Benefit bicker

Pam Beal.JPG

Petition asks city councilors to reject health care coverage

Pam Beal speaks Monday against the health insurance
benefit provided to South Portland city councilors,
saying the plan could cost taxpayers more than $1 million
over nine years.

SOUTH PORTLAND — In the three weeks since Rosemarie De Angelis used her last meeting as South Portland mayor to resurrect an old question – the 34-year-old practice of providing city councilors with free health insurance – Tom Coward said "not a single person" he's spoken to has begrudged him his coverage, or its $17,000 annual price tag.

But after Monday night's council meeting, Coward allowed that he and Gary Crosby “may run in different circles.”

That's because Crosby – a commercial property owner, sometime developer and many-time candidate for public office – presented city councilors with 131 names signed to a petition demanding they give up their taxpayer-funded health benefit.

"It's wrong for any sitting legislative body to vote themselves benefits," he said.

Nobody denies that's exactly what happened.

In 1977, the City Council took advantage of a 1969 change in Maine law that broadened the definition of "employee" to elected and appointed officials for purposes of group health insurance policies. Since that time, councilors have received full health care coverage even though the enabling policy appears to violate the city charter, which fixes the annual compensation for each councilor at $3,000.

In addition to that stipend, councilors Coward and Tom Blake carry family plans, which cost $17,418 each. Councilor Maxine Beecher gets individual coverage, at a cost of $8,559. De Angelis, Gerard Jalbert and Alan Livingston, along with Mayor Patti Smith, have all declined the coverage.

As recently as three years ago, all but one member of the council took the benefit. But even though the tide appears to be turning on its own, that has not stopped some from trying to hurry the process.

On Nov. 29, the day after the council exhausted 90 minutes of debate on the health insurance policy, only to let the dust settle on the status quo, Al DiMillo sent an email blast. A retired CPA and columnist for The Current, DiMillo is famous for coming to frequent loggerheads with both the council and the school board.

In his email, addressed to all seven councilors and City Manager Jim Gailey, DiMillo promised to file a complaint in Cumberland County Superior Court "within a month" that will demand an end to the free health care benefit. DiMillo also promised to ask that current and former councilors be made to repay the cash value of any benefits still within reach of Maine's statute of limitations.

"If you agree to stop receiving the free health care immediately, I will not file my lawsuit," wrote DiMillo. "You risk not only losing future free health care, but will also have to repay thousands for prior years [of] illegal payments.”

DiMillo ended his missive by asking the city, "Please respond immediately or I will move forward with my lawsuit."

On Monday, Gailey said he has made no effort to respond.

"He sent it to the council," said Gailey. "He didn't ask for my two cents."

Smith said she also has not replied, and likely won’t. Smith said she and Gailey planned to meet Tuesday to plot out future workshop agendas, and the insurance issue could get an airing "at the end of January." However, she did not want to promise DiMillo anything, even with his one-month deadline looming.

"He can do whatever he'd like to do, I can't control his personal actions," said Smith, referring to the litigious threat.

The problem with that approach, Crosby said, is that DiMillo appears more likely than not to follow through.

"One thing we all know, Al does not bluff," he said, prior to presenting his petition at Monday’s meeting.

And that is why he gathered signatures in the first place. It's his hope, Crosby said, that the petition will prompt the council to "come to its senses" and voluntarily drop its health care coverage, before DiMillo forces the issue in court. Although DiMillo indicated in his email an intent to press his suit without benefit of an attorney, any court case is likely to cost the citizens of South Portland “a substantial sum,” said Crosby.

But even if DiMillo doesn’t press the issue and nothing changes, taxpayers could still end up on the hook, said resident Pam Beal, during the “citizen comment” portion of Monday’s meeting.

The city needs to budget the cost of the full family plan for all seven councilors, because any of them could sign up for coverage. That line item runs to more than $98,000, although most of it goes unused and rolls back into the general fund at the end of the fiscal year. Still, councilors who do take full coverage could cost taxpayers $156,762 (at current rates) before termed out of office after nine years, said Beal. If all seven councilors took the full coverage, that bill would jump to more than $1 million.

“And yet, we’re turning off street lights to save $23,000,” said Beal. “I find it unconscionable that we would spend over a million dollars in nine years and not put this out to the voters. Giving benefits to yourselves without voter approval really compromises the trust of the voter.”

Beal’s comment mirrored those of Crosby, who called the question “an ethical issue.” After the meeting, Crosby stressed he would not mind if councilors got health insurance, so long as the benefit was approved by voters, and explicitly provided for in the charter.

Crosby has vowed that if the council does not act on its own, to either relinquish the insurance benefit or poll citizens by calling a charter commission, he will petition for a charter amendment on his own.

At the council’s Nov. 29 workshop, Gailey and City Clerk Susan Mooney agreed that only the council can call for amendments to the city charter. However, on Monday, Mooney said that upon further review they’d determine citizens may initiate the process under prevailing state law.

Amending the charter would require a petition signed by 20 percent of the number who voted in the most recent gubernatorial election, said Mooney, which fixes Crosby’s target at 1,459 signatures.

But it might not end there. If forced to get the ball rolling on a charter amendment, Crosby said he’ll simultaneously launch recall efforts aimed at removing Coward, Blake and Beecher from office.

“It gets to the point where it’s a little out of hand when the citizens are paying for councilors who work part time and do it by their own volition,” he said. “To me, this is an ethical issue. It must be put to the people, to approve or not, and if those receiving the benefit are not willing to obtain the public’s approval for it, they’ve got to go.”

Meanwhile, Coward said Crosby is welcome to launch a recall effort.

“The process is there, I don’t have an issue with that,” he said. “But I ran unopposed last time. That tells me there’s nobody out there extremely dissatisfied with the way I’m doing the job, tempered with the idea that nobody else wants it.”

Coward said he supports the status quo. The insurance benefit is what allows people like him to serve, he said. Without it, Coward claims, only wealthy residents could take on a council position.

Coward said after Monday’s meeting that he’d support amending the charter, but only if the request comes from a grass-roots effort. After all, he said, the charter was amended in 1986 when the annual stipend for councilors was set at $3,000, and nothing was said of the health care benefit at that time.

“This practice was going on then,” said Coward. “If it was found to be an issue, or thought to be inconsistent with the charter, it would have been brought up then. But, until recently, I don’t think that’s the case.

Although some, like Marilyn Reilly, claim to have opposed insuring councilors for years, attempts to overturn the policy appear to have taken hold only in 2009. That’s when a series of public meetings were held on the topic, prompting City Attorney Sally Daggett to issue an opinion that nothing in either the charter or Maine law "expressly prohibits" councilors from declaring themselves employees for purposes of getting insurance coverage.

In that 2009 letter, Daggett also wrote that while the charter fixes councilor compensation at $3,000, nothing says that pay is the "total" value of all compensation, "exclusive of any other benefits."

Still, the debate was intense enough that De Angelis, who accepted the benefit during her first term, from 2003 to 2006, turned against the policy, and refused it when she won re-election in 2009. 

Soon after returning the council, De Angelis asked about a policy that lets full-time employees of the city who decline health coverage take a cash buyout equal to one-half of what the city would otherwise pay in annual premiums. A January 2010 memo from Daggett said De Angelis asked to take advantage of the buyout, but De Angelis says she was only soliciting an opinion on whether it was possible.

According to Daggett, it’s not. Her 2010 memo claims that while city councilors are deemed employees for purposes of obtaining health insurance, the are not considered employees when if comes to the buyout option.

De Angelis said she’s questioned that as an inherent conflict, and asked for a second opinion. This time, Gailey went to attorney William Plouffe, primarily because the city does not retain his firm, DrummondWoodsum, for any other matters.

Plouffe said in a Nov. 21 memo that giving councilors health insurance coverage "does not comply with the [$3,000] compensation limit" in the charter. However, given a dearth of relevant case law, Plouffe hedged by adding "the answer is not free from doubt."

For his part, Coward prefers to accept Daggett’s opinion, in part because she made allowance for the long history of the benefit in South Portland, while Plouffe’s opinion appears to take the language of the relevant documents at face value.

Regardless, despite the 131 names presented by Crosby, Coward said he’s not yet convinced there is any groundswell of support to upend longstanding practice in South Portland.

“I don’t perceive that it’s a matter of wide public interest,” said Coward. “I think it’s sort of like the controversy we had several years ago about canine access to Willard Beach. That went though years and years of really bitter discussion and, in the end, it turned out that it was a very small handful of people who just very noisy about it.”

Coward claimed to have forgotten it when giving the Willard Beach example, but the anti-dog movement was led by Crosby.