Friday, September 6, 2019

D-11 refuses to release severance pay agreement with former facilities chief

Posted By on Fri, Sep 6, 2019 at 9:40 AM

click to enlarge Colorado Springs District 11 won't release severance agreements. - PAM ZUBECK
  • Pam Zubeck
  • Colorado Springs District 11 won't release severance agreements.
Six months after Colorado Springs School District 11 handed one of its top officials a raise, the district sent him packing — with severance pay, records show.

Scott Lewis, executive director of facilities, operations and transportation, earned a job performance rating of "exemplary" in June 2018, but was placed on paid administrative leave from Jan. 2 through Jan. 31.

The Jan. 9 school board agenda reports his departure as a resignation, effective Jan. 31, for "personal" reasons, but when the Independent asked for his resignation letter, the district said, "No such document exists."

The district paid Lewis $15,477 for the one-month leave in January, as well as $3,119 for district benefits such as health insurance, under a severance agreement, according to data released by the district. But D-11 refuses to release or discuss the agreement itself.

D-11 public information officer Devra Ashby, declined to comment but provided a statement:
Personnel matters are reviewed by the Board of Education during closed executive sessions. Severance pay for an exiting employee is determined on a case by case basis after a Human Resources review process, in consultation with the Superintendent. The District refrains from commenting on specific individuals.
Asked about that on Sept. 5, Board President Jim Mason called withholding the document "stupid" and promised to check into it. He later called the Indy, saying, "We're going to straighten this out, so stand by for more information."

Meantime, Lewis says he left because his job was completed. "From my perspective," Lewis told the Indy in a Sept. 5 interview outside his rural El Paso County home, "I did a lot of heavy lifting for my boss [CFO Glenn Gustafson], who is a stellar supervisor. He hired me as a change agent. From my perspective, I completed what he wanted me to do. I don't have anything to add." That work, he said, was to staff up to handle projects funded through a mill levy override approved by voters in November 2017.

Lewis joined the district on Aug. 13, 2015, and scored at least two pay raises during his tenure. His pay history:
2015-16 school year: $103,969
2016-17 school year: $108,617
2017-18 school year: $116,252
2018-19 school year (partial, through January): $76,393

Gustafson ranked Lewis as "exemplary" in job evaluations in June 2016 and June 2018. For the intervening year, in June 2017, Lewis received a rating of "effective — Meets expected performance." Gustafson didn't respond to an interview request submitted to Ashby.

(In addition to Lewis, D-11 awarded severance pay to three teachers and a principal over the last year, totaling $86,337, according to data provided by the district, though it withheld the severance agreements.)

In response to the Indy's Aug. 23 records request, D-11's custodian of records Katherine Ritchie Rapp cited a portion of the Colorado Open Records Act (CORA) she contends allows severance agreements to remain secret.

CORA "does not require we provide copies of severance agreements, only amount paid or benefit provided incident to termination of employment," Ritchie, director of archives and records, wrote.

CORA allows certain information, such as addresses and phone numbers of public employees to remain private, but allows the release of records that include "applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports ..., or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions."

D-11's stance on severance agreements is in sharp contrast to that of other local agencies:

• In March 2019, El Paso County released a waiver and release agreement with longtime former budget director and Deputy County Administrator Nicola Sapp, who was paid $150,628 upon her departure on March 19.

• In May 2018, Harrison School District 2 disclosed a severance agreement in which it agreed to pay former Superintendent Andre Spencer $250,000 to end his contract agreement.

• In early 2017, the city of Colorado Springs released the severance agreement for former Stormwater Manager Tim Mitros, who was paid $58,525 to retire effective Jan. 13, 2017.

• In March 2016, the city disclosed a severance agreement with former Fire Chief Christopher Riley in which the city agreed to pay him $80,000, or six months salary, to leave.

• In March 2016, the city released its severance agreement with former Police Commander Fletcher Howard. He received six months' pay, or $59,308; $7,917 in unused vacation time, which is required by law to be paid, and $41,059 paid into Howard's retirement health savings account in accordance with the city's policy for converting unused sick time to cash for retiring ranking officers. The agreement also required that, "Employee will be given a retirement ceremony which will be held on February 16, 2016."

• In November 2013 and January 2014, the city agreed to pay a total of $139,138 to departing city attorney Chris Melcher in severance pay, consulting fees and outside legal fees paid to negotiate Melcher's agreement.

Tellingly, the city noted in at least two of those agreements: "All parties acknowledge the City is subject to the Colorado Open Records Act (“CORA”)."
click to enlarge District 11's headquarters. - PAM ZUBECK
  • Pam Zubeck
  • District 11's headquarters.
Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, notes that under CORA, all records made, maintained or kept by the school district for their use in the exercise of functions authorized by law are public records absent a specific statutory exemption. Among the records that must not be disclosed are “personnel files,” but the definition of personnel files in CORA specifically excludes “any amount paid or benefit provided incident to termination of employment,” he says.

So while CORA requires a records custodian to deny inspection of personnel files, the definition of personnel files excludes severance payments.

"So it’s saying the public is entitled to inspect those particular records," Roberts says.

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