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Legal memo called for Warwick firefighters to make restitution for sick time payments

Firefighters union says dispute over contract interpretation has been settled, but Warwick resident Rob Cote calls for Mayor Picozzi and City Council to demand the money back

Warwick City Hall.
Warwick City Hall.Lane Turner/Globe Staff

PROVIDENCE — Warwick firefighters or their union should pay back up to $386,000 in “excess payments” made to firefighters for unused sick time between 2013 and 2018, according to a newly released memo that a City Council lawyer wrote in 2018.

The issue is arising now because the Marcum accounting firm sent the City Council a report on Aug. 18, saying the city had made “excess payments” to firefighters of either $385,875 or $308,043 during those years, depending on which “payout scenario” was used.

Rob Cote, a Warwick resident who has been speaking out about the firefighter sick pay issue since 2016, filed a public records request and obtained a legal memo appended to the Marcum report.

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In that November 2018 memo, John J. Harrington, then legal counsel to the City Council, wrote to then-City Council President Steven Merolla, saying he had been asked to weigh in on the legal validity of an April 2013 agreement on payments for unused sick time.

Harrington concluded that the agreement, signed by the Warwick firefighters union president and Warwick’s fire chief, was “void and unenforceable.”

For one thing, he said, the agreement “lacks the specificity to be relied upon as the basis for changing how the excess unused sick time was compensated” under the union contract. Also, the fire chief lacked the authority to sign such an agreement, and while then-Mayor Scott Avedisian did have that power, the mayor didn’t sign the document, he said.

Harrington said that any “benefit enhancement” should have been submitted to the City Council for ratification, but that never happened. And he dismissed the idea that the agreement should be considered valid as a “past practice,” saying this situation didn’t meet the legal requirements for use of “past practices” in arbitration hearings.

Harrington concluded that any payments or credits for additional sick leave given to firefighters based on that 2013 agreement was made in violation of the contracts in effect from 2012 to 2018.

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Therefore, he wrote, “The city should pursue restitution and reimbursement for those credits and payments from the union and/or the individuals who benefited from the changes that occurred under the 2013 document.”

On Monday, Warwick Mayor Frank J. Picozzi said he has not decided whether to seek restitution for those payments. He said the city solicitor, Michael Ursillo, is reviewing Harrington’s memo.

“My solicitor has it and is analyzing it,” Picozzi said. “That was a new addition. We will see how to proceed on that.”

Cote argued that the 2013 agreement amounted to a “secret side deal,” and he said Picozzi and members of the City Council are “not fit for office” if they fail to seek restitution after reading Harrington’s memo.

“It was done behind closed doors. It didn’t come before the City Council. It was not heard in public,” Cote said. “The mayor and the City Council have the responsibility not only to vet this entire scenario in public so it never happens again, but to also demand restitution.”

He said the 87 firefighters who received “excess payments” should return that $386,000. And he argued that the city should ask firefighters or the former city solicitor to pay back the $195,000 that went to the accounting firm YKSM (now Marcum).

“That’s a total of $581,000,” Cote said. “When the city has seven broken down trash trucks, $581,000 buys a lot of repairs to sanitation vehicles.”

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Cote had filed an ethics complaint over the $195,000 in payments to the YKSM accounting firm (now Marcum). And on Aug. 17, the state Ethics Commission found probable cause to believe that Merolla, the former City Council president, violated the ethics code by approving those payments to YKSM, whose partners included Merolla’s campaign treasurer and personal accountant.

On Monday, Cote said he has filed numerous public records requests over the years, and he claimed Merolla “buried” both the Marcum report and Harrington’s legal memo.

Merolla’s lawyer, Christopher S. Gontarz, said Merolla would have no comment “in light of the ongoing matter” before the Ethics Commission.

But he said that Merolla voted against the city firefighters contract, and he said Merolla handed over the Harrington memo to the FBI during an investigation into the situation.

Michael Carreiro, president of the Warwick firefighters union, Local 2748, says firefighters never received “excess payments,” so there is no need for restitution.

In a written statement, Carriero said, “This 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, he said. In 2013, the union and the city tried to clarify the ambiguous contract language in a memorandum of understanding, which allowed firefighter to carry over any sick time that was not paid out that did not exceed the contractual cap.

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In 2015, the union and the city reached a new agreement that permitted the payout of up to 15 unused sick days, Carreiro said. The contract did not address whether the additional five sick days could be carried over. But in keeping with past practice and the memorandum of understanding, firefighters were allowed to carry over the five sick days that were not paid out, as long as they didn’t exceed the contractual cap of 140 days.

Carriero said the union disagrees with Harrington’s 2018 memo, which concluded the memorandum was invalid. He said the 2013 memorandum of understanding did not amend the contract – it just clarified how the union and city understood the existing language, so no City Council ratification was required.

Even if the agreement was deemed “invalid,” it could still be used as evidence of past practice regarding how the union and the city interpreted ambiguous contract language, Carreiro said.

In August 2018, then-Mayor Joseph J. Solomon Sr. stopped firefighters from carrying over up to five earned, but unused, sick days a year, so the union filed a grievance, which was resolved in an October 2019 settlement agreement, he said. As part of that settlement agreement, 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, and the City Council ratified that language, he said.

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“Given that this 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,” Carriero wrote.


Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him on Twitter @FitzProv.