My first thought was, maybe Jim could leave after the August budget meetings to save money? Certainly, Assistant City Manager Ron Gorland is well qualified to serve as interim City Manager during the search process, and William Alonso could guide us through the final part of the budget process.
In addition, I immediately wondered why the City was going to owe Jim $115,000 upon his separation from employment. As a result, I obtained a copy of his contract. The contract provides that Mr. Borgmann is entitled to accrued sick, vacation, holidays, etc. It also provides on Page 3 that he must provide at least 30 days notice of resignation. Finally, it provides that if the City terminates him, it must provide 120 days of pay in lieu of notice.
Obviously, this changes the analysis of what is in the City’s best interest. It clearly does not make ANY sense to terminate Mr. Borgmann when we are contractually bound to pay him anyway. Especially when we consider that we presently do not have a City Planner and we are aggressively working to finalize commercial zoning revisions while also expanding code enforcement throughout the city.
Some believe we can circumvent our contractual obligations with Mr. Borgmann by “accepting his resignation immediately” thereby saving the City about $100,000. That is some pretty big wishful thinking -- even I wish it were so. Cute and clever opinion and argument, but no basis under the law. Lawyers have this saying that was recently articulated by David Cole, a Georgetown University Law Professor, “When you're a law student, they tell you if say that if you can't argue the law, argue the facts. They also tell you if you can't argue the facts, argue the law. If you can't argue either, apparently, the solution is to go on a public relations offensive and make it a political issue... to say over and over again "it's lawful", and to think that the American people will somehow come to believe this if we say it often enough.”
We must not treat Mr. Borgmann’s employment as a political issue. His retention is a business decision for the City. We cannot ignore the basic legal principles that govern his employment contract, or for that matter, any other issue before the Council.
Upon his return from vacation, our Budget Director drafted a memo outlining the costs associated with Mr. Borgmann's seperation from the City. It establishes that the actual NET savings for terminating the City Manager on June 27, 2011 (and obviously that did not happen), would be $44,918 -- not $140,000 as was suggested by members of Council. While the memo is not exact, it appears that terminating Mr. Borgmann on August 8, 2011 would save the city less than $30,000. Indeed, my argument stands, it does not make sense for the City to terminate Mr. Borgmann's contract while searching for a new City Manager -- it saves the City very little money and it creates another void in our workforce, which is already very, very lean.