TOP STORY, MAY: Ley tenders resignation to board

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ORIGINALLY PUBLISHED MAY 26, 2011

Sarasota County’s procurement scandal appeared ready to claim its seventh victim May 24, as County Administrator Jim Ley tendered his resignation at the start of the County Commission meeting.

By mid-afternoon, it was clear there were enough votes to accept it, but a hiccup over one term prevented its acceptance. The decision was deferred to the commission meeting on the morning of May 25.
On May 24, Ley asked Commission Chairwoman Nora Patterson for a point of personal privilege to address the board. After listing the accomplishments of his 14-year tenure, he accepted responsibility for the scandal “as the leader of this organization.” He added, “I’ve become the issue, the lightning rod.”
Ley said he had not communicated his decision to resign to the county commissioners before the meeting. That was apparent, as commissioners scrambled to figure their responses. After making his announcement, Ley left the commission chambers and was replaced in the usual proceedings by Deputy County Administrator Dave Bullock.

The terms
Ley’s contract allowed for dismissal in four ways. His normal contract was set to expire next year, so the commissioners could have let it lapse. The contract also had clauses regarding action in the event he was convicted of a crime; firing “without cause”; or resignation and working out a severance package, called “mutual termination.” Each of those options had separate financial consequences.
Since Ley has not been charged with any criminal behavior, the “for cause” option was moot. And it was doubtful – once he offered to resign – the board would ask him to stay on for another 18 months until his contract lapsed.

Instead of waiting to be fired “without cause,” Ley opted for the “mutual termination” provision, plus accrued vacation time and extension of his health care coverage. Bailey said the entire package came to about $305,000.

“I encourage your consideration of mutual termination. I have nothing but good wishes for the county commission,” Ley concluded.

County Attorney Stephen DeMarsh had worked with Bailey over the weekend on the terms. “I can tell you I believe those figures are an appropriate interpretation of the contract. They represent the approximate dollars to be paid should termination occur,” said DeMarsh. “I received the termination agreement just a few moments ago. I think it’s a fair and appropriate interpretation of the contract.”

Because of tax consequences. DeMarsh said Ley might want to use those monies differently. “But it doesn’t extend the county’s exposure beyond the existing contract,” DeMarsh said.

The discussion
After Ley dropped his bombshell and left, the commissioners scrambled to react, first deciding to talk the following day, but Commissioner Christine Robinson said, “I’d like to start the discussion this afternoon.”
And so they did.

Discussion resumed about 11:30 a.m. under “Commissioner Reports” on the agenda. Patterson wanted to defer the discussion until the next day, but it was clear other commissioners wanted more discussion that day.

“We’ll play it by ear,” said Patterson.

During the “Open to the Public” portion of the meeting, nine people came forward to speak on the resignation offer. Some supported Ley; some demanded further investigation.

Because several public hearings in the afternoon were cancelled, by 2:30 p.m., the commissioners were able to turn again to the resignation issue.

Commissioner Carolyn Mason was the first to give her reading: “I think it is in the best interest of this county, Mr. Ley – it’s my belief we should accept your proposal at this time.”

Commissioner Joe Barbetta went further.

“I can’t agree with this number in front of us right now. It’s a high number,” he said. He proposed a “claw-back” provision:

If Ley were convicted of a serious crime in the future, the county would get the severance money back.
DeMarsh noted that any addition to the agreement would have to be approved by both parties.

Commissioner Jon Thaxton joined in. “Two weeks ago, I concluded Sarasota County could not turn the corner and rebuild public trust without administrative change at the top level,” he said. “I shared that with Mr. Ley at that time.”

Robinson then made a motion to accept Ley’s termination agreement with the additional “clawback” language about criminal liability and repayment. “I think it’s time to move on this,” she said. “Do I like the fact we’re paying out this money? No. Do I think it’s necessary to get this community back to where it should be? Yes.”

DeMarsh reminded the board that, with a counter-offer on the table, the matter had to be discussed with Ley.

“I will reply later,” said Ley. “After I’ve had a chance to talk to my attorney.”

The commissioners then took a half-hour break.

Reaching for consensus
After talking with Ley, attorney Bailey returned to say they wouldn’t accept the new “clawback” language. “My offer was made in good faith and good will,” said Ley.

“If you’re concerned about what the future holds,” said Bailey, “let him continue to serve out his contract. If you want to wait it out, don’t terminate the contract.”

“That’s my preference,” said Patterson. “But I know that’s not the sentiment of the board. Remember, we’re going to have to go out there in the market [to look for Ley’s replacement], and it’s important candidates know we treat our administrator fairly.”

DeMarsh reminded the board that the “clawback” provision might not be enforceable. “Mr. Ley would have to pay taxes on the money. Of the money left, would it be used and spent? Would there be other assets to claim? I would expect there would be a suit,” DeMarsh said.

“My advice is not to sign,” said Bailey. “But if you want to talk about other provisions, maybe we want some, too. He would be fine with continuing his employment.”

“We should let Jim sleep on this overnight,” said Patterson. “That’s my desire.”

She then tabled further discussion to make way for a report of the National Institute of Government Purchasing on the county’s procurement process – the source of the scandal that prompted Ley’s
resignation offer.

After the presentation, discussion resumed. Ley refused to accept the “clawback.” “No matter what you think, your comments disparaged my character,” he said. “I suggest we take the evening to ponder.”

UPDATE: The County Commission agreed to Ley’s resignation terms, without the “clawback.”