Ask and ye shall receive By Pat Grubb

Ask and ye shall receive

By Pat Grubb

Point Roberts fire chief Chris Carleton asked fire commissioners for a new contract and he received. And boy, did he ever receive.

Speaking to the commissioners and a fair-sized audience at a special meeting on Wednesday, April 15, Carleton said that he was willing to commit his future to Point Roberts, but only if Point Roberts was willing to commit to him.

“The reason why I’m asking for these changes is that I want to commit more time to this community as fire chief, and I’d like to be with this organization for the time period that I see myself a career firefighter. And that is for at least another 15 years,” he explained. Talking about the qualities he brings to the organization, Carleton said those included “professionalism, integrity and morals.”

Carleton had been working under a contract that went into effect on September 1, 2012 and was due to expire December 31, 2015. The contract would have automatically renewed for “additional three (3) year terms” unless the district decided not to renew it by providing written notice to Carleton 180 days before the expiration date. That contract allowed the district to fire Carleton without notice and without cause by paying one year’s salary plus all accrued vacation pay.

The new contract changes all of that. After the first five-year term is up, the contract automatically renews every five years until 2030. Should future commissioners decide to fire Carleton without cause, Point Roberts taxpayers will be on the hook for big-time severance pay. Depending on whether he is let go in the first, second or final five-year term, the district is obligated to pay him lump sum severance payments of $150,000, $175,000 or $200,000, respectively. In the first term alone, Carleton would be entitled to three years of salary should he be fired.

There are other changes. The original contract contained six clauses under which the fire chief could be terminated for cause; the new contract holds only five. What missing in the new contract was the first clause in the old:

“10.1 Incompetency, inefficiency or inattention to or dereliction of duty.” These are no longer contractual cause for dismissal.

When it comes to annual evaluations, the district has agreed that in the absence of “any objective evidence and documented concerns, the Parties agree that Employee’s job performance will be deemed acceptable.” Previously, the clause stated, “…in the absence of any identifiable concerns.” Presumably, “objective evidence” requires a higher degree of substantiation than “identifiable concerns.”

There’s more. Employers in Washington state are not required to offer paid vacation to employees; according to former state senator and accountant Georgia Gardner, it is rare that a part-time employee receives such benefits, especially those who are paid a salary for specified periods, as is Carleton. The fire chief will be paid $4,166.66 per month (or $50,000 annually) for 100 hours’ work per month (up from 80 hours previously). Carleton received 40 hours vacation allowance on signing the first contract in 2012 and has been accruing vacation at the rate of three and one/third hours a month (or 40 hours annually). Both the old and new contract allow vacation time to accrue from year to year; however, the maximum accrual “in a contract term is 200 hours.”

Whether Carleton is fired or quits, he will be paid for the accrued vacation time. After five years without vacation, he will have 200 hours banked. Carleton said his accrued vacation time would not roll over into the second or third contract term but nowhere is this specified in the contract. As the contract is for three five-year terms, he could conceivably accrue 600 hours.

At his current rate of pay, the vacation payout would cost the district $24,999 on top of any possible severance payment. Whether he would or does accrue that much vacation time can’t be known. However, Carleton is also currently a full-time paramedic working for the Ferndale fire department, which offers paid vacations.

Chief Carleton was above board in explaining the rationale behind his request for such large severance payments. “Without that built into the contract, fire chiefs won’t do the job because they’re never confident that the next day they come into work, they still have a job. Especially if they have a dispute with a commissioner panel, commissioners all over the country will just get a whim or knee-jerk reaction and decide to terminate the chief without cause. That’s why [the contract] has protection for me, and penalties for the district if I’m terminated without cause.”

Certainly Carleton didn’t have to look far for evidence that his fear of unjust termination was justified. No more than 10 feet separated him from commissioners Bill Meursing and Stan Riffle, who unceremoniously dumped former long-time fire chief Nick Kiniski at a special meeting in August 2012. When asked what the grounds for Kiniski’s termination were, Riffle stated at the time that there “were no grounds.”

Kiniski’s relationship with the board had initially been harmonious but had deteriorated as a result of what he considered undue interference with how he managed the department. At a June 2012 commission meeting, Kiniski expressed frustration with the commissioners’ meddling. “This comes down to, I’m the chief here,” he said. “You guys make it very tough for me. I’m getting directives from commissioners.” Fellow commissioner at that time, David Gellatly, stepped up for Kiniski and told Meursing and Riffle that it needed to be clear that department operations were the chief’s job, not the commissioners.’ “No one commissioner can direct the chief to do anything,” he said. “If it’s happening, it shouldn’t happen. We don’t have unilateral authority.” Gellatly was referencing the fact that in Washington state, individual commissioners have no powers whatsoever; only boards as a whole have any power.

Kiniski’s dismissal was met with a good deal of community opposition and unmet demands that the commissioners provide justification for their actions. It also meant that $50,000 spent by the county in 2011 to pay for Kiniski’s training as a paramedic was essentially wasted; Kiniski now works in another county as a full-time paramedic on Orcas Island.

Commissioner Jeff Wilmot was the only commissioner to express doubt about the proposed contract. “This is one hell of a contract. I’ve never heard of anything that comes close to it. Your presentation was very comprehensive – it’s a lot to absorb without spending some time on it and understanding what it is going to cost the district. And when our bosses out there in the audience hear this, perhaps they are going to want to participate in this. Let me ask you this – how negotiable is this?” Carleton responded by saying, “Well, I think it’s very negotiable.”

If Carleton thought commissioners were going to get down to brass tacks, he could brush that worry away. Neither Meursing nor Riffle expressed any concerns about the length or terms of the contract. Riffle said, “I read through the contract twice and I feel the severance amounts are very fair.” Meursing wanted to go further and urged fellow commissioners to increase Carleton’s pay. “I was going to propose a salary of $55,000; otherwise, it would mean [Carleton] would work for eight years at $50,000 without a raise.”

Commissioners gave no reason why they needed to call a special meeting to discuss the contract just one week after Carleton raised the issue at the April regular meeting. Carleton’s original contract term went to December 31, 2015 and would automatically renew for another three years.

Later Wilmot asked whether the “finished” contract had been vetted by district attorney Brian Snure. Meursing replied that he had called twice and left messages with him. “So he said there were no legal issues?” Wilmot queried further, to which Meursing replied, “If there had been legal issues, he would have called me back.”

There was no further discussion regarding the advisability of a complete legal review of the contract. Yet the contract itself states under General Provisions (16.6): “At all times, the District has been represented by its attorney.” The exchange between Wilmot and Meursing makes it unclear whether a legal review actually took place.

There was also no discussion about the ability of the district to pay out a possible severance without endangering the existence of the fire district. The district’s 2015 tax revenue will be $537,320.30; a payout in the first five years would total nearly 30 percent of the district’s annual budget and would have to be made at the next regular payroll date or in a period no longer than six months after the chief’s dismissal.

Meursing and Riffle have a track record of approving contracts that have not been fully reviewed. Both commissioners approved and signed Carleton’s first contract in 2012 but had to backtrack after the All Point Bulletin pointed out that its terms meant Carleton was eligible for three month’s vacation in his first year. That contract gave the chief 120 vacation hours at the beginning of his term and accrued 10 hours per month for a total of 240 hours at the end of his first term. The contract was amended to an initial 40 hours with a monthly accrual rate of 3.5 hours for a total allowable banked vacation time of 120 hours.

When the errors in the 2012 contract were pointed out, Carleton described the contract as their “first shot of it.” The contract proposed for 2015 was discussed at the commissioners’ regular meeting on Wednesday, April 8. At that time, Carleton had said he would email a “draft” contract for commissioners to review.

All three commissioners were fulsome in their praise of Carleton’s performance who, by most community accounts, has performed admirably since taking over as chief. Riffle said, “I just think this community should realize how lucky we are to have chief Carleton. I have no problem with offering him three five-year terms.” Meursing followed up by saying, “I can’t improve on [Riffle’s] speech … I don’t see why people when they have a good thing why they wouldn’t take it.”

Commissioner Wilmot took pains to describe his questioning of the contract terms as separate from his appraisal of Carleton’s performance, who he said “had remade this organization in a very short time.” He added that he resented “being painted with a brush simply because he had questions about something that no one else in the room had even read yet. That insults me. It’s not the way we should behave as an organization or a community.” Wilmot concluded by stating that he believed the contract was “a heavily flawed document but, for the sake of unanimity, [fellow commissioners] have my Yes vote.”

After the vote was taken and the contract approved, Meursing called for a motion to adjourn the meeting when he was interrupted by Riffle. Turning to the audience, Riffle said, “You tonight have witnessed, thanks to Bill Meursing, essentially an executive session by the board. Bill did not want to go behind closed doors and do this and normally that’s how it’s done according to RCWs. We would go in and hammer things out. Bill wanted it to be out and open with the public.”

In fact, the opposite is true. RCW 42.30.110 is the section of the Washington state Open Public Meetings Act (OPMA) that deals with executive session. Sub-section 110(g) states, “…discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be take in a meeting open to the public.”

Following Riffle’s encomium, Meursing then closed the meeting after refusing to take questions from the All Point Bulletin.

The Washington state legislature enacted the 2014 Open Government Trainings Act that came into effect on July 1, 2014. According to the act, incumbent members of a governing agency must have received open public meetings and records training in 2014, while newly elected officials must take it within 90 days of their taking office and every four years thereafter. A request of the fire district to ascertain if the commissioners had fulfilled this requirement was not answered by press time.

The OPMA is exacting in its requirements for open public meetings. With the exception of rigidly specified exclusions for executive sessions, all meetings where a quorum of officials is present and action is taken must be held in public. Action includes discussion or consideration of agency business; therefore, two members of a three member board may not email or meet in person to discuss matters concerning the fire district.

A 2012 open public records request made by the All Point Bulletin to the fire district revealed numerous instances of fire commissioners discussing fire district business through email. Commissioners Meursing and Riffle are frequently seen together and while it is not known if they have or do discuss fire district business, at the minimum such meetings are open to misinterpretation.

The All Point Bulletin has submitted an open public records request to the fire district asking for copies of commissioner emails for the period of March 15 to April 20, 2015 and will report on our findings in a future issue.