Breaking up is hard to do

The breakups — this is the third in 10 years — have a tabloid-TV quality: Grievances aired publicly, the blame game, lawyers and large alimony settlements.

The Jan. 13 ouster of BWL general manager J. Peter Lark, orchestrated by Lansing Mayor Virg Bernero, follows form. It reflects the increasingly ineffective oversight of the state´s largest municipally owned utility by part-time, inexperienced commissioners and Bernero´s gradual disillusionment with his trophy executive. The result of it all is that the mayor wants the utility´s general manager to report to him like other city department heads.

“We need greater accountability.” Bernero said. “This isn´t a new problem.”

LOVE LOST

Throughout most of his tenure, Lark was Benero´s boy. They were an odd pairing. Bernero voluble, political, impulsive and little rumpled; Lark coiffed, constrained and seeming to lack even rudimentary political instincts. He is perceived by Bernero as imperious, which in the political realm isn´t necessarily a handicap. But you´ve got to know when to tamp it down, especially with the boss.

During a tenure that started in 2007, Lark was able to manage his Board of Commissioners, offering up just enough information to keep them in line. But he didn´t realize that the utility’s dismal response to the 2013 ice storm altered his relationship with the mayor, and that even as Bernero was publicly backing his general manager, the ground had shifted. Attempts to contact Lark through his attorney George Brookover were unsuccessful.

On the surface, Lark and BWL seemed to have shaken off the ice storm issues. The commissioners, despite what they now say were misgivings, in the July voted 7-1 to reappoint Lark after giving him a "commendable" performance review.

But by November, Bernero was privately plotting his coup, meeting with BWL commissioners, airing his grievances and stoking the underlying doubts of some commissioners, Ultimately, Bernero was able to convince BWL Chairman David Price, Anthony Mullen, Anthony McCloud, Dennis Louney and Cynthia Ward to dismiss Lark. Ward was easy. She was the only commissioner to dissent on Lark´s positive job review. The others came around.

Louney was critical of BWL´s performance during the ice storm, even as Bernero was publicly supporting the utility and its management. Most board members were guarded in their critique. In private conversations last spring, the mayor questioned his decision to appoint Louney to the BWL board. He likes team players. But as his feelings about Lark hardened, Louney became a useful ally. It was Louney, along with Mullen who, initiated the motion to dismiss Lark.

“I was involved in discussions with the city attorney,” said Mullen, who was named to the BWL board in 2012. He is its newest member.

“I like Peter Lark. He´s a nice guy on a personal basis. But when I voted for him (his contract) in July, I didn´t know what I didn´t know. In the last few months, things are falling out of the tree that I didn´t like. If I had known then, I would not have voted that way.”

Known what? “I´m not willing to share my concerns,” Mullen said. But then he did.

“I think it´s performance and management style — a defensiveness. The board didn´t know about things.” he said of Lark.

Mullen said his belief that things at BWL wouldn’t change with Lark was reinforced by his “discussions with individuals, employees and contractors. For some of us going forward there were still questions about Peter´s leadership.”

David Price was elected chairman of the BWL board in April and like Mullen said his vote to fire Lark was essentially a “no confidence” vote.

“There was a building up of things. People finally said ´enough´s enough.´ The person responsible for the corporate culture is the person at the top. And the culture wasn´t changing.”

Certainly it had at City Hall, and ousting Lark had become Bernero´s mission.

“Certainly he lobbied hard. It was very clear that sometime before the holiday he had lost confidence in Peter,” Price said.

For Price, what Bernero wanted mattered. There is a perception that commissioners appointed to oversee BWL are somehow independent, that they are ultimately accountable to the utility and its ratepayers, the way corporate board members represent shareholder interests.

Not exactly. The Lansing City Charter states that BWL commissioners´ allegiance is to the Mayor and City Council. The chapter in the charter dealing with the utility is surprisingly brief and not always clear. It begins by granting the Board of Water & Light “full and exclusive management of the water, heat, steam and electrical services and such additional services” for the City of Lansing.

And then it adds: “The board shall be responsible to the mayor and City Council for the provisions of these services in a manner consistent with the best practices.”

For Price, “best practices” required a change of leadership and he began work ing with commissioners to plan for Lark´s exit.

He said he met with some board members — those who called him — but not with others. The voting blocks on Lark were hardening as the year ended. “I talked to the people I felt would be knowledgeable and would carry forth,” Price said. “I knew that some board members probably wouldn´t vote (to dismiss Lark).”

With these kinds of discussions, board members were in danger of violating Michigan´s Open Meeting Act which prohibits a type of private decision making called “round-robining.” This happens when public officials — board members — talk with one another and build consensus to act on a matter that should aired in public. The board´s pre-vote conduct could emerge as an issue during negotiations on Lark´s severance package.

Also fodder for these negotiations is Louney´s decision to bring to the board two very different Lark-dismissal motions.

With Bernero´s blessing, Louney was leading the board´s anti-Lark faction, working with city attorney Janene Mc- Intyre on a motion to dismiss the general manager “with cause.” While the reasons may have been vague, sustaining a “withcause” firing would cost BWL just six months of severance pay totaling about $129,251.

The alternative was termination “without-cause,” which would could net Lark three years of pay — almost $900,000.

Neither Bernero nor Price knew that Louney had prepared a second “withoutcause” motion for the board’s consideration. “I changed a few words,” Louney said. The “without-cause” motion may weaken the “with-cause” motion. All of this will be sorted out by lawyers for both sides.

Louney, whose disillusionment with Lark, mirrors others on the board, came into the Jan. 13 special meeting that he and Mullen had requested not knowing whether he had the five votes to fire the general manager.

“If we ended up with a 4-4 tie, the damage would have been done,” he said, adding that the rift caused by the vote would have made it impossible for board members and Lark to work collaboratively. The second motion was his backup if the first motion failed. Louney believed that the board had to resolve the matter at the special meeting, otherwise Lark was going to ride out his tenure as long as possible.

“The chair had asked Lark for his resignation in December,” Louney said. “I was hopeful that when it was evident that there wasn´t a majority of the commissioners on the board supporting him that it could all be handled amicably.

“I think the votes would have been there for ‘without-cause.’ Some commissioners could have voted for it if Lark were to get his full salary,” he said.

At least one of the commissioners didn´t believe there were sufficient grounds to support firing Lark “with cause.”

“There was nothing that happened from July until January that warranted that decision,” said Marge Bossenbery. She said Lark responded well to issues raised in the CRT and that he helped the board do what needed to be done.

SORTING OUT THE MESS

It is now up to the board to sort out the mess, and it started meeting this week. It must hire an attorney who can match wits with Brookover who has a fearsome reputation as an employment lawyer. It must repair board relations weakened by the vote to remove Lark and how it unfolded. And it must accommodate Bernero´s plans to gain more control of the utility.

It might also need a new commissioner.

Louney says he´s intrigued by the prospect of challenging City Councilwoman Jody Washington for her First Ward seat. And now in Bernero´s good graces, he would likely have the mayor´s support.

If Louney were successful it could clear the way for a new board member without any baggage, which is probably a good thing for the city, BWL, the commissioners and ratepayers.