A report obtained by the Glen Rose Reporter through an open records request states that it is “problematical” that severance payment checks given to Chester Nolen “were prepared many days in advance” of the date he was terminated from his position as city administrator.
The report was conducted by the Fort Worth-based firm Lynn Law, PLLC, hired by the city to investigate the circumstances surrounding Nolen’s departure in May 2018. The City Council voted to terminate Nolen’s contract, by 3-2 vote. Nolen received $46,800 in severance pay and $10,800 for earned paid time off.
The findings also show that Nolen was not terminated “for cause.”
The report notes that, “if the City Council lacked confidence in the city administrator, which is the only other reason given (in Texas Local Government Code),” to terminate the contract, then the Council can only do so “by two-thirds vote of the Council members.”
It then notes that, in this case, a two-thirds vote would have required at least four of the five Council members to vote for Nolen’s contract termination, rather than the 3-2 vote that was recorded.
The report states that the law firm’s investigator “believes she interviewed all persons with first-hand knowledge of the facts of the severance payment to the city administrator.”
The report states that on May 9, 2018, four checks were brought to the mayor (Sue Oldenburg, at that time) to be signed — two in the amounts of $15,613.02 each, one for $8,042.60 and one for $3,225.12.
The city’s finance director (Sherry Reeves, who resigned Oct. 26, 2018), “stated she was unaware of a practice of writing checks in advance before payment was approved by the City Council.”
The report states that, “No performance review was conducted by the Council during the May 11, 2018 executive session, even though the posting stated the executive session’s purpose was for “review of city administrator …”
It also states, “No facts were uncovered that would lead to a definite conclusion that any discussions between Council members regarding the status of the city administrator occurred between the date of the posting of the meeting, May 8, 2018, and the date of the meeting May 11, 2018. The meeting was called by the mayor, and at least one Council member discussed the upcoming meeting with the mayor before the meeting.”
The report notes that Nolen’s contract “had been amended on February 12, 2018 to increase the severance pay.” It added that, “The contract provided for payment of the severance if the City Council ’desired the resignation of the city administrator prior to the expiration date of the agreement. The six months compensation was to include “unused PTO and Medicare payments.”
It also states that the contract “provided for no severance if the city administrator were terminated for ‘good cause’ or by ‘mutual agreement of the Council and administrator in writing and signed by both parties.’ No one advanced any reason to terminate the city administrator for ‘good cause’.”
The City Council currently includes Robert Marquez, Julia Douglas, Chris Bryant, Johnny Martin and Mayor Pro Tem Dennis Moore.
At the time of the vote to terminate Nolen, the Council was comprised of Sandra Ramsay, Doug Mitchell, Linda James, Moore and Marquez. The three who voted in favor of the contract termination were Mitchell, Ramsay and James, while Moore and Marquez voted no.
Oldenburg submitted a resignation that was dated as being effective Oct. 31, 2018.
James resigned from her seat on the City Council in a letter dated Sept. 11, 2018.
Neither Ramsay nor Mitchell chose to run for reelection in 2018, and Bryant and Douglas became the new Council members.
The law firm’s report states that the investigator talked with two individuals in the Texas Attorney General’s Office concerning “remedies the city might have,” and suggests potential scenarios if the City Council chooses to take any action.
— “The Council can ask the district attorney to investigate to determine if a crime has been committed by the former Council members and/or the city administrator. The district attorney is not required to conduct such an investigation, but if he chose to, he could ask another district attorney to undertake the investigation to avoid a perception of bias.”
— “The Council itself could communicate through its attorneys directly with the former city administrator and demand that he return the money, as it was improperly paid to him.”
Moore, who is still mayor pro tem with the mayor’s seat vacant, said on Wednesday morning, “I believe the district attorney did look at it, at some point, and they didn’t do anything.”
Asked if the Council might vote to pursue legal action, Moore said, “I don’t want to comment on the report. I really can’t speak for the other Council members. I’ll let the report stand on its own. I think it’s pretty self-explanatory. I believe the citizens can read the documents and come up with their own conclusions.”
The report from Lynn Law, signed by Bettye Lynn, was dated Oct. 16, 2018. The document was provided to the Glen Rose Reporter on Tuesday, Feb. 12.
Moore noted that there was a delay in the decision to release the report because of confidentiality questions, so a copy of the report to the Texas Attorney General’s Office asking for advice on its release. The AG Office rule that it was leaving that decision up to the Council, which voted to release the report.
The report also states, “Any citizen of the community could file a lawsuit naming the former City Council and the former city administrator seeking a Declaratory Judgment that the payments to the city administrator were illegal and seek a refund (claw back) of the proceeds of the severance pay provided to the city administrator.”
Members of the public, under the Open Records Act, can file a request for a copy of the law firm’s full report.