LYNN — The City Council has opted to scrap an ordinance that would have stripped certain employment benefits from department heads who move out of the city in violation of the City Charter’s residency requirement after a legal opinion found it contradicted the charter, which calls for an employee to be terminated.
City Council President Darren Cyr proposed the ordinance, which would have taken away benefits such as educational benefit pay, longevity and sick/personnel buyback from any department head who violates the residency requirement.
“The charter states that the proper discipline is termination, not an ordinance reducing pay,” said James Lamanna, the city’s attorney. “The charter supersedes any ordinance and the charter’s penalty is immediate forfeiture of your position.”
The proposal followed a move by Department of Public Works Commissioner Andrew Hall, who sold his house in Lynn for $567,500 and bought a home in Marblehead for $730,000 in January, according to the Essex Registry of Deeds.
Hall confirmed to The Item in a past interview that he was no longer a resident of Lynn, but was planning on moving back to the city soon.
According to the city comptroller’s office, Hall’s salary is $135,421, which includes a 25 percent education incentive. He also gets a separate 10 percent longevity check, or $10,833 payment each year, based on his base pay of $108,337 and uses a city car.
The City Council opted on Tuesday night to cancel their public hearing and essentially throw out the ordinance. Cyr said it was not due to lack of support — he expected the council to overwhelmingly vote in favor — but rather came from some questions of the legality of the proposed ordinance.
On Monday afternoon, Cyr said the council was planning to table the vote to allow further discussion, but after speaking with the city’s law department, he was advised to seek a legal opinion.
Lamanna said he was prompted to look into the legality of the ordinance, following an inquiry by The Item on Monday afternoon about whether it could be legally challenged or upheld in court.
Lamanna said from a labor law standpoint, it was legal, as no department head has a union contract. But the inquiry caused him to consider how he would challenge it if he was representing a department head.
“This ordinance seems to imply that you can move out of the city as long as you’re willing to sacrifice your benefits and that would set a precedent where every department head could move out and voluntarily take a pay cut,” Lamanna said.
“Such a scenario would be in direct contravention of the charter which says you don’t get to move out and take less pay. It says you move out and you lose your job.”
Lamanna advised the council to adhere to the disciplinary process of the Residency Compliance Commission, created by a council ordinance. Past practice has been to allow violators their due process rights of a disciplinary hearing and give them six months to move back to the city before termination.
Lamanna, head of the commission, is currently investigating residency claims from city employees and has identified 41 people where there is a question of residency compliance.
The number of possible violators is much higher than average, by about 15 to 20, according to Lamanna. He said police and fire contract negotiations, upheld by a 2010 court ruling that allows police and firefighters to move out of the city after a decade, may have emboldened other city employees to feel they should have the same right.
According to the City Charter, every city employee, except for the chief financial officer and superintendent, is required to live in the city, or move to Lynn within six months of being hired or their employment will be “deemed to be vacated or forfeited.” Teachers and school administrators are also exempt by state law.
This situation is unique, Lamanna said, because it’s the first time since the Commission was created in 1999, that a possible residency violator essentially turned himself in, by admitting to The Item he moved out.
The next step is up to Mayor Thomas M. McGee, according to Cyr. The charter dictates that it’s up to the mayor to enforce its provisions.
Cyr said this situation might open up a larger discussion of the need to update the City Charter, which is from 1978 and hasn’t been substantially updated since the 1980s.
“The mayor has got to step up, do what (he has) to do and abide by the charter,” Cyr said. “That’s what we’re all elected to do is abide by the charter … I did inform the mayor how I felt and he disagreed, which is OK. That’s fine. We can disagree, but let’s work together to change it so we don’t disagree. It’s that simple.”
Having Hall admit to the violation and say he was planning to move back didn’t soften Cyr’s stance on the need to enforce the residency requirement, but did play into the decision to rethink the ordinance.
He said the ordinance proposal wasn’t in direct response to one violation, but rather came after years of residency violations. It wasn’t about forcing anyone out, Cyr said, but rather about being fair to those who abide by the rules.
“(Hall) does an unbelievable job,” Cyr said. “He’s one of the hardest working guys I’ve ever worked with. He’s got a great personality. I just don’t agree with what he did. He put us all in a position that’s so uncomfortable and he knows that.”
Residency is a very passionate issue on both sides, he said. But it’s up to elected officials to separate their personal feelings and uphold the charter.
Cyr, who agrees with residency, said a charter change regarding the requirement would have to be approved by the voters. But in two past instances, residency has been upheld by a city-wide ballot vote by a large majority, he said.
“I’m the first to tell you, the charter’s outdated, but it doesn’t mean that because I don’t agree with it, I shouldn’t be enforcing it, because then I’m not doing my job,” Cyr said.