April 20 2016 01:52 PM

Time for Bernero to come clean on McIntyre payout

In February, when Lansing Mayor Virg Bernero first said the $160,000-plus departure payout to his city attorney served the best interest of the city, it seemed plausible, though extravagant.

But the inept cover-up — and it is a coverup — that he and his lawyers have orchestrated to hide the reasons for Janene McIntyre's fat golden parachute by now seems only to serve his political interests.

Bernero during his years as mayor has been able to bull his way through controversies, often because his instincts and plans helped the city. But this business with McIntyre is different and isn't going away. The secrecy, the missing documents and tortured legal justifications only reinforce the obvious: There are serious problems in City Hall and for Bernero, who expects to run again for mayor in 2017.

Uncharacteristically, he did not respond to a request to address the McIntyre controversy. Consider that there is nothing Bernero likes more than a fight, with the City Council, Lansing Township, county commissioners, Republicans, the press. He isn't America's Angriest Mayor by accident.

He would never open up the city's check book to a disgruntled city attorney except to protect someone or something in his administration. The Bernero response to a disgruntled McIntyre would be: “You don't think things are working out? Too bad. Get back to work. We've got a lot going on.”

No organization, government or business, makes large severance payments to departing employees unless it has to. They negotiate settlements for cause, to compensate for a hostile work environment.

Incredibly, Bernero has characterized the McIntyre payout as “a pittance” and during an interview with the Lansing State Journal said the city has paid out other and larger departure payments. This would be a pattern that is both troubling and expensive.

What makes all of this unfathomable is Bernero's outrage over the Lansing Board of Water & Light's $650,000 payout to its discredited CEO, J. Peter Lark. Proclaiming “never again,” he pushed for a city Charter amendment to cap executive-level payments to officials like McIntyre.

That was then. His deal with McIntyre exceeds the limit he insisted on. Bernero now calls the money paid to the city attorney a “separation agreement,” not a severance payment. The law firm he hired to negotiate the McIntyre settlement cooked up an opinion parsing the difference between separation and severance, in effect, neutering the charter amendment.

Referencing the departure document negotiated by Bernero and McIntyre, the city claims the agreement “is not an employment contract. It is a Separation Agreement and Release. The two legal concepts are separate and distinct. Section 6.401 of the City Charter is not applicable to the instant Separation Agreement and General Release.”

As a legal document, the reference to employment contracts is unavoidable. But was there even a contract with McIntyre?

In its “The-Dog-Ate-It” defense, Bernero and his staff just can't seem to find it. Negotiating McIntyre's separation deal without a copy of her employment contract would seem an incredible failure of the city's fiduciary obligation. The employment contract should be the starting point for discussions.

Clearly, Bernero knew that offing his city attorney was a dicey affair. He laundered the dirty work through the local law firm Dykema Gossett, which cobbled together a settlement and offered legal cover for his actions.

But the missing contract is just too convenient, too Nixonian. And there are other missing documents related to McIntyre's separation that raise questions about the timing of the settlement and the payments to Dykema Gossett.

One of the firm's attorneys, Gary Gordon, portrayed himself as representing Bernero in a voicemail to City Council President Judi Brown Clarke. He later said he meant he and his firm represented the city. But when the city responded to the State Journal's Freedom of Information Act filing for Dykema Gossett's billing invoices, there were no charges for Gordon's work. And the first two pages of the invoice were missing. Finance Director Angela Bennett, who approved the payment, wouldn't discuss the billing issues and referred LSJ's questions to the mayor.

Finally, there is the non-disparagement provision agreement that Bernero has used to stonewall inquiries about what happened with McIntyre and why.

It applies to key city officials and to McIntyre and prohibits them from any action dealing with the employment relationship that “disparages, damages, or could disparage or damage the reputation or goodwill, business, or standing in the community of the Employer (the City of Lansing) or the Employee (McIntyre).”

It seals the secrecy with a $10,000 damage payment to the aggrieved party.

But this offers Bernero an out if he really believes that buying off McIntyre was in the city's best interest. If she was an awful employee, an inept attorney, and impediment to his administration, Bernero can say it and deal with the $10,000 penalty.

Considering that he's already termed the $160,000 payment is a pittance, what's another $10,000 to put all of this behind him? To come clean. If there is nothing to hide, why not do it.

There is another, more treacherous option to pierce the cone of silence. The disparagement provisions are waived if testimony is required in a legal proceeding.

Brown Clarke said she may ask Michigan Attorney General Bill Schuette to investigate the payment and cover-up. If he smells a cover-up, he just might. City Council members also have discussed hiring a lawyer to pursue an independent investigation, since Bernero has declined to provide any meaningful information about McIntyre's departure to the city's elected legislators. It would need outside funding for this, but very likely could fine it.

A suggestion for Virg: Tell it all and tell it yourself. This issue isn't going away.