Crazy Claims Regarding Bagby's Contract
Many questions are swirling about Doug Bagby’s City Manager contract since KFVS-TV reported that “Bagby’s Remaining Contract” was $270,000. The Daily American Republic regurgitated the same information; quoting David Silverberg in today’s paper “The decision by the new coalition on the Poplar Bluff City Council to fire City Manager Doug Bagby will cost the city nearly $278,000 in salary he still must be paid under his contract.”
Here’s the problem: Missouri has laws and a constitution.
But before we get to that, let’s look at the contract Mr. Bagby is quoting from dated August 26, 2003:
2. Term. The initial term of this agreement shall be for a period of three (3) years, and shall begin on September 1, 2003 and shall terminate on August 31, 2006. Said three year term shall automatically renew annually upon the anniversary of this agreement.
Apparently Mr. Bagby’s understanding of his contract is that every year his contract renews for three more years. I say this because he is quoted by the DAR as saying his contract renewed last August and “I have two years and four months left on my contract.”
There are several ways to read this sentence which was poorly framed to say the least.
- Every year, the contract is renewed for three years (as Mr. Babgy claims)
- Every year, his contract is extended for 2 additional years. This would mean that in 2006 his contract term extended to 2009, in 2007 his contract extended to 2011, and by 2013 his contract term extends to the year 2023. (You should go for this reading Doug!)
- Every year on September 1, his contract is renewed for another year.
I’m going out on a limb and stating that the common sense understanding of this contract would be interpreted by most as a renewable one year term. But now, let’s look at the laws of our city, state and our constitution.
Our city laws actually have the term already defined for our city manager:
SECTION 115.050: TERM
The City Manager shall serve at the pleasure of the Council. (R.O. 2007 §2-46; Ord. No. 3674 §3, 5-19-69)
We could just stop there because Mr. Bagby’s contract also states that the parties agree “that their intention that the provisions of this agreement be binding only to the extent that they be lawful under existing applicable laws…”
In other words, since we have a conflict between the contract’s terms of one or three years with the law’s term of “at the pleasure”, the term’s section of Mr. Bagby’s contract become null and void. In fact, in 2008 this question came up in Skaggs v City of Kansas City. Kansas City has PRECISELY the same wording as our City’s statutes regarding the City Manager’s Term (our’s is in section 115, theirs is in section 218). The opinion of the court states:
Section 218(c), as noted above, states: “Term. The City Manager shall serve at the pleasure of the Mayor and Council” and makes no mention of a specific term of office. (Emphasis added.) This language reflects that city manager is to be an at-will position. Wheeler v. Board of Police Comm’rs of Kansas City (Mo.App. W.D.1996).
Again, according to case law, Mr. Bagby’s contract terms of one or three years are null and void. Mr. Bagby is an “at-will” employee who may be terminated at any time without cause specified.
Next, let’s look at Missouri law in Chapter 78:
78.610. The city manager shall devote his or her entire time to the duties of his or her office. He shall be the administrative head of the government subject to the direction and supervision of the council and shall hold his office at the pleasure of the council, or may be employed for a term not to exceed one year.
Our state statutes do allow cityies to contract with their city manager for up to one year rather than to serve at the pleasure of the council. However, in order to give Mr. Bagby a contract in the first place, the City Council back in 2003 would have had to change our ordinances to specifically allow a one year contract.
And then there is our constitution which in Article 6, Section 26 requires that no public entity make any commitments of indebtedness longer than a year. The courts, as far as I can tell, have upheld this since the 1954 landmark case (Grand River Tp., De Kalb County v. Cooke Sales & Serv.) frequently quoted:
It has been well established that this means no contract of such a political subdivision is valid which obligates it to make payments in subsequent calendar years.
Our constitution, without a two-thirds vote of our community, prevents our council from committing us to a contract of more than one year. It is highly unlikely that any court would consider Mr. Bagby’s three-year contract as valid.
It is my opinion that his contract is Void Ab Initio. I love that phrase which pushes English and Latin words together for the meaning “to be treated as invalid from the outset.”
Because there is no severance portion to his contract, Mr. Bagby is owed his final paycheck and that is all other than his retirement/pension.
Finally, for those “inquiring minds”:
SECTION 115.140: TERM
The City Clerk/Treasurer shall serve at the pleasure of the City Council. (R.O. 2007 §2-83; Ord. No. 3678 §1(f), 5-19-69)