Last updated: April 08. 2014 11:22PM - 7003 Views
By Amanda Moss amoss@civitasmedia.com

Marchell David
Marchell David
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HAMLET — Hamlet City Manager Marchell David’s contract was voided Tuesday in a 3-2 vote by the Hamlet City Council.

Newly hired city attorney T.C. Morphis Jr., from The Brough Law Firm in Chapel Hill was tasked during the March meeting to look into the validity of the city manager’s employment contract that the council — two members of which are no longer in office — offered David in October 2013. Morphis came back on Tuesday to present his findings on contract and whether or not it was enforceable.

The council went into closed session at 7:23 p.m. to discuss matters within the attorney-client privilege and did not go back into open session until 8:41 p.m. The room full of concerned residents of Hamlet continued to wait out the closed session to hear what the council had decided regarding David’s contract.

David was not present at the meeting. She put in a request for family leave and the council voted to have City Clerk Tammy Kirkley to stand in her place until David returns from her leave.

The terms of David’s contract included, upon involuntary separation from employment, a buyout that could have cost taxpayers one year of David’s salary. In addition, taxpayers would have paid her the value of her accrued leave and the value of 12 months’ medical insurance premiums at the city employee rate. David also garnered a 5 percent raise, though that was not mentioned in the terms of the agreement as provided by Kirkley to The Daily Journal last fall. The Daily Journal has never received a copy of the contract despite state law indicating the contract is a public document.

“The attorney said that a strong case can be made that it is an invalid and unenforceable contract,” said Council member Eddie Martin. “The main reason is there’s no definite term, and in the absence of a definite term, either party can terminate at any time.”

Morphis looked at the contract and determined that while it was a very typical thing for city managers to have contracts, there were some terms in the contract that he had never encountered before. Usually a contract for a city manager will include a term or a specified period of years in which the contract is valid, this was not included in David’s contract.

Morphis offered three arguments that would support the voiding of the contract. One, the terms of the contract were unreasonable, two, the contract is against public policy and three, there was no preaudit certificate which is required when the council enters into a contract.

It was based on this reasoning that council members Jesse McQueen, Eddie Martin and Johnathan Buie voted to void the contract with David. Council members Pat Preslar and Tony Clewis cast the dissenting votes. The voided contract in no way affected David’s employment with the city, and she still remains city manager.

Morphis did note that there wasn’t much case law to back either side of the argument should the city manager seek action against the council if she was terminated. Morphis did say that he had never seen a contract with terms that were included in David’s and that it is an unusual case. Preslar made a comment that this would be something the city would have to fight against without the backing of previous case law since it is such a unique case.

Martin, however, did not see much risk in voiding the contract. He had taken up issue with how it was formed and also that the contract lacked Steve Futrell’s, the previous city attorney, signature. The lack of his signature does not affect the validity of the contract, but it did raise a red flag for Martin.

Preslar also made a suggestion that McQueen refrain from voting due to McQueen’s past litigation with the city. He viewed McQueen’s voting as an ethical and moral issue and that McQueen may have a conflict of interest. Morphis said that if McQueen did not vote it would count as an affirmative vote. Morphis said there were only two reasons a member could refrain from voting under law, either for personal financial interest or official conduct, and McQueen did not fall into either of those categories.

Preslar, who voted to offer the contract to David in October, was against voiding the contract with the city manager and said that the contract was a statement of her hard work for Hamlet.

“I did award a contract because of her performance and what she’s done for this town,” Preslar said. “It’s a shame that she’s not here tonight to defend herself.”

Preslar expressed his discomfort in the way the town was operating and said that council members should be ashamed of themselves for not doing this at another time. Clewis agreed with Preslar regarding the conduct of the council.

“It’s almost like a witch hunt and the city manager is the one we’re after,” Clewis said.

Buie said he did wish that David was present for this decision, but it was something that the council had Morphis look at and it was something that needed to be dealt with.

“I didn’t vote for this contract,” Buie said. “I didn’t feel like our manager needed one. She’s going to retain her employment, but I just don’t like the idea of a contract. I had a lot of concerned citizens ask several questions about this contract, and I answer to people in this city. I’m sorry it is upsetting to some, but some will appreciate it.”

Amidst all the discussion on David’s contract, one concerned resident, Tommy Cooper, spoke up during the public comment period about the direction the city of Hamlet was taking. He believed that the council was continuously looking backwards instead of trying to move forward. He was also very concerned about the cost of the new city attorney and requested a price on his services since Morphis was hired by the council.

Clewis provided that information to Cooper following the closed session. Clewis said that the city’s previous attorney cost $10,000 for the entirety of last year. Clewis said that since Morphis has been serving as the city attorney and looking into two matters, the purchase of the A&P Building and David’s contract, that Morphis’ firm has billed the city $2,400.

Clewis thought it was important for taxpayers to know how much it was costing and he expressed concerned as a fellow taxpayer. Clewis did believe that Morphis was doing his job and that the firm is highly qualified, he just took issue with the price of the services.

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