A breach of contract


At today’s meeting of the Pagosa Springs Town Council, the town manager will be asking council to change his current employee agreement to allow for a $1,200 monthly housing allowance to be paid to him for living within Archuleta County. His current contract requires him to reside in the town of Pagosa Springs in order to receive the allowance.

The employment agreement, dated Oct. 16, 2008, between the Town of Pagosa Springs (Town) and David Mitchem (Employee) includes three mentions of housing:

• Section 4, “Residence. The Employee agrees for the term of this Agreement and any extensions thereto to maintain his principal, primary residence for purposes of voter registration and habitation within the corporate boundaries of the Town of Pagosa Springs …”

• Section 9 (b), “… a housing allowance in the amount of $1,200 per month shall be paid to the Employee to further the Employee’s ability to maintain a residence in the Town.”

• Exhibit A, “Performance Standards Constituting Breach,” No. 11 states, “Failure to maintain a principal and primary residence, and actually residing within, the Town of Pagosa Springs at all times during the term of this employment and any extension thereto.”

In April of 2012, voters approved a change in the Town charter to permit the town manager to live in Archuleta County. The town manager’s employment contract was not amended at that time.

On Sept. 26, 2012, David Mitchem changed his voter registration address to Divot Place.

The town manager was in breach of contract.

The housing allowance continued to be paid.

A new employment agreement was signed in November 2012, changing the residency requirement and performance standards, allowing the town manager to live in Archuleta County.

There was no change to the housing allowance requirement.

The housing allowance continued to be paid.

This all came to light at the Jan. 7 council meeting. Mayor Aragon commented at that meeting that a town manager should be allowed to live outside of the town limits.

The question isn’t whether the town manager should be allowed to live outside of the town limits.

The question is, shouldn’t the town manager have to abide by his contract?

The issue is why someone would accept taxpayer dollars for a housing allowance for living in the town limits when that’s not where he lived.

Is it ethical for someone to accept an estimated $18,000 over the past 15 months for residing in the town limits when he hasn’t lived within the town boundaries during that time?

It is very clear what the intention of the contract was: In order to receive an allowance, the town manager would maintain a residence in town. If the intention were for him to reside anywhere else, those words would have been omitted from the contract.

Other questions come to mind.

How well is our town manager watching out for the town’s interests?

We have a contract with clearly worded intention, so why hasn’t the council demanded their top-paid administrator abide by this contract?

Why didn’t the town manager bring this issue to the light of day long before now?

At the very least, Mitchem should reimburse the town the money he received for housing allowance while in violation of his contract.

It is our hope that the Pagosa Springs Town Council will hold their top administrator to a higher standard at today’s meeting.

Terri Lynn Oldham House