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FOIA request delayed, questions remain unanswered

The Journal submitted a Freedom of Information Act request to the Town of Colonial Beach for documents pertaining to the negotiation of an employment agreement between the town and Christopher Hawkins on June 25.  
On Friday, July 2, The Journal received a request to extend the deadline by seven days for the FOIA request citing the town had “experienced issues with our server this week delaying the completion of your request.”  The Journal was also informed by Town Clerk Barbara Goff that the costs had risen to more than $200 because of the amount of staff time spent in working on the request.

However, The Journal was able to get a copy of an Employment Agreement (revised), which is the last version of the agreement to re-hire Hawkins as police chief.  Town Manager Val Foulds had also provided The Journal with a timeline of events from May 27 through June 27 regarding Hawkins’ resignation.
Hawkins’ resigned his position as police chief on May 30 by e-mail.  On June 8 Hawkins then submitted a letter indicating his desire to stay on as police chief and requesting to rescind his resignation. On June 10 the town council held a special meeting and unanimously agreed to direct town attorney Andrea Erard to draft a new contract before June 28.  
According to the timeline provided by Foulds, on June 14 a draft of a new contract was sent to Hawkins, Foulds, Mayor Fred Rummage and council members.  Then on June 16, Hawkins sent a memo to Foulds requesting a delay on any action by council as he needed “to discuss it further with [Foulds] and the town attorney.”  
The timeline further states that on June 22 Erard sent Hawkins a letter stating in part “I have sent you several drafts of a proposed employment agreement to extend your employment with the Town of Colonial Beach as the Chief of Police. To date, I have not received any type of response from you. I am concerned about the lack of any type of response from you,” and concludes saying “If I do not hear from you by the close of business on Wednesday, June 23, 2010, I will assume you are not interested in negotiating a new employment agreement, and that your resignation stands.”  
According to the timeline, on June 23 Hawkins advised Foulds by telephone that he was “not interested in negotiating a contract with the Town of Colonial Beach and that his resignation stands.” Hawkins turned in all town property to police captain William Seay on Sunday, June 27.
On June 28 and June 29 the council held a special meeting and unanimously agreed to offer an employment agreement to Grafton L. Wells Jr. to serve for six months as interim police chief, which will give the council six months to hire a permanent chief.
Hawkins’ original employment agreement dated January 3, 2008, provided that Hawkins “perform the functions and duties specified in said Code of Ordinances of the Town Code and such other legally permissible and proper duties and functions that the Mayor and Town Council shall from time to time assign.”  
Throughout the agreement it consistently stated that the Mayor and Town Council were the authoritative body with provisions to exercise that authority in the areas of reporting, termination of agreement, salary reviews, professional development, civic club memberships, vacation, sick and military leave, and other terms and conditions of employment.  According to Section 15-E, “The Mayor and the Town Council, shall annually review the performance of the Police Chief. The evaluation instrument shall be determined by the Mayor with the concurrence of the Town Council.”
Notably different in the proposed employment agreement drafted by Erard in June 2010, is the change from Mayor/Town Council to Town Manager as the authoritative body.  Section 1. Duties, states in part “It is understood by the parties that the Police Chief is to report to, and is under the direct supervision of, the Town Manager.” That provision is enforced under Section 2. Termination where it states “The Police Chief may also be terminated for cause which includes but is not limited to: “Failure to report to and/or follow the direction of the Town Manager.”  
The change in supervisory authority governing the police chief position is a result of an August 13, 2009, Resolution passed by council.  Resolution No. 69-09 states that “The Chief of Police and the Chief Financial Officer are hired and fired by the Colonial Beach Town Council, but shall report to the Town Manager on a day-to-day basis.”  
It remains unclear if there was a specific provision in the new contract that caused Hawkins to stop negotiations or if it was the “direct supervision” language contained in the new contract.   
In legal-speak, “direct supervision” usually is defined as “to be physically present or within an immediate distance” and “Direct supervision on a job may be defined by the degree of supervision by a person overseeing the work of other persons, by which the supervisor has control over and professional knowledge of the work being done,” according to USLegal.com. Use of direct supervision language as part of an employment agreement for a municipal department head is unusual and is more commonly used in job descriptions in the medical field.  
It appears that there has been a changeover in philosophy in Colonial Beach from a council-mayor form of government to a council-manager form of government.  According to Erard Colonial Beach utilizes a “more traditional form” of government.  The Town Code contains no language endorsing either form.   
According to the International City Managers Association, 48.9 percent of cities in the U.S. with a population over 2,500 use the council-manager form of government; with 38 out of 39 cities in Virginia governed under a council-manager form of government.  Only the city of Richmond is governed by a mayor-council form of government.  In council-manager type of government the elected town council appoints or hires a manager to oversee the administrative duties of the town and to follow directives by council, which sets policy and laws or ordinances.  
The proposed employment agreement drafted for Hawkins and the agreement provided to Wells are very similar, both noting “direct supervision” by the town manager.  Also included in Wells’ contract under Section 8. Other Terms and Conditions is the language that “he agrees to under-take a team approach in terms of administration and operation of a Police Department.”
Wells previously served as police chief for 17 years in Staunton, Va.  Staunton operates under a council-manager form of government and is known as being the first municipality in Virginia to adopt that form of government in 1908.

Kathy Flanagan

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