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Wednesday, December 30, 2009
Big City Salary May Not Hold Up
By Dan McKay
Journal Staff Writer
The 2006 agreement to keep paying Ed Adams his $147,000 chief executive salary even if he moved into a lower-level job at City Hall probably won't stand up in court if challenged, according to a City Council legal analysis.
The Adams memo, signed during the Martin Chávez administration, might violate city administrative instructions, an employee classification ordinance and the state constitution's anti-donation clause, the legal opinion says.
The analysis was written by Bruce Thompson, a City Council policy analyst and former city attorney for Santa Fe, at the request of Councilor Brad Winter.
Overall, Thompson wrote, "there is no clear answer. It is, however, more likely that the salary provided for in that memorandum is not legally enforceable."
But Thompson said there's not much the council can do about Adams' salary. The City Charter prohibits the council from involvement in personnel matters handled by the executive branch.
He pointed out, however, that the administration could seek a declaratory judgment in court on whether the agreement is enforceable.
Mayor Richard Berry's administration has said it believes the Adams agreement is binding. Berry told the Journal this month that he isn't "thrilled" about having to continue paying Adams $147,000 a year, but that city attorneys believe it's an enforceable contract.
Berry spokesman Chris Ramirez said the administration will review the new legal analysis.
"Councilor Winter released this legal opinion from the City Council Attorney to the media prior to the Mayor's Office seeing it," Ramirez said in a written statement. "Now that the administration has a copy of the letter we will have the City Attorney review it to see what merits, if any, it holds."
City Attorney Bob White had completed an earlier analysis that said the Adams salary agreement "does contain the essential elements of an enforceable employment contract."
Winter said he may push for a nonbinding memorial expressing the council's opposition to the current salary.
"What's happening is not a good precedent," Winter said Tuesday.
A second top official under Chávez former employee-relations director Lawrence Torres had a similar deal allowing him to keep his higher executive salary for awhile even if he took a regular city job. Torres, however, is retiring this week, and Thompson's memo didn't address his situation.
Adams served as a top executive under Chávez for several years after rising through the ranks as an engineer and project manager.
When Berry took office, Adams moved back into the city's Department of Municipal Development, which was his right as a 20-year employee. The city's personnel regulations, however, don't give him the right to keep his higher salary.
That's where the 2006 memo comes in.
Bruce Perlman, Chávez's chief administrative officer at the time, signed a memorandum telling Adams his "rate of pay will be maintained" if he ever returned to a regular city job.
Perlman wrote that Adams deserved to keep his pay because of his outstanding work and because he had forgone other employment opportunities to serve as a top city executive.
In an interview Tuesday, Perlman said the salary memo was simply the result of negotiations with Adams to get him to take an executive job in the administration.
"There's nothing wrong with him negotiating," Perlman said. "If people have doubts about the enforceablilty of the agreement, then they need to get out of the newspaper and into court whether that's the council or the mayor."
Thompson's eight-page opinion outlines some potential problems with Perlman's action:
n It probably violates the city's Merit System Ordinance for employees, which says regular "classified" employees should be paid according to a plan based on their rank and classification. It's not clear that a CAO can "ignore the MSO by issuing an administrative instruction" on someone's salary.
n An administrative instruction that apparently gave Perlman the right to determine Adams' salary came from Perlman himself and may not be valid. In any case, it's not clear whether Perlman complied with it.
n The Adams' salary agreement could be considered a "professional services" contract that requires City Council approval.
n The Adams' salary agreement may violate the anti-donation clause of the state constitution, which prohibits the city government from making gifts. Adams' salary guarantee could violate that clause if it's intended to reward him for past work, and not compensation for future services.