David, Grim battle over Byard’s contract

November 4, 2011


By Mary Kindig

Review Correspondent

Tensions erupted at Wednesday’s Clare County Board of Commissioners meeting, resulting in a series of terse exchanges between Chairperson Don David and Commissioner Lynn Grim.  David and Grim, who have a history of normally friendly disagreement, have been at odds most recently over David’s insistence that Administrator/Controller Tracy Byard undergo an evaluation that other administrators have not been subjected to, and that Byard sign an agreement to renegotiate her contract, despite the fact that the window stipulated to do so had passed.

The discussion began tamely enough.  “I don’t know why we’re doing a renegotiating of a contract.  It makes no sense to me.  We never negotiated the last one for all the years that he was here.  We’re in the first year with a lot of changes and a lot of things coming down, and now we’re going to renegotiate.  I just find it…” Grim began, paused, and then remarked, “Standards are different and I don’t like it.”

“As I look at it, we’re delinquent in not meeting the deadline for renegotiation as we required.  We’re just making amends,” Commissioner Jerry Burger said.  “We do not have to renegotiate the contract, even if you do the evaluation,” Grim responded.

Chairperson David entered the conversation, saying, “The Board has voted to renegotiate the contract and what that means is we’re down to a letter asking Tracy if she will waive the conditions that exist in her contract.  Her contract said that her term expired on September 30th, and I knew that, but out of consideration for her, because it was the middle of budget time, I chose to not bring it up.”  “That was derelict to do if you knew about it,” Grim commented.

Grim read from Byard’s contract, “‘And shall continue thereafter on the same terms and conditions on a year-to-year basis unless either party serves written notice on the other of renewal or intent to renegotiate terms of this agreement.  Notice shall be given at least 30 days before the expiration of the term.’  Now to me, the term ended September 30th, and you should have done the 30 days before that or else it continues on a yearly basis.”   “We didn’t do it to Bill’s.  Bill’s just renewed,” Commissioner Karen Lipovsky noted.

Grim continued, “I do not read it that you have the right, just by giving her the 30 day [notice], that you can do that.”  “If you read the letter that you got in front of you, it’s asking her to waive it so that we can continue with the process.  The Board has voted to renegotiate her contract, so that’s a mute point.  You can argue it until the cow’s come home, but it’s already been done.  We’re going to do that, OK.  We’re going to renegotiate her contract.  We have two options here:  One is that she sign off and let us go ahead and renegotiate the contract December 2nd like we have already planned, or, if she refuses to sign off, then we have to vote whether or not we cancel her contract, cancel her altogether, and then renegotiate,” David said.

“That’s not the way I understand it, Don.  I talked to the attorney about this and he did inform me that I should not open up the contract with the County Board.  We should sit down, discuss what wants to be negotiated, and then if both parties agree, then we can change the contract, and I can waive the 30 days.  That is the way I understand it,” Byard said.

“May I ask you where the waiver comes in on the contract, that it states that we can do a waiver?  I do not see that.  Would you please point it out to me?” Grim asked David.  “There is nothing in the contract.  I’m asking her to sign a waiver,” David said.  “But that isn’t one of the ways we’ve…” Grim began.  David interrupted, “But we’re not dealing with Bill, we’re not dealing with Randy…” Grim then interrupted David, “Oh, I understand that, I understand that.”

David continued, “The motion’s already been made that we are going to renegotiate the contract.  Now it’s up to Tracy.  If she wants to sign off, that’s fine.  If not, then I’m going to ask for a motion to terminate her contract, and then we start over again.  So you can complicate this as much as you want, Lynn…”

“I’m not trying to complicate it, Don.  I want you to follow…” Grim did not finish her comment before David interrupted,  “You want us to back off completely and not do this at all.”  “I want to follow the rules, then, if you’re going to do it.  And we didn’t do it, and you even stated several times now that you knew that the contract was going to come to an end, and you didn’t do anything,”

Grim raised her voice.  “And how much of a ruckus would you be raising if we did this…”  David began.  “It doesn’t matter.  You knew and you didn’t do it.  Now you want to circumvent the contract.  That’s my problem,” Grim said.  “I want her to sign a waiver, yes that’s right,” David said with a touch of sarcasm.  “Yes you do, and you knew it was coming up and why didn’t you follow what we do?”  Grim asked.  “Because, you said it yourself, we’ve never done it before.  It’s never been done.  Nobody’s ever followed the rules.  Now we’re trying to follow the rules,” David replied.

“Yeah, I know the rules, Don — they’re made as we go along, Donald.  I know,” Grim responded.  “Well, that’s not the case,” David said.  “Well, it is.  And it smacks of…” Grim did not finish her comment, but then continued, “You are one member of a seven member Board.  You are not, just because you are Chairman, you do not get to circumvent all the rules and regulations of this Board.  You are just Chairperson.”  “Nobody’s circumventing the rules and regulations,” David responded.  “You do.  You did,” Grim replied.

“According to [Attorney Dave] Stoker, he said that to renegotiate the contract, is that both parties know what the terms are going to be and that we both agree,” Byard said to David.  “You will know what the terms are going to be when we get down to renegotiating the contract.  You will know December 2nd.  We will start discussing it.  And it will go to another Board meeting, just like everything else, and you will know the terms.  The Board will have a chance to tell you what the terms are and what they want, and you’ll have a chance for your input.  That’s what we’re asking.  The waiver is not in the contract, but it’s a perfectly acceptable process for changing the rules, and that’s what I’m asking you to do – allow us to change the rules, accept the reason I did it, so that you wouldn’t have to put up with both of these issues at the same time – the budget and this – but it’s up to you,” David replied.

Grim addressed David, “You might as well tell us what your plan is now, Don, so we can have it before we go in there, so I can know what we’re opening up for, because you’ve got a plan – I just don’t know it yet.”  “That’s probably true.  I have a plan.  Those are my proposals.  Do you have a proposal?” David asked.

“No, I do not have a proposal,” Grim replied.  “Well, you can make up all the proposals you want, we can vote on them, Lynn – that’s what renegotiation’s all about,” David said.

“I don’t know what we have to renegotiate for,” Lipovsky interjected.  “Because the Board has voted to renegotiate,” David said loudly.  “Because you insisted that they did.  That’s how come we’re doing it,” Grim said.  “I just don’t think, Lynn, that there’s any member of this Board that’s intimidated by me,” David replied.  “No, but you work your magic,” Grim responded.   “So what are you suggesting?  That we bow to your wishes?” David asked.  “Oh you don’t bow to mine on anything, so don’t be giving me that, no, no, no, no,” Grim replied.

“If she wants to renegotiate and sign off on this waiver and continue on the road that we already set up, fine.  If she doesn’t, then we, as a Board have to make some other decisions, and make some other motions,” David said.  “Which is to terminate her,” Grim interjected.   “That would be it,” David said.  “That’s the other motion you make if she doesn’t sign it,” Grim said.  “Then renegotiate.  I will tell you this, Lynn.  Any proposal I make doesn’t have anything to do with termination,” David stated.

With Commissioner Jack Kleinhardt absent, the roll-call vote to present the letter David had written, asking Byard to renegotiate her contract, was split along gender lines.  Commissioners Leonard Strouse, Jerry Burger, Jim Gelios and Chairperson David voted in favor of presenting Byard the letter; Grim and Lipovsky voted against.

Later, during the Committee of the Whole meeting, Byard opted to sign the letter that will re-open her contract for negotiation.

Also during the Committee of the Whole meeting, Byard’s evaluation summary was presented to the Board by Lori Ware, who compiled the results.  Byard earned an overall score of 3.2 out of 5.  A score of 3.0 indicated that Byard “meets all relevant performance standards, seldom exceeds or falls short of desired results or objectives, lacks appropriate level of skills or is inexperienced/still learning the scope of the job.”  Byard scored highest in the categories of “mission aligned” and “effective oral and written communication skills” (3.5) and lowest in “process/organization management” (2.9).  Ware noted, “I don’t have a narrative summary, but all comments were positive.”  The Board will review the narrative summary and discuss the evaluation at its next meeting.

In another major issue at Wednesday’s meeting, the Board voted to replace the three remaining old boilers in the County Building.  While there is no doubt that the old boilers have been working beyond their life expectancy and that the County Building has suffered wild fluctuations in the ability of the old boilers to heat the building with any consistency, it was still an issue as to whether the Board should go forward with the expense during such uncertain financial times.

Lori Ware had been asked by David to collect information and talk to previous bidders about the installation of the three new boilers.  Ware reported, “The cost of two boilers, without the financing, is $84,165.  The cost for three boilers, without the financing, is $104,200.  For the air exchanges per hour and what’s needed for this building, it would work with two boilers, but it is recommended that three are installed.  With the 60-month installment payments, it’s at $1,916 a month, so the total cost that you would have over the 60 months is $114,960.  But right now the old boiler is working at about 20 percent efficiency, and you’re going to probably see a cost savings per month from about $1,500 to $2,000.  So, basically, you’re going to get a return on your investment after the 60 months, but it’s going to be paying for itself with the higher efficiency boilers.”

“Is this going to offset from what we pay for energy, or how are we going to pay for this?”  Commissioner Grim asked.  “We’re going to be running in the hole,” David responded.  “What are we going to do, Jenny?” Lipovsky asked Treasurer Beemer-Fritzinger.  “Don’t ask me.  I’ve been asking you guys for a long time,” Beemer-Fritzinger replied, adding, “Obviously we need it, but I don’t know.  You’re going to have to…is it already included in the budget, Tracy?”   “No,” Byard replied.

“I know we’re responsible for infrastructure and things are going down.  How does that square when we’re looking at layoffs and a four-day week?” Commissioner Strouse asked.  “Well I guess, Leonard, what our concern is if the main boiler goes down, it’s now running at 20 percent efficient, if it goes down, we have no heat in the old part of the building,” David replied, adding, “If the building freezes up, we’re going to pay for it in spades…I guess it’s an option of pay now or pay later.”

When Commissioners asked Byard for the total natural gas usage for the 2011 fiscal year, Byard returned to the Boardroom with a total of $19,144.  After discussion, Commissioners voted to take $19,160 out of the Contingency fund to cover the payments for the three high-efficiency boilers for the remainder of the 2012 fiscal year.

The vote was 4-2, with David and Lipovsky casting the dissenting votes.  David commented that he voted against the measure because he thought it would be better to pay for the boilers outright, thus eliminating the $10,700 interest scheduled to be payed over the life of the loan.  Monthly payments on the three new boilers at four percent interest would be $1,916.  The motion included that a contract be made between the County and Gateway Refrigeration that would allow for early repayment without penalty.

In other business during Wednesday’s meeting, the Clare County Board of Commissioners:

*voted unanimously to support the resolution authorizing additional amendments and/or project authorizations to the master agreement with the Michigan Department of Transportation.

*defeated a motion by a vote of 1-5 for the BOC to meet only once a month, with Grim casting the lone vote for approval.

*voted to reduce all per diem from $25 to $20 for all County operations, effective January 1, 2012, by a vote of 5-1, with Lipovsky casting the dissenting vote.

*approved the shipping charges of a front-end loader from New York to Clare County, by a vote of 5-1, with Gelios casting the dissenting vote.  The loader would be free, and could be sold at auction after one year, according the Ed Williams of the Sheriff’s Department.  Commissioner Strouse offered to front the money for shipping, which was estimated at $3,127.54 (and would seek repayment of only $3,000), but Treasurer Jenny Beemer-Fritzinger noted that there were no accounting procedures for accepting and repaying a gift from a private citizen and that it may not be legal according to auditors.

*failed to pass a motion requiring Commissioners to pay their own expenses for non-mandatory trainings and conferences, by a vote of 3-3.  Gelios, Strouse and David voted to pass the measure, and Lipovsky, Burger and Grim voted against.

*voted unanimously to agree with the OWI forfeiture funds creation, and allow Byard to go forward with the process.

*unanimously approved the application for a GIS grant, as requested by Central Dispatch/911 Director Keith Yats, and authorized Board Chair to sign.

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