By ALEX MALM

After Mayor Frank Picozzi announced that his and the health insurance copayments  of four employees had mistakenly not been deducted from their pay checks for 15 months and the amounts would be refunded to the city, Rick Cascella, Warwick GOP chair, questioned on Facebook whether Picozzi would seek refunds from the Fire Department for unused sick time.

“Will you be applying the same policy to your decision on the Harrington Report,” Cascella asked on Facebook. You pledged action on this almost a year ago. With a new fire contract coming, I’m sure you agree, closing this matter is in the best interest of the WFD and the taxpayer.”

The Harrington Report is part of a 10 page brief written by former City Solicitor John Harrington.

The brief was part of the report from the accounting firm Marcum, commissioned by the City Council more than three years ago but not released until the end of last August.

In 2013 then Fire Chief Edmund Armstrong signed a deal with the union which was witnessed by then Solicitor Peter Ruggiero. However, that amendment allowing an increase in payment for unused sick days to the contract was never ratified by the City Council or signed by then Mayor Scott Avedisian.

That practice ended under the late Mayor Joseph Solomon.

In his report, Harrington writes the “2013 document that purported to be an agreement between the Union and the City modifying the payment of excess unused sick leave is void and unenforceable.”

It goes on to read, “Any credit for additional sick leave or additional compensation that was paid to employees based on that 2013 document was credited or paid in violation of the Collective Bargaining Agreement that was in effect from 2012 to 2018.”

In November Liz Tufts a spokesperson for Picozzi said, “Following the release of the Marcum report and after much legal research Mayor Picozzi has determined that in 2013 the firefighter contract was amended contrary to the proper process and was not binding.”

“ The city must seek reimbursement of any monies paid out under that amendment. The administration has met with the union and they dispute the Mayor’s opinion and said they will present documentation to corroborate their view. When received, the administration will review it with the solicitor and decide how to proceed,” said Tufts.

According to the YKSM report (now Marcum) depending on the calculation used, firefighters were collectively paid $385,875 in excess payments.

Asked for comment about Cascella’s post on Monday Tufts said “It’s a politically motivated post by the chairman of the Republican Party. The Mayor will not be responding to it, as it’s a legal matter.”

Ward 5 Councilman Ed Ladouceur said that he also thinks that the city should seek restitution from the firefighters.

“The bottom line is in my opinion that money needs to be repaid, that was taxpayers dollars that was paid based upon a side deal that was not ratified by the city council,” said Ladouceur.

Ladouceur said he didn’t blame the rank in file.

“I’m not putting the blame on the rank in file firefighters, they had no knowledge of what was taking place, that was the leadership, it was the leadership of the fire department at the time as well as certain members of the Avedisian Administration,” said Ladouceur.

Asked if the matter has been settled Tufts said in an email “As I have stated several times, the Mayor says there is no further comment as it’s a legal matter.”

Cascella said he thinks the mayor should come up with a plan for the firefighters.

“In light of this health insurance copay mishap or oversite by the administration and the Mayor’s swift attention to what is essentially a personal involvement in this… that I would hope in a very non-political way that the mayor would use that same diligence with coming up with a solution for the firefighters as well,” said Cascella.

Union disputes report

According to Michael Carreiro, the President of IAFF 2748 the union for the Warwick Firefighters said the matter “involved a contract interpretation dispute over the terms of an ambiguous provision in the collective bargaining agreement between the City of Warwick and IAFF 2748.” 

“That provision allowed for payment of unused sick time for up to 10 days, but did not address what happened to the other 10 days that accrued during the year,” said Carreiro. “In 2013, the parties attempted to clarify the ambiguous language in the CBA via a Memorandum of Understanding, which permitted members to carry over any sick time that was not paid out that did not exceed the contractual cap.”

Carreiro said that in 2015 the city and the union “executed a successor agreement that permitted the payout of up to 15 unused sick days.”

“The CBA did not specifically address whether the additional 5 sick days could be carried over but, in accordance with the MOU and the parties’ past-practice, members were permitted to carry over the 5 sick days that were not paid out, provided they did not exceed the contractual cap of 140,” said Carreiro.

Carreiro said that the union disagreed with Harrington’s determination, because he said that the union believes that the MOU didn’t amend the contract and instead “clarified the parties’ understanding of what the CBA provision meant, it did not need to be ratified by the Council.”

“Further, even if the MOU was ‘invalid,’ it could still be used as evidence of past-practice between the parties as to the interpretation of an ambiguous contract provision,” said Carreiro. “To the extent Attorney Harrington claimed that past-practice jurisprudence did not apply, he was wrong.”

Carreiro said that in August 2018 Solomon “unilaterally discontinued the parties’ long-standing practice of permitting the Union to carry over up to 5 earned, but unused, sick days a year.”

“Because the Mayor’s action violated the CBA, MOU and the parties’ past practice, the Union filed a grievance,” said Carreiro. “The City claimed that its practice of permitting members to carry over up to 5 days of accumulated sick time per year was not consistent with the CBA. The union disagreed and believed that both the MOU and the past-practice was evidence that the ambiguous contract provision permitted the carryover of days that were not used, or paid out.”

Carreiro said that the grievance was resolved via a settlement agreement in October of 2019.

“In approving the settlement, the City’s arbitrator, Vincent Ragosta, notes ‘there’s a significant risk to both parties going forward with grievance arbitrations of this nature, and that’s what makes compromise and settlement valuable to the City, its taxpayers, the Union, and its members,” said Carreiro. “The neutral arbitrator and the union’s arbitrator agreed. As part of that settlement agreement, the language of the CBA was changed. Notably, the Union gave up four sick days per year in the new contract and agreed to cap any payout of unused sick days at 12. That language was ratified by the City Council.”

Carreiro argues that since the matter was “amicably resolved by all parties nearly two years ago, and the agreement was ratified by the City Council, the Marcum report is meaningless.”

“The report is based on an interpretation of the CBA that the Union disagreed with, challenged, and ultimately was resolved through a settlement agreement and subsequent CBA,” said Carreiro.

Carreiro also cited an ethics complaint that was settled against former Council President Steve Merolla for a reason why the report should be discredited.

“My other issue with this report is that former council president Merolla has an ethical complaint regarding this report,” said Carreiro. “He has ties to Thomas Lisi who was on the board at the Marcum group and was Merolla campaign treasurer. So you really want me to believe that the proper information was given for this report to be determined.”

Merolla was required to pay a $3,500 civil penalty after the Rhode Island Ethics Commission accepted a settlement agreement.