A Carbon County judge has voided an employment agreement between the borough of Nesquehoning and its police chief.
Nesquehoning Borough Council discussed the recent ruling. The borough had asked that the contract between Police Chief Sean Smith and the borough be voided because it was acted upon by an outgoing council and was not an urgent matter.
Judge Steven R. Serfass stated in his opinion, dated Dec. 10, that Nesquehoning's motion to void the contract is granted because "the agreement was entered into after a municipal election but before the newly elected council members took office. Accordingly, the subject agreement is void as being against public policy.
"In reaching our decision in this matter," Serfass continued, "we do not assert nor even imply that Chief Smith acted other than in utmost good faith in negotiating the employment contract at issue herein. He had served the borough of Nesquehoning as chief of police since April 17, 2001 and had been working in that position, without a new employment contract, since Jan. 1, 2011.
"Notwithstanding these considerations, we must be guided by the settled law of our Commonwealth in this area which holds that a governing body cannot bind a successor board to an employment agreement extending into the terms of the successor board."
Councilman Robert Marouchoc said last night that Smith worked 342 days without a contract in 2011; adding that the contract adopted on Dec. 8, 2011 by the previous board, included a 9.4 percent or $5,400 pay raise.
The issue began in December 2010, 13 days before Smith's contract was to expire.
At that time, Smith asked that negotiations for a new three-year contract begin. An employment offer was provided on April 22, 2011, but was not approved.
Negotiations between Smith and the borough continued until Sept. 20, 2011, when a second contract proposal was sent out to council. Members identified areas of concern that needed to be addressed before the contract would be approved.
During that time, Smith continued working for the borough as its police chief and was not actively seeking new employment, even though he had no employment contract in place.
While negotiations continued, a municipal election was held and two new council members were elected, their term to begin Jan. 1, 2012.
On Dec. 8, 2011, council adopted the employment agreement between Nesquehoning and Smith in a 4-3 vote, with two outgoing council members voting in favor of the contract.
Prior to that vote Councilwoman Rose Walck raised concerns about the contract and asked that the agreement be tabled until the new board be sworn in, in January 2012.
Council members Frank Jacobs and Mary Fox also raised concerns regarding the 9.4 percent salary increase outlined in the contract.
On March 28, 2012, the new council voted that the contract acted on by the previous council was "against public policy because it was entered into by a lame duck council and not supported by the current members," Serfass' opinion stated.
The council filed an action for declaratory judgment against Smith on May 14, 2012 and began the case.
On July 13, 2012, Nesquehoning filed a motion for judgment on the pleadings, but were denied by the courts on Dec. 31, 2012 because of limited records submitted.
On June 6, 2013, council again filed a motion of summary judgment based on further discovery and depositions.
The council will now continue negotiations with the police chief until a new agreement is reached.