Letter to City: Dara MacDonald
Attached is the letter that was submitted to the Salida City Council on November 16, 2016. The City’s CIRSA assigned legal counsel, Cathy Greer, finally responded a little over a week ago by saying she had been instructed to say no more than that the City would not respond to the letter.
As the Mayor and City Council have decided not to honor my employment agreement, I am left with only litigation to force the Mayor and City Council to pay the monies owed to me through our mutually agreed upon contract. When parties fail to act in good faith litigation is the opportunity afforded in this country. However, litigation is a pursuit of the wealthy or vengeful and I am neither of those things. While I remain disappointed in the lack of integrity demonstrated by the Mayor and City Council, I have no plans to fight with the municipality.
I remain very proud of the good work that was accomplished for the community during my 11 year tenure with the city. Salida is an amazing place filled with many wonderful people and I have no doubt that democracy will continue to function and the political environment will eventually swing away from the darkness that has dominated the local elections and environment in recent years. Salida is a community of much light, love and resilience and I do believe Salida will overcome the vitriol of recent years and continue to thrive in the years ahead.
All the best,
**November 16, 2016 Via email to [email protected] and U.S. Mail Cathy Havener Greer, Esq. Wells, Anderson & Race LLC 1700 Broadway, Ste 1020 Denver, CO 80290-1001 Re: Former Employee Dara MacDonald
Dear Cathy: We represent Dara MacDonald, former City Administrator for the City of Salida, who was terminated without cause and wrongfully denied her contractual right to severance/liquidated damages on June 30, 2016. The circumstances surrounding Ms. MacDonald’s employment and subsequent termination give rise to a number of state and federal claims against the City of Salida including, but not limited to, retaliation for exercising Ms. MacDonald’s First Amendment rights in violation of 42 U.S.C. § 1983, breach of contract, and violation of Colorado’s Legal Off-Duty Conduct statute, C.R.S. § 24-34-402.5. In addition to the First Amendment claim mentioned above, Ms. MacDonald also has other legal claims, such as intentional interference with contract and intentional interference with prospective business advantage, against individuals including, but not limited to, Mayor Jim LiVecchi. As you may know, Ms. MacDonald began working for the City of Salida in June 2005, before being hired as the City Administrator in May 2012. Despite a history of tumultuous City Council elections, each year since her initial appointment Ms. MacDonald received contract extensions and salary increases. Indeed, in her 2015 performance review, the Mayor and City Council praised Ms. MacDonald as a “confident and calm leader throughout the negativity and noise created by disaffected citizens opposed to city government. Dara demonstrates great personal strength and courage as she continues to provide a positive environment for city staff in spite of nasty and cruel voices attempting to poison their workspaces.” Ms. MacDonald’s work situation deteriorated through no fault of her own after a particularly contentious election in November 2015, resulting in 4-3 split in City Council, with the majority having a strong anti-City Hall sentiment. Over the next few months, City Council effectively fired their auditor even though all recent audits had been clean. City Council also got rid of their City Attorney and hired a new firm with no local government experience. In addition, local citizens who had been spearheading the anti-City Hall campaign for several years were emboldened by the shift in power and began submitting many meritless complaints against Ms. MacDonald as the City Administrator. A majority of citizens, however, appreciated Ms. MacDonald’s leadership in advancing interests that benefitted Salida’s business community. Cathy Havener Greer November 16, 2016
Page 2 Indeed, in November 2016, Ms. MacDonald received The Best of Salida award for being the “Best public employee (city or county)” for the third year in a row. In May 2016, City Council approved a new Scope of Work for the Mayor, Mayor Pro-tem, City Attorney and City Administrator (Resolution 2016-52). Although not part of her job duties, Ms. MacDonald raised a number of questions about these changes that involved matters of public concern, including whether these changes were legal due to apparent conflicts between the Scopes of Work and the existing municipal code, and whether the changes would negatively impact City operations and the citizens of Salida. At no point did Ms. MacDonald ever state that she was unwilling or unable to perform the job duties as defined in her employment agreement and the Salida Municipal Code. Nor was Ms. MacDonald ever unwilling or unable to work with the City Attorney to alleviate her concerns. On the contrary, it was City Attorney Ben Kahn who specifically stated that he would not work with Ms. MacDonald on matters related to the Scope of Work project and would not present her comments to City Council. In reality, City Council never even gave Ms. MacDonald the opportunity to perform her job under the proposed Fifth Amendment to her employment agreement containing the revised Scope of Work. Instead, City Council abruptly terminated Ms. MacDonald’s employment at its June 7, 2016 Council meeting before her contract was amended. Significantly, while the resolution terminating her employment agreement refers to Ms. MacDonald’s willingness and ability to perform her duties as City Administrator, it does not state that she failed to do so and does not cite that as a reason for her termination. As you presumably know, under the employment agreement in effect at the time of Ms. MacDonald’s termination, she is entitled to the following in the event that her contract was terminated without cause prior to the end of the employment term: A sum equal to six (6) times the Employee’s monthly gross salary, plus all accrued and unused vacation time at the current rate of pay, plus a sum equal to six months of COBRA coverage comparable to the insurance benefits proved to Employee at the time of termination. Given that Ms. MacDonald’s annual salary was $102,105.97 at the time of her termination, the City of Salida owes Ms. MacDonald $51,052.99, plus the cost of six months of COBRA coverage in severance/liquidated damages as a result of its decision to improperly terminate her.1 Although Mayor LiVecchi had promised to present Ms. MacDonald’s demand to City Council for consideration, he instead denied her request outright in a letter dated June 30, 2016 for reasons that were factually false or illegal. Bizarrely, in this letter Mayor LiVecchi faults Ms. MacDonald for failing to provide the City with a “proposed form of release,” even though she was not required to do this under her Employment Agreement. In fact, I am unaware of any 1 Ms. MacDonald received all accrued and unpaid vacation in her final check. Cathy Havener Greer November 16, 2016
Page 3 employer that has ever required an employee to draft her own release as a condition of obtaining severance /liquidated damages. Mayor LiVecchi could not possibly argue that Ms. MacDonald was fired “for cause” under the Employment Agreement. Instead, in his letter, he claims that Ms. MacDonald was allegedly unwilling or unable to satisfactorily perform her job duties at the time of her termination. This conclusion is patently false for the reasons set forth above. Indeed, not only did Ms. MacDonald continue to perform her job duties after she was notified of her termination, but she was never given the opportunity to perform her job under the proposed Fifth Amendment to her Employment Agreement since she was fired before that Agreement was ever amended. From his letter, it is clear that Mayor LiVecchi cast his vote to terminate Ms. MacDonald based on what she said and the questions she raised about the legality of the City Council’s actions, as opposed to her actual job performance as City Administrator. Even more surprising, in his letter of June 30th, Mayor LiVecchi claims that Ms. MacDonald’s decision to apply for other positions caused him to doubt her willingness or ability to perform her job. As you know, in Colorado, it is illegal to terminate an employee for engaging in legal, off-duty conduct such as applying for other jobs. See C.R.S. § 24-34-402.5. Mayor LiVecchi’s claim that Ms. MacDonald stopped performing her professional duties satisfactorily once the City Council passed the Scope of Work Resolution and the City Administrator Resolution is also demonstrably false. For example: • As set forth above, Ms. MacDonald was never unable or unwilling to work with the City Attorney. Instead, it was Mr. Kahn who refused to work with her. Mr. Kahn specifically stated that he would not work with Ms. MacDonald on matters related to the Scope of Work project and would not present her comments to the City Council. He also directed that she not be involved with a number of open records requests because he believed that she was asserting employment-related claims against him and the City; • The Mayor provided the Finance Director with an Exit memorandum on May 27th, but Ms. Macdonald has no idea how she was allegedly unable or unwilling to execute his direction, and does not know what “audit obligations” the Mayor is referring to. The MD&A and supplemental schedules were not completed through no fault of Ms. MacDonald’s. At the time of her departure from the City, there was no clear direction from the City Council regarding inclusion of the NRCDC as a component unit of the City, which greatly influences the representation of the City’s financial position; • Mayor LiVecchi’s claim that Ms. MacDonald was unable or unwilling to resign as Board Director and Secretary of the NRCDC due to conflicts is highly misleading. Ms. MacDonald had been the Secretary for the Board since the NRCDC was formed in 2009 and was appointed to the original board of directors as well. At the time, she was the community development director for the City. In March of 2013, the bylaws were modified and the City Administrator was made an ex-officio member of the NRCDC Board. From then on, Ms. MacDonald became an ex-officio member of the Board by Cathy Havener Greer November 16, 2016
Page 4 virtue of her position as City Administrator and continued in her capacity as Board Secretary. • When Mayor LiVecchi demanded that Ms. MacDonald resign from the NRCDC Board, she explained in a June 11th email to the NRCDC Board and City Council that she would no longer work on any NRCDC items, but she did not want to violate the law by resigning from a position that was in the NRCDC bylaws since that would put her in conflict with the requirement of her job as City Administrator. Mayor LiVecchi made no effort to address Ms. MacDonald’s questions and concerns, instead putting a Resolution on the City Council Agenda to remove her from her position without explaining why Ms. MacDonald felt that she was legally unable to resign. Instead, the Resolution leaves one with the impression that Ms. MacDonald was refusing to do what the Mayor had requested just to be difficult, which is hardly the case; • Ms. MacDonald’s questions regarding the City’s intent to comply with the severance/liquidated damages provisions of her Employment Agreement did not distract her from her professional duties, and certainly never became her focus during her meetings with Mayor LiVecchi. Indeed, Ms. MacDonald only broached this topic on four occasions with the Mayor. Any other times, the subject came up in response to inquiries by Mayor LiVecchi. • Mayor LiVecchi faults Ms. MacDonald because she was unable to meet with him on her last day of employment due to a scheduled vacation day. As previously mentioned, an employer cannot take action against an employee for engaging in legal off-duty conduct, such as a job interview. Moreover, Ms. MacDonald offered to meet with Mayor LiVecchi on a number of other days, but he made no attempt to reschedule the meeting. Despite the strength of her legal claims, I believe it might be worthwhile to discuss this matter to see if a prompt, informal resolution can be reached. Should your client be interested in discussing this matter, please contact me within ten days of this letter. If I do not hear back from you within that time period, I will assume that your client has no such interest, and Ms. MacDonald will proceed accordingly.
Sincerely, SWEENEY & BECHTOLD, LLC Joan M. Bechtold cc: Dara MacDonald**