Charter Tips Balance Of Power Toward Town Administrator, Town Counsel Says

By: Diana T. Barth
Published: 07/02/10

Bourne’s charter in hand, Town Counsel Robert S. Troy stood before selectmen during a workshop session on Tuesday and helped the board and Town Administrator Thomas M. Guerino parse out where the selectmen’s authority ends and the administrator’s begins.

Mr. Troy started his discussion, however, with a view toward the future, saying that the session came at a good time: the town is ready to start its second charter review.

Bourne’s attorney, who worked for the town when it had full-time selectmen, helped write the first town charter and advised the committee who performed the first review of that document in 2005.

Mr. Troy told selectmen that the original charter commission called the position now filled by Mr. Guerino “town administrator,” not “town manager.” That was, he said, a purposeful act that the members of that committee thought diminished the role of that administrator.

“But,” Mr. Troy said Tuesday, “that was not true.”

Changing the title of the position, he said, did not diminish the power the charter gave to the holder of that position.

Looking at what he called the “theoretical” powers of the administrator, irrespective of who holds that title, Mr. Troy said he believes “the administrator has the upper hand” over the selectmen.

He called the powers “theoretical,” because having the power and exercising those powers are two different things. Just as some US presidents have made the office of president more powerful than others even though they all operated under the same Constitution, one administrator might be more powerful, or weaker, than his successor.

However, Mr. Troy said, one provision of Bourne’s charter tips the balance of power between administration and board slightly toward the administrator’s side.

He called the board’s attention to section 4-5 of the charter, which states that it takes four of the five selectmen to remove an administrator, not just a majority.

Mr. Troy said that in his experience, that means that while it might be easy to remove an administrator who did something egregious, such as punching a resident in the nose, it would be more difficult to muster enough votes for some lesser reason, such as a difference in philosophy.

If a power struggle were to occur, that provision gives the administrator a definite advantage.
Mr. Troy said he thought the soon-to-be appointed charter review commission should at least look at the issue.

That said, he went on to look at what needs to be done to keep the balance of power on an even keel.
While section 4-6 of the charter delineates the administrator’s duties, section 3-3 of the document makes it clear that selectmen are the goal and policy-setting agency of the town, Mr. Troy said.

The day-to-day administration of the town falls in the administrator’s lap; the direction the town should take is the selectmen’s bailiwick, Mr. Troy said.

A key area of tension, he said, revolves around the difference between what is day to day and what is policy.

The way the charter is written, Mr. Troy said, all “executive authority” lies with selectmen.

The charter lays out everything the administrator is required to do, from preparing a budget to supervising employees to negotiating contracts.

Even the latter, however, Mr. Troy said, is clearly done, following the language of the charter, “on behalf of the Board of Selectmen.”

Mr. Troy noted that an administrator is usually evaluated on how well selectmen’s goals are translated into reality.

John A. Ford Jr., chairman of the selectmen, presented a hypothetical question: If the board were to set a policy of no new hires, could the town administrator make an exception to that policy, or would he need to go back before the board?

Mr. Troy said that, in that case, the administrator should go to the board, say he understood the policy, but that he needed to hire someone.

If the administrator were to hire someone unilaterally, in contravention of the policy, the board would have a right to hold a hearing on the issue, if for no other reason than it would have shown a lack of respect for the board’s authority.

This conversation led Selectman Donald J. Pickard to point to Mr. Guerino’s decision earlier this year to grant a mid-year raise to Finance Director Linda A. Marzelli. He said he found that move ‘troubling,” since nothing in the budget included that raise and finances are tight.

He asked Mr. Troy if it were within the town administrator’s power to grant such a raise.

Mr. Troy answered by comparing the town administrator’s power to that of the chief executive officer of a private company. If an employee has gotten a job offer he or she is finding hard to refuse, and the CEO does not want to lose that employee, the executive might offer that employee a raise.

The town administrator has similar powers, he said, unless the selectmen had set a salary freeze, which Bourne selectmen had not.

Mr. Guerino said that Ms. Marzelli had been hired at a lower salary than most people holding a similar position receive, with the promise, one he said he believes was made a part of her contract, that the issue would be reviewed after she had been on the job for three years.

Mr. Guerino said that, in granting the raise, he had just been living up to a prior commitment.

In times of financial crisis, Mr. Troy said, a board needs to provide careful oversight. To the extent that a town administrator acts improperly, and the board is not setting policy, the board “owns the problem,” whether it has been caused by omission or through negligence.

Selectman Mary S. Meli said that what Tuesday’s session was teaching her was that the board needs to be more specific. Bourne selectmen asked for a hiring freeze; if they wanted compensation frozen as well, they needed to say so.

Mr. Ford then turned to the issue of contracts, saying that he has no objection to the town administrator signing on consultants, when needed. However, he said, some landfill contracts cost the town hundreds of thousands of dollars, he said, and last for multiple years.

He wondered where the line should be drawn between what the administrator can approve and what he should bring before selectmen.

Mr. Troy said that multi-year contracts should be in response to a goal set by selectmen, and the policy should be that they are reviewed by them.

Mr. Guerino said his plan has been to refer those contracts to a group that included both selectmen and members of the board of health.

Mr. Ford noted that contracts like the one made several years ago that introduced microbial action into the landfill should have come before selectmen and the board of health.

In actual fact, everyone knew about the project, but no one was asked to vote for it, Mr. Ford said. However, he said, “no one said ‘no’ either.”

He said he has advised Mr. Guerino that in most cases, it is in the administrator’s best interest to ask for an actual vote in advance of signing such contracts.

Mr. Pickard noted that the town would soon be entering into a contract with the consultant who will be designing the assessment center used to select a new fire chief. He asked about the selectmen’s role in that process.

Mr. Guerino said two bids came in prior to last Friday’s deadline.

Once open, if the bids are at least in the ballpark, they will be forwarded to a fire chief selection panel, who will make a choice.

Otherwise, new bids would be solicited.

As for how to handle long-term contracts, that issue is expected to come before the board on July 14, when selectmen will be starting this year’s goal-setting sessions.

Ms. Meli suggested that selectmen might also consider some policy-making sessions as well.

Mr. Guerino had commented that over the past 15 years or so, the present board excepted, selectmen had not focused on instituting good written policies.

That, he said, is clearly about to change.

The Bourne Town Charter, as last amended, is online under the board of selectman’s section of the town website, www.townofbourne.com.