executive session about personnel-related concerns might be exactly what is needed. If a governing body action is warranted following the end of the executive session, then one appropriate action might be to place the employee on administrative leave (in most cases paid administrative leave) pending further action.
• Your municipal attorney can also serve as an intermediary in discussions for the potential separation of the employee. The attorney can be the communications contact for the discussion of a negotiated exit. Such an exit could avoid the need for a public vote by the governing body, or at least, provide an opportunity for a public vote in a setting that doesn’t require the employee to be present to hear the motion severing the employment relationship. Also, if the exit is mutually negotiated, the context of the public vote would be a proposed mutual separation agreement rather than a unilateral termination.
• If the position is one that’s subject to an employment agreement, the issues around a potential separation need to have been addressed appropriately before the start of the employment relationship, not at the end! Make sure the provisions concerning separation are workable and don’t set up unnecessary barriers to the discreet handling of a separation down the road. Of course, any applicable statutory, home rule, or other pertinent legal provisions must be reflected in the separation provisions of the employment agreement. But too often, an employment agreement, written during the optimistically hopeful period before someone takes a position, will contain unnecessarily complicated, unreasonable, or impractical steps that the governing body must follow, to the detriment of all. Make sure you review those steps to make sure they’re workable before committing to them.
• Understand that severance payments are a norm, especially for city/town managers and administrators. A severance payment can be viewed as the “oil” that helps ensure a smooth ending and transition in such positions, so you should have fair severance provisions built into the employment agreement, and be prepared to follow them. Again, make sure before the employment relationship starts that the severance provisions are workable. The severance provisions should clearly address the key issues—for example, the circumstances under which a severance payment will or will not be paid and how key benefits will be handled—without being unduly detailed. At CIRSA, we’ve seen too many examples of severance language imposing problematic conditions; it’s a bit late in the day to start negotiating more realistic language when the working relationship has gone south!
• Contact CIRSA! If it appears that “the handwriting is on the wall” and there’s a majority of governing body members who feel that way, we may be able to assist. We will work with the Mayor or other appropriate elected representative, the city/town attorney, and others as appropriate, to make sure the governing body follows the appropriate route between legal compliance and dignified treatment. We can assign an experienced outside attorney to serve as a resource, and to ensure that the matter unfolds and concludes as it should. You are always welcome to contact Sam Light, CIRSA’s General Counsel, should you need or want our assistance.

Planning in advance for what we all hope is the remote possibility of a working relationship ending badly is in everyone’s best interest.  If a parting of the ways is well planned and carried out humanely, it is far less likely to result in disputes, claims, diminished morale, or other lingering effects. We can do better than to strip a once-valued employee of their duties, their dignity, and their uniform in public!