The agreement, signed April 8 and released Tuesday, was negotiated between manager Mark Earnest, Lowe and attorney Brooks Chandler.
It allows Lowe to remain on paid leave until June 17, when he will qualify to receive 100 percent of the borough’s contributions to his retirement account, and the additional $36,000.
According to chief fiscal officer Jila Stuart, three months’ leave amounts to $17,095. That compares to Lowe’s $84,000 salary for the current fiscal year.
When Lowe approached the borough with his resignation, he requested to remain employed until June 17 in order to obtain the retirement benefits, Earnest said.
Earnest would not otherwise comment on the nature or length of the negotiations, how the $36,000 figure was reached or why the borough engaged in a separation agreement instead of terminating Lowe outright.
Mayor Stephanie Scott, who signed the agreement on behalf of the assembly, said it is in the best interest of the community because it protects the borough from a lawsuit. However, she said Lowe hadn’t explicitly threatened to sue and she couldn’t say what grounds he might have for a suit.
“The objective was to allow the chief to step down without legal repercussions to the borough and to move as quickly as possible to repairing and restoring the department’s credibility. So if this is what it took in order to achieve that, I would say that maybe in this case the ends justify the means,” Scott said. The agreement includes a covenant for Lowe not to sue.
Assembly member Norm Smith said he thought Lowe might sue, and pointed to Earnest’s failure to conduct performance evaluations (including Lowe’s) for four years as a possible rationale for a suit. Assembly member Debra Schnabel also said the lack of evaluations could have contributed to how the situation with Lowe has been resolved.
“(Lowe) was not evaluated for four years. We have a manager that for four years told the assembly and the chief that (Lowe) was doing a great job... If the chief had been evaluated on a regular basis in a formal way, would many of the concerns that have been underscored by staff complaints, would they have been dealt with? Would that have happened? I can’t say,” Schnabel said.
Schnabel said while she found the cash payout portion of the contract to be “adequate,” she had a problem with allowing Lowe to remain employed with the borough until June just to secure benefits.
“In my opinion, it was an incredible concession... because we are looking out for the best interests of someone who we do not want employed with us anymore,” Schnabel said.
Smith referred to the concession as a “courtesy.” “He’s two months away from receiving this and it would not be a good thing if it didn’t happen... I think it’s out of courtesy that the assembly agreed to that portion of the thing,” Smith said.
Smith added Lowe also receives retirement benefits from a previous job in another state .
The assembly met in executive session for about 40 minutes April 9 to discuss the negotiated agreement. Assembly members said this week the agreement was presented to them, but they did not make any changes during the executive session. The assembly unanimously voted to approve the agreement.
“The assembly just weighed in on it, saw the specifics and said, ‘OK, it looks good to us,” Smith said.
When asked if he thought the agreement was fair, assembly member Steve Vick said “it’s the best we can do given the circumstances.”
“It’s fair for what it is. That’s a hard question. I guess it meets my expectations,” Vick said.
The agreement includes a “without cause” clause stating Lowe’s resignation – or its acceptance by the borough – should not be taken as an “assertion, finding or admission of wrongdoing on the part of either party.”
Lowe has been under scrutiny by the borough for the past two months following complaints from within the police department regarding inappropriate behavior including verbal abuse, intimidation, bullying, and the training of a Taser beam on two officers.
A majority of department employees corroborated a written complaint that Lowe had a history of such behavior here.
When asked why the assembly did not choose to fire Lowe and give him three months’ severance pay as his contract dictates, Schnabel said the assembly really didn’t entertain the idea of firing him once Lowe offered to resign.
“I don’t recall having a discussion or debate about whether we were going to fire him. I think we came to a consensus that it was best that he not be on staff,” Schnabel said.
Earnest said in an interview Tuesday he did not know whether he would refer the case to troopers for a criminal investigation, but said he would “look into it” and “follow up on that.”
“I don’t know. I just don’t know. I don’t know at this point. I’m not sure,” Earnest said.
Mayor Scott also said she would “follow up with that question,” but said she thought a criminal investigation would be “harmful to the community.”
“Whatever is legally correct needs to be done; if a crime was committed, then of course. But somebody is going to have to prove a crime was committed, and that’s going to be a mess. That means we’re going to have to live this all over again, and I don’t know if that’s worth it,” Scott said.
Trooper Ken VanSpronsen, who is currently acting as both the wildlife and state trooper in Haines, said Earnest would need to request troopers investigate in order for them to become involved. However, VanSpronsen was skeptical troopers would become involved, even if asked.
“I highly doubt we’ll touch it. Based on the information we have received to date, it doesn’t meet the statutory requirements,” VanSpronsen said.
Lowe, who was placed on paid administrative leave March 26, switched to annual leave April 10. He will exhaust his annual, personal and executive leave and then be placed back on administrative leave until June 17, his effective resignation date.
Under Lowe’s “Tier 4” retirement benefit, the borough pays into his retirement account 5 percent of his gross wages.