TOR-2014-5 VEHICLE USE POLICY _. . __ �2�D(—e e us-eJ o te�— �
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TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF o
THE TOWN OF AGAWAM TO ADD SECTION 49-9 �r
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault and Robert Rossi) -
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt an
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
§ 49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. Municipal vehicles shall be utilized for official town business only.
No person shall use any municipal vehicle for their personal use, except the Mayor,
Police Chief, Fire Chief and Deputy Fire Chief when they are on call. Personal use shall
be defined as any use of a municipal vehicle for other than official town business.
Municipal vehicles shall only be driven by the individual to whom it has been assigned
and shall not be used outside of the town unless on official town business.
Iq
2. Marking of vehicles. All municipal vehicles, except for vehicles assigned to the Police
Department detective bureau, shall be appropriately marked with departmental or
town seals or appropriate lettering that is highly visible and identifiable. as a municipal
vehicle. All municipal vehicles, except for vehicles assigned to the Police Department
detective bureau, shall have municipal license plates.
3. Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a municipal vehicle shall
be permitted to take said vehicle to and from work:
A. M ayor;
B. ' Fire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work.
4. Parking in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
S. Effective date. This ordinance shall take effect upon its passage.
6. Violations and penalties. The Mayor shall be charged with enforcing the provisions of
this section of the ordinance. Anyone found to be in violation of this ordinance shall be
subject to appropriate disciplinary action, up to and including termination from
employment.
DATED THIS OF 2014,
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
-TA it
it
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Robert Rossi, Donald Rheault and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt
an ordinance on the use of municipal vehicles to set proper policy on the use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which
would enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance
on use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and
enacts the following Section 49-9 to the Code of the Town of Agawam:
STATEMENT OF PURPOSE
The purpose of this policy is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicle(s)") in the
course of providing city services and conducting city business. This policy is intended to
ensure the safety and wellbeing of city employees, to facilitate the efficient and effective
use of city resources, to minimize the city's exposure to liability, to monitor the use of
city owned vehicles, and to comply with Internal Revenue Service regulations relating to
city vehicle usage.
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Robert Rossi, Donald Rheault and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt
an ordinance on the use of municipal vehicles to set proper policy on the use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS,the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS,the Agawam City Council desires to create adopt an ordinance which
would enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance
on use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and
enacts the following Section 49-9 to the Code of the Town of Agawam:
STATEMENT OF PURPOSE
The purpose of this policy is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicle(s)") in the
course of providing city services and conducting city business. This policy is intended to
ensure the safety and wellbeing of city employees, to facilitate the effainnt nnrl effective_
use of city resources, to minimize the city's exposure to liability, U1 S
city owned vehicles, and to comply with Internal Revenue Service re ( � L
city vehicle usage. �h
bD b wwts 4-
�Vtl qu UT not
GENERAL PROVISIONS
City vehicles are to be utilized exclusively for city business and matters relating to the
operation of the services provided by the city to the community. This policy covers all
city owned vehicles and/or vehicles leased by the city.
Any violations of this section may result in disciplinary action including, but not limited
to, verbal warning, written reprimand, time off without pay (suspension), loss of use of
city vehicles, and/or termination.
All employees assigned a city vehicle are required to sign a statement indicating that
they have read and will comply with this section.
ADMINISTRATION
The Mayor or his designee is the source of authority for the administration and control
of this ordinance.
This ordinance shall supersede all existing policies and/or guidelines regarding the use of
municipal vehicles, and shall take effect immediately upon its passage.
ELIGIBILITY
For the purpose of this ordinance, the Mayor, the Chief of Police, the Fire Chief, Deputy
Fire Chief, the Emergency Management Coordinator and the Superintendant of Public
Works are considered to serve in a 24 hour capacity and are entitled to have unrestricted
use of a city owned vehicle and only while acting in such an official capacity and only
while acting on official city business; under no circumstances shall a city owned vehicle
be used for private or personal use. Take home purposes are for to and from the work
place only.
An employee required to drive in the course of their regular duties and while on city
business may be assigned a city owned vehicle during working hours only, subject to
availability.
No city employee shall be assigned a city owned vehicle to commute back and forth to
work, except those employees as listed in section (C-1) above without the express written
consent of the department head and by approval of the Mayor.
RESTRICTIONS ON USE
City owned vehicles shall be used only in the performance of city business, including meetings,
conferences or other business related events. City owned vehicles shall not be used for private or
personal business except for incidental stops during travel to and from the work place. Personnel
are prohibited from transporting personal property.
City vehicles will not be used to transport family members or other passengers not engaged in
city business, without prior approval.
Except for and during the performance of official city business, no alcohol or firearms shall be
carried in a city vehicle without express permission.
An employee who is operating a city owned vehicle will be required to pay for any moving
motor vehicle violations and/or parking tickets he/she is responsible.
Should an employee who is assigned a city owned vehicle on a 24 hour basis, be absent for more
than three (3) days the city owned vehicle shall be returned to the work place for the duration of
the employee's absence.
All city owned vehicles shall bear current official municipal license plates assigned to each
vehicle as issued by the Commonwealth of Massachusetts, Registry of Motor vehicles.
Exception: Any city owned vehicles assigned exclusively to the police Detective Bureau that
require special purpose plates shall be assigned to each specific vehicle in accordance with the
laws of the Commonwealth of Massachusetts and the Registry of Motor Vehicles.
All city owned vehicles shall bear the Town of Agawam Sea] permanently affixed and
conspicuously displaying the markings of the city department to which the vehicles are assigned.
All city owned Police and Fire vehicles and apparatus are required to have conspicuously
displayed markings with appropriate Town of Agawam seals and/or decals, as well as
appropriate emergency lighting to include an emergency light bar where required; exception, any
vehicle exclusively assigned to the police detective bureau.
Personal Use
Employees who drive company vehicles shall not, at any time, use company vehicles for
personal reasons. This policy shall be strictly enforced with disciplinary action, up to and
including termination. Employees are restricted from personal use of any kind, including, but not
limited to, the following:
• Using company vehicles to run personal errands on or off the clock.
• Transporting non-employees in company vehicles, including family members
• Allowing non-employees to use company vehicles for any reason.
SPECIAL CIRCUMSTANCES
This policy is intended to provide a basic framework governing the use of city owned vehicles in
the Town of Agawam, and, as such, cannot contain procedures governing every situation that
might arise. Employees seeking clarification of or exemption from the procedures of this policy
should contact the office of the Mayor who will provide such clarification and may authorize
exceptions to the policy under mitigating circumstances.
DATED THIS OF , 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
barbara bard
From: Vincent Gioscia <vfgesq@gioscialaw.com>
Sent: Thursday, August 21, 2014 9:56 AM
To: barbara bard; Mayor Richard Cohen; Russell J. Dupere
Subject: Re: Meeting Date
Not ready for a meeting yet. I forwarded a copy of the updated Ord. to Labor Counsel in order to
obtain an opinion from a labor relations perspective.
Vincent F. Gioscia
Gioscia & Gioscia, Attorneys at Law
82 Main Street, Suite 2
West Springfield, MA 01089
Ph. 413-746-5711 ext. 2
Fax. 413-746-6700
E-mail. of es ioscialaw.com
Sent from my Pad
> On Aug 21, 2014, at 9:52 AM, "barbara bard" <BBard(&agawa_m.ma.us> wrote:
> Hi Vince - Are you available on August 27th regarding meeting for the Vehicle Use Ordinance?
> Make it a great day!
> Barbara A. Bard
> Administrative Assistant
> Agawam City Council
> 36 Main Street
> Agawam, MA. 01001
> (413) 726-9716
> (413) 726-9717 fax
> bbard@aaawam.ma.us
> -----Original Message-----
• From: Vince Gioscia
> Sent: Tuesday, August 19, 2014 3:29 PM
> To: Barbara bard; Mayor Richard Cohen
> Subject: Meeting Date
> Barbara:
> When is the next meeting of the Legislative Sub-Committee? I may need to talk to them about
TOR-2014-5 (Vehicle Use Ord.)
>
> thanks,
>
> Vincent F. Gioscia, Esq.
> City Solicitor, Town of Agawam
> 36 Main Street
> Agawam, MA 01001
> 413-786-0400 Ext. 8281
> Solicitor[s�agawam.ma.us
> Confidentiality Statement
> This Town of Agawam electronic message along with any corresponding attachments may contain
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Any disclosure, copying, distribution, or use of the contents of this message in any manner is strictly
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2
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Robert Rossi, Donald Rheault and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt
an ordinance on the use of municipal vehicles to set proper policy on the use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which
would enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS,the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance
on use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and
enacts the following Section 49-9 to the Code of the Town of Agawam:
STATEMENT OF PURPOSE
The purpose of this policy is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicle(s)") in the
course of providing city services and conducting city business. This policy is intended to
ensure the safety and wellbeing of city employees, to facilitate the efficient and effective
use of city resources, to minimize the city's exposure to liability, to monitor the use of
city owned vehicles, and to comply with Internal Revenue Service regulations relating to
city vehicle usage.
GENERAL PROVISIONS
City vehicles are to be utilized exclusively for city business and matters relating to the
operation of the services provided by the city to the community. This policy covers all
city owned vehicles and/or vehicles leased by the city.
Any violations of this section may result in disciplinary action including, but not limited
to, verbal warning, written reprimand, time off without pay (suspension), loss of use of
city vehicles, and/or termination.
All employees assigned a city vehicle are required to sign a statement indicating that
they have read and will comply with this section.
ADMINISTRATION
The Mayor or his designee is the source of authority for the administration and control
of this ordinance.
This ordinance shall supersede all existing policies and/or guidelines regarding the use of
municipal vehicles, and shall take effect immediately upon its passage.
ELIGIBILITY
For the purpose of this ordinance, the Mayor, the Chief of Police, the Fire Chief, Deputy
Fire Chief, the Emergency Management Coordinator and the Superintendant of Public
Works are considered to serve in a 24 hour capacity and are entitled to have unrestricted
use of a city owned vehicle and only while acting in such an official capacity and only
while acting on official city business; under no circumstances shall a city owned vehicle
be used for private or personal use. Take home purposes are for to and from the work
place only.
An employee required to drive in the course of their regular duties and while on city
business May be assigned a city owned vehicle during working hours only, subject to
availability.
No city employee shall be assigned a city owned vehicle to commute back and forth to
work, except those employees as listed in section (C-1) above without the express written
consent of the department head and by approval of the Mayor.
RESTRICTIONS ON USE
City owned vehicles shall be used only in the performance of city business, including meetings,
conferences or other business related events. City owned vehicles shall not be used for private or
personal business except for incidental stops during travel to and from the work place. Personnel
are prohibited from transporting personal property.
City vehicles will not be used to transport family members or other passengers not engaged in
city business, without prior approval.
Except for and during the performance of official city business, no alcohol or firearms shall be
carried in a city vehicle without express permission.
An employee who is operating a city owned vehicle will be required to pay for any moving
motor vehicle violations and/or parking tickets he/she is responsible.
Should an employee who is assigned a city owned vehicle on a 24 hour basis, be absent for more
than three (3) days the city owned vehicle shall be returned to the work place for the duration of
the employee's absence.
All city owned vehicles shall bear current official municipal license plates assigned to each
vehicle as issued by the Commonwealth of Massachusetts, Registry of Motor vehicles.
Exception: Any city owned vehicles assigned exclusively to the police Detective Bureau that
require special purpose plates shall be assigned to each specific vehicle in accordance with the
laws of the Commonwealth of Massachusetts and the Registry of Motor Vehicles.
All city owned vehicles shall bear the Town of Agawam Seal permanently affixed and
conspicuously displaying the markings of the city department to which the vehicles are assigned.
All city owned Police and Fire vehicles and apparatus are required to have conspicuously
displayed markings with appropriate Town of Agawam seals and/or decals, as well as
appropriate emergency lighting to include an emergency light bar where required; exception, any
vehicle exclusively assigned to the police detective bureau.
Personal Use
Employees who drive company vehicles shall not, at any time, use company vehicles for
personal reasons. This policy shall be strictly enforced with disciplinary action, up to and
including termination. Employees are restricted from personal use of any kind, including, but not
limited to, the following:
• Using company vehicles to run personal errands on or off the clock.
• Transporting non-employees in company vehicles, including family members
• Allowing non-employees to use company vehicles for any reason.
SPECIAL CIRCUMSTANCES
This policy is intended to provide a basic framework governing the use of city owned vehicles in
the Town of Agawam, and, as such, cannot contain procedures governing every situation that
might arise. Employees seeking clarification of or exemption from the procedures of this policy
should contact the office of the Mayor who will provide such clarification and may authorize
exceptions to the policy under mitigating circumstances.
DATED THIS OF , 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault and Robert Rossi)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt
an ordinance on the use of municipal vehicles to set proper policy on the use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which
would enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance
on use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and
enacts the following Section 49-9 to the Code of the Town of Agawam:
STATEMENT OF PURPOSE
The purpose of this policy is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicle(s)") in the
course of providing city services and conducting city business. This policy is intended to
ensure the safety and wellbeing of city employees, to facilitate the efficient and effective
use of city resources, to minimize the city's exposure to liability, to monitor the use of
city owned vehicles, and to comply with Internal Revenue Service regulations relating to
city vehicle usage.
GENERAL PROVISIONS
City vehicles are to be utilized exclusively for city business and matters relating to the
operation of the services provided by the city to the community. This policy covers all
city vehicles and/or vehicles leased by the city.
Any violations of this section may result in disciplinary action including, but not limited
to, verbal warning, written reprimand, time off without pay (suspension), loss of use of
city vehicles, and/or termination.
All employees assigned a city vehicle are required to sign a statement indicating that
they have read and will comply with this section.
ADMINISTRATION
The Mayor or his designee is the source of authority for the administration and control
of this ordinance.
This ordinance shall supersede all existing policies and/or guidelines regarding the use of
municipal vehicles, and shall take effect immediately upon its passage.
ELIGIBILITY
For the purpose of this ordinance, the Mayor, the Chief of Police, the Fire Chief, Deputy
Fire Chief, the Emergency Management Coordinator and the Superintendent of Public
Works are considered to serve in a 24 hour capacity and are entitled to have unrestricted
use of a city vehicle and only while acting in such an official capacity and only while
acting on official city business; under no circumstances shall a city vehicle be used for
private or personal use. Take home purposes are for to and from the work place only.
An employee required to drive in the course of their regular duties and while on city
business rn be assigned. a city vehicle during working hours only, subject to
availability.
No city employee shall be assigned a city vehicle to commute back and forth to work,.
except those employees as listed in section (C-1) above without the express written
consent of the Department Head and by approval of the Mayor.
RESTRICTIONS ON USE
City vehicles shall be used only in the performance of city business, including meetings,
conferences or other business related events. City vehicles shall not be used for private or
personal business except for incidental stops during travel to and from the work place. Personnel
are prohibited from transporting personal property.
City vehicles will not be used to transport family members or other passengers not engaged in
city business, without prior approval.
Except for and during the performance of official city business, no alcohol or firearms shall be
carried in a city vehicle without express permission.
An employee who is operating a city vehicle will be required to pay for any moving motor
vehicle violations and/or parking tickets for which he/she is responsible.
Should an employee who is assigned a city vehicle on a 24 hour basis, be absent for more than
three (3) days the city vehicle shall be returned to the work place for the duration of the
employee's absence.
All city vehicles shall bear current official municipal license plates assigned to each vehicle as
issued by the Commonwealth of Massachusetts, Registry of Motor vehicles. Exception: Any city
vehicles assigned exclusively to the Police Detective Bureau that require special purpose plates
shall be assigned to each specific vehicle in accordance with the laws of the Commonwealth of
Massachusetts and the Registry of Motor Vehicles.
All city vehicles shall bear the Town of Agawam Seal permanently affixed and conspicuously
displaying the markings of the city department to which the vehicles are assigned.
All city Police and Fire vehicles and apparatus are required to have conspicuously displayed
markings with appropriate Town of Agawam seals and/or decals, as well as appropriate
emergency lighting to include an emergency light bar where required; exception, any vehicle
exclusively assigned to the police detective bureau.
PERSONAL USE
Employees who drive city vehicles shall not, at any time, use city vehicles for personal reasons.
This policy shall be strictly enforced with disciplinary action, up to and including termination.
Employees are restricted from personal use of any kind, including, but not limited to, the
following:
• Using city vehicles to run personal errands on or off the clock.
• Transporting non-employees in city vehicles, including family members
• Allowing non-employees to use city vehicles for any reason.
SPECIAL CIRCUMSTANCES
This policy is intended to provide a basic framework governing the use of city vehicles in the
Town of Agawam, and, as such, cannot contain procedures governing every situation that might
arise. Employees seeking clarification of or exemption from the procedures of this policy should
contact the Office of the Mayor who will provide such clarification and may authorize
exceptions to the policy under mitigating circumstances.
DATED THIS OF ) 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
Town of Agawam Law Department
Memorandum
�° My
To: Councils Robert Rossi and Donald Rheault
Chairman James Cichetti,Legislative Committee
All City Council Members
Cc: Mayor Cohen
From: Vincent Gioscia
Date: November 3, 2014
Subject: TOR-2014-5
Dear Councilors:
In response to your request for clarification please see the attached letter from our Labor Counsel dated
August 25, 2014, as well as a Memorandum of Understanding dated January 9, 2014. Paragraph two of
the Memorandum of Understanding specifically says that the Chief of the Fire Department and Chief of
the Police Department may use vehicles for personal use.
In addition, other employees are covered by the "past practice" doctrine as stated in Attorney Dupere's
letter of August 25, 2014.
Respectfully Submitted,
r
z
Vincent Gioscia
i
r
Dupere Law Offices
94 North Elm Street,Suite 307
Westfield,ittnssachusetts 01085
Tel.(413)5G2-3300 Fax,(413)562-3301
Feruand j.Dupere,Esa.
Russell j.Dupere.Esq.
Adam J.Dupere.Esq.
August 25,2014
Vincent Gioscia
Solicitor
Town of Agawam
36 Main St.
Agawam,MA 01001
RE: An Ordinance to Amend the Code of the Town of Agawam to Add Section 49.9
Entitled Use of Municipal Vehicles
Dcar Solicitor Gioscia,
It is my understanding that you have requested my legal opinion regarding whether labor
relations issues may arise if the proposed Ordinance referenced above is implemented by the
Council. Based upon my review of the Ordinance,it is my legal opinion that the Ordinance
could be challenged by the bargaining units under the provisions of the collective bargaining
agreements and/or the requirements of M.G.L.c. 150E.
It is my understanding that certain town employees have been entitled to use town
vehicles for marry years. Said use and the requirements governing said use are currently dictated
by the language contained in the collective bargaining agreements as well as past practice. In the
event that the provisions of the Ordinance conflict with the collective bargaining agreements
and/or past practice or create additional restrictions and/or requirements,the collective
bargainin&units will likely challenge said Ordinance. ire Elkouri&Elkouri,How Arbitration
Works,5 Edition,p.767(`'Moreover,new or changed plant rules that curtail employee
privileges supported by long-established past practice may be subject to challenge.'). Further,in
the event that the Town attempts to discipline employees based upon the requirements of the
Ordinance,the bargaining units will also likely litigate the issue.
It is my opinion that the Town would need to determine what the collective bargaining
agreements and/or past practice currently require regarding usage of town vehicles. Then,said
requirements would need to be compared with the requirements contained in the Ordinance. If
any of the requirements vary from the current requirements,the Town would be required to
negotiate with the collective bargaining units in order to implement the requirements in a legally
acceptable manner. This is particularly important due to the provisions specifying that discipline
could occur due to a violation of the requirements contained in the Ordinance.
Sincerely,
Russell J.Duperu,Esq.
2
MEMORANDUM OF UNDERUANDING
BY AND BETWEEN_TE9 TOWN OF AGA AM
AND AgAMM Q 5 N
The Town of Agawam(hereinafter referred to as-Town-)and the Agawam
Administrative union(hereinafter referred to as"Union")hereby agree to the following terms,
coaditions,and understandings.
1. The Town and Union are parties to a collective bargaining agreement.
2. The Town and Union agree to add to the existing Article 27 of the collective bargaining
agreement a second paragraph to read as follows: "the Employer shall provide a police
vehicle for use by the Chief of Police and a fire vehicle for use by the Chief of the Fire
Department and pay for all attendant operating and maintenance expenses and insurance.
Said vehicles are to be used by the Chide in connection with the performance of their
duties as Chief of Police and Chief of the Fire Department and for their professional
growth and development. The vehicles may be used by the Chiefs for personal reasons,
sinoe the Chiefs are"on-call in the event of emergencies. Any tax and retirement
contributions due as a result of the use of the vehicles&hall be the rasponsNiity of the .
Chief§.,,
3. The Town and Union agree to add to the existing Article 27 of the cnlloctivcbstgaining
agnmrent a third paragraph to read as follows: "Tbo current Pollee Chief will continue
to receive fb[I benefits of the Quinn Bill(i.e.,thirty percent(3^))during tho term of his
employment regmdIr a of the ansount of state contribution,if any. Any future Police
Chief will also receive the benefit at their a Trent Quinn Bill percentage provided they
were receiving the Quinn Bill prior to becoming the Police Chief."
4. The Town agrees that the provision listed above will be effective immediately upon
execution of this Mcmorandtrm of Understanding.
S. This Memorandum of Understen&ng-�411 be attached to the parties'collective bargaining
agreement,and will autommtically be incorporated into a successor agreement
6. This Memorandum of Understanding is riot precedent setting for any same or similar
c rcummstanm in the future.
7. Thcre are no other agreements,tither verbal or writtm between the parties to this
Memorandum of Understanding.
FOR THE TOWN OF AGAWAM FOR THE AGAWAM ADMIMSTRATIVE
UM
e
Dated•_ D g_ •• ZD/7T- __ Dated:
io
INTEROFFICE MEMORANDUM
TO: VINCENT GIOSCIA, CITY SOLICITOR
FROM: COUNCILORS ROBERT ROSSI AND DONALD RHEAULT
SUBJECT: TOR-2014-5
DATE: 11/3/2014
We are in receipt of your Memo dated October 28, 2014 regarding TOR-2014-5 in
which you stated you feel this proposed Ordinance would subject the town to an unfair
labor practice complaint and subsequently refuse to sign the same. We are at a loss to
understand your reasoning behind this decision.
Would you kindly state where in any contract does it specifically state that this
proposed Ordinance could be a potential unfair labor practice complaint? In Management
Rights, the city has a right to control and direct the use of its equipment, facilities and
properties and it shall not be subject to grievance procedure or to arbitration.
Please respond in writing prior to our upcoming City Council meeting on Wednesday,
November 5 h. Thank you.
cc: Full Council
FA
Town of Agawam Law Department �-
Memorandum
p ATEU MPy
To: Chris Johnson, Council President, Council Members Rheault and Rossi
Chairman James Cichetti, Legislative Committee
Cc: Mayor Richard Cohen
From: Vince Gioscia
Date: October 28,2014
Subject: TOR-2014-5
Dear Council President Johnson,
I have reviewed the amended proposed Ordinance and still feel that it would subject the Town to
an unfair labor practice complaint. Therefore, I am not signing the TOR at this time.
1 have attached the current version of the TOR to this memorandum for reference.
nce ej'oscia
,
Vincent
t
' 1 a
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault and Robert Rossi)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt an
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
§49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. Municipal vehicles shall be utilized for official town business only.
No person shall use any municipal vehicle for their personal use, except the Mayor,
Police Chief, Fire Chief and Deputy Fire Chief when they are on call. Personal use shall
be defined as any use of a municipal vehicle for other than official town business.
Municipal vehicles shall only be driven by the individual to whom it has been assigned
and shall not be used outside of the town unless on official town business.
2. Marking of vehicles. All municipal vehicles, except for vehicles assigned to the Police
Department detective bureau, shall be appropriately marked with departmental or
town seals or appropriate lettering that is highly visible and identifiable as a municipal
vehicle. All municipal vehicles, except for vehicles assigned to the Police Department
detective bureau, shall have municipal license plates.
I Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a municipal vehicle shall
be permitted to take said vehicle to and from work:
A. Mayor;
B. Eire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work.
4. Parking in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
5. Effective date. This ordinance shall take effect upon its passage.
6. _Violations and penalties. The Mayor shall be charged with enforcing the provisions of
this section of the ordinance. Anyone found to be in violation of this ordinance shall be
subject to appropriate disciplinary action, up to and including termination from
employment.
DATED THIS OF 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.lohnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault, Robert Rossi and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt an
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS,the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
§49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. Municipal vehicles shall be utilized for official town business only.
No person shall use any municipal vehicle for their personal use. Municipal vehicles
shall only be driven by the individual to whom it has been assigned and shall not be used
outside of the town unless on official town business.
2. Marking of vehicles. All municipal vehicles, except for vehicles assigned to the Police
Department detective bureau, shall be appropriately marked with departmental or
town seals or appropriate lettering that is highly visible and identifiable as a municipal
vehicle. All municipal vehicles, except for vehicles assigned to the Police Department
detective bureau, shall have municipal license plates.
3. Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a municipal vehicle shall
be permitted to take said vehicle to and from work:
A. Mayor;
B. Fire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work.
4. Parkinp, in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
5. Effective date. This ordinance shall supersede all existing policies and/or guidelines
regarding the use of municipal vehicles, and shall take effect upon its passage.
6. Violations and penalties. The penalty for failing to comply with this Ordinance shall be
for each and every offense forfeit and pay a penalty of twenty-five dollars ($25.00) for
the first violation; fifty dollars ($50.00) for the second violation; and two hundred dollars
($200.00) for the third violation and each subsequent offense. Each day that a person is
in violation shall constitute a separate offense. This penalty is not intended to, in any
way, limit the applicability of the provisions of the noncriminal disposition procedures
set forth in Massachusetts General Laws.
DATED THIS OF 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
Agawam D.P.W. FO A, )3 F US I on
Activity Detail Report By Vehicle Y�� D
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Date Range From: 5/2/2014 12:00:00 PM To-, 7/29/2014 12:00:00 PM 3 �
Date Time Trans Site Driver Account Prod Pump MPG Odom Dist Misc Price 4ty Amoun!
Vehicle-'-' :91,12 ?` 9112
5J2r2014 13:30 0013 001 0021 0112 Reg 02-1 320 0 $1.000 11.100 511.1(
5/16/2014 09:19 0016 001 1476 0112 Reg 02-1 42.7 657 337 $1.000 7,900 S7.9(
5/29/2014 08:41 0009 001 1476 0112 Reg 03-1 X3316 964 307 $1.000 8.500 $8.5(
6/14/2014 16:53 0012 001 0021 0112 Reg 02-1 1062 98 $1.000 9.800 S9.8(
6/30/2014 15:07 0026 001 0021 0112 Reg ❑2-1 1500 438 $1.000 7.800 $7.8(
7/15/2014 08:59 0005 001 1921 0112 Reg 03-1 1836 0 $1.000 8.000 S8.0(
Card Trans: 6 Cost Per Mite: $0.045 1180 Miles @ 29.0 MPG Avg MPG: . 1180 Avg Price: $1.000 53.100 $53AOT
Grand otals: Trans: 6 ` / Aug ..000 53.100 415304E
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Printed on: Wednesday July 30,2014 Page 1 of
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Agawam D.P.W. C (2Otj U .0c
Activity Detail Repoc? By Vehicleir
.Date Range From:.7l1J2013 12:00:0C? PMTd: 10/18120i3 12:00:00 PM
Dale Time Trans Site Driver Account Prod Pump hIpG Odom [list Misc Price oty Amount
9112
7'14 2'y13 1 i:4G 000i 901 0021 0112 Reg 02 1 12,$ 39850 217 S1 000 17 000 a17.0G
N
o 7!N&Wt3 08 ma`s 0012 001 1921 0112 P,s9 03.1 137 400033 1$3 S1.000 13 400 St3.40
P. 5+20,Y201,24 09'13 0010 00.1 1221 0112 Reg 03.1 13.2 40225 1 W $1.000 14-SUU S 14.50
9?3i2013 10.44 0U1? 001 1$21 0112 Reg 03-1 14.6 40428 203 S1.000 13.90L= S13.50
9121!2013 10 41 0007 001 0421 0112 Reg 02-1 13.6 4G522 '94 S 1.00Q 14.30 S 1-1.30
1W-9f2C,13 1!'.1? 0009 001 147E C112 Reg 03-1 . 0.G 0 0 S1.000 12.300 S12.W
Card Trans: 6 g Per Mile: $0.087J 989 IAiies a[7 11.3 MPG Avg MPG: 11-3 9e9 Avg Price- $1.000 85.900 $85.90
Grand Totals: Trans: 6 85.900 5a&--Po—
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AGAWAM FUEL EFFICIENT VEHICLE POLICY
DEFINITIONS
Combined city and highway MPG (EPA Combined fuel economy): Combined Fuel Economy means the
fuel economy from driving a combination of 43%city and 57%highway miles and is calculated as follows:
=1/c(0.43/City MPG)+(0.57/(highway MPG))
Drive System: The manner in which mechanical power is directly transmitted from the drive shaft to the
wheels.The following codes are used in the drive field:
• AWD =All Wheel Drive: four-wheel drive automatically controlled by the vehicle powertrain system
• 4WD=4-Wheel Drive: driver selectable four-wheel drive with 2-wheel drive option
• 2WD= 2-Wheel Drive
Heavy-duty vehicle: A vehicle with a manufacturer's gross vehicle weight rating (GVWR) of more than
8,500 pounds.
POLICY STATEMENT
In an effort to reduce the Agawam's fuel consumption and energy costs the Mayor hereby orders
pursuant to his executive power in the Agawam Town Charter §3-2 this policy to purchase only fuel
efficient vehicles to meet this goal.
PURPOSE
To establish a requirement that the Agawam purchase only fuel efficient vehicles for municipal/school
use whenever such vehicles are commercially available and practicable.
APPLICABILITY
This policy applies to all divisions and departments of the Town of Agawam.
GUIDELINES
All departments / divisions shall purchase only fuel-efficient vehicles for municipal use whenever such
vehicles are commercially available and practicable. The Town of Agawam will maintain an annual
vehicle inventory for non-exempt vehicles and a plan for replacing these vehicles with vehicles that
meet, at a minimum, the fuel efficiency ratings contained in the most recent guidance for Criteria 4
published by the MA Department of Energy Resources' Green Communities Division. The fuel efficiency
ratings contained therein are based on the most recently published US Environmental Protection Agency
combined city and highway MPG ratings for vehicles.
This Green Communities' Guidance for Criteria 4 must be checked for updates prior to ordering new
vehicles.
Exemptions
• Heavy-duty vehicles. Examples include fire-trucks, ambulances, and some public works trucks that
meet the definition of Heavy-duty vehicle.
• Police cruisers, passenger vans and cargo vans are exempt from this criterion as fuel efficient models
are not currently available. However, we commit to purchasing fuel efficient police cruisers, passenger
vans and cargo vans when they become commercially available. Police and fire department
administrative vehicles are NOT exempt and must meet fuel efficient requirements.
Inventory
The following information shall be included in a vehicle inventory list and said list shall be updated on an
annual basis:
Model Make Model Year Driver Weight MPG Annual Total Fuel Vehicle
Year Purchased System Class Miles Consumption Function
Driven
NOTE: Departments/Divisions may use EPA combined MPG estimates or actual combined MPG.
FUEL EFFICIENT VEHICLE REPLACEMENT PLAN
Agawam vehicles will be replaced as they become obsolete. Under normal circumstances the criteria
used to determine which vehicles to-replace includes repair cost, safety, years in service, and greatest
need. Under this new plan non exempt,vehicles.will.be replaced with fuel efficient vehicles using the
same rubric. Under this policy any new vehicle purchased, not as a direct replacement of an existing
vehicle, will be fuel efficient.
The goal is to have the entire non-exempt vehicle fleet replaced with a fuel efficient fleet within ten
years:
QUESTIONS/ ENFORCEMENT
All other inquiries should be directed to Mayor's Office. This policy is enforced by the Mayor and/or his
designee(s).
POLICIES AND PROCEDURES GOVERNING TOWN VEHICLES AND TOWN
MOTOR POOL VEHICLES
Operational Definition:
For purposes of this policy, a Town vehicle is any motor vehicle that is registered,
owned, loaned, leased, rented, donated or provided to the Town. The townwide
motor pool is directed through the Mayor's Office.
1.1 Motor Vehicle license
No employee shall operate a Town vehicle as defined above, or a vehicle provided to
the Town under contact, or a privately owned vehicle on official business, without a
valid Massachusetts driver's license in his/her possession for the type and class
vehicle the employee will be operating. Also, an employee is solely responsible for
keeping his/her license valid and current with the right to operate a motor vehicle.
l
An employee, who operates a Town vehicle as part of his/her official job duties,
must inform his/her supervisor immediately of revocation or suspension of his/her
driver's license, including any reduction in classification of his/her Commercial
Drivers License (CDL). An employee's failure to do so may be just cause for
disciplinary action up to and including discharge.
1.2 Driving performance
All employees operating a Town vehicle of any kind on Town business shall do so in
strict compliance with applicable laws and regulations and use defensive driving
techniques. Vehicles are to be driven in a manner such as to create a favorable
impression to the public. All drivers of Town vehicles are responsible for the proper
care and handling of those vehicles while in their custody and use.
1.3 Use of Safety Belt
All municipal personnel are required to wear safety belts while operating or riding
in municipal vehicles or personal vehicles, while engaged in town related business.
Town management insists that all municipal employees comply with this policy,
including police, fire and school department personnel.
1.4 Parking/Traffic tickets - violations
Operators must obey all state and local traffic and parking laws and regulations.
Any administrative legal action resulting from such violations, ( i.e. parking or
speeding tickets), is the personal responsibility of the affected operator. Any
individual, who is found in violation of these laws, may risk loss of Town vehicle
driving privileges for a period to be determined by the Mayor.
1.5 Alcohol and controlled substances (drugs)
No employee shall be permitted to operate a Town vehicle under the influence of
alcohol, controlled substances (drugs), intoxicants, or legally prescribed medications
that impair the ability of the driver to properly and/or legally operate a motor
vehicle. No employee will operate a town vehicle with alcoholic beverages or
controlled substances in, on or aboard said vehicle. Any employee arrested for
operating a Town vehicle under the influence of alcohol or any illegal substance
shall have all privileges to operate a Town vehicle suspended after disposition of
any arrest and/or legal or administrative action, the employee may have his/her
privilege to drive a Town vehicle permanently terminated. In addition, the
employee shall be subject to disciplinary action up to and including termination.
Commercial motor vehicle drivers are subject to the specific requirements for CDL
(Commercial Drivers License) operators under the U.S. Department of
Transportation Rule Part 383 Controlled Substances and Alcohol Use and Testing.
1.6 Motor Vehicle Usage
Town vehicles may be permanently assigned by the Mayor to those departments
which have demonstrated a continuing need for them. Additional vehicles are
maintained in a motor pool for use by individual employees, as needed.
Employees required to travel by automobile in the course of their normal daily work
may be assigned a Town car for their use while on business. All other employees
needing transportation for Town business may use automobiles assigned to their
department or those drawn from the motor pool. When no Town vehicles are
available, employees may use their own car for business purposes, but only with the
prior approval of their department head.
Employees are not permitted to use Town vehicles for non-business purposes.
Violations will subject the employee to discipline.
Employees who use their personal car for business purposes will receive a mileage
allowance of thirty cents ($.30) per mile for such usage. This allowance is to cover
the cost of gasoline, oil, depreciation, and insurance. All employees driving on
Town business may claim reimbursement for parking fees and tolls actually
incurred, and employees driving their personal vehicle may claim reimbursement
for gasoline and other expenses directly incurred for business purposes. Claims for
mileage allowance and reimbursement must be approved by the employee's
J
department head and submitted to the Personnel Director for approval and
payment. Any such allowance or reimbursement in excess of$100.00 must be
submitted and approved by the Mayor.
Employees using Town vehicles are responsible for proper maintenance and must
report any malfunctions or maintenance requirements to the supervisor of the
motor pool. Permanently assigned vehicles must be maintained by the departments
assigned to as scheduled.
Employees must report to the supervisor of the motor pool any accident, regardless
of the extent of the damage or the lack of injuries, involving Town vehicles or a
personal vehicle used on Town business. Such reports must be made as soon as
possible but no later than forty-eight hours of the accident. Employees are expected
to cooperate fully with the authorities in the event of an accident.
Time spent by an employee in driving a Town or personnel vehicle on Town
business during normal working hours are to be considered hours worked for pay
purposes.
1.7 Personal Communications Devices
A personal communication device is defined as any communication device that is
not supplied by the Town. This includes, but is not limited to, portable phones
(cellular phones and digital phones), scanners, portable radios. All such devices
should be set to the off position while the employee is performing his or her duties.
The Town expects all employees to perform their duties in a way that provides the
safest transportation for operators, passengers and the public. Employees are not
allowed to use personal communication devices while operating a Town vehicle.
Therefore, an operator of a Town vehicle shall pull into a parking lot or other safe
location, when using a handheld cellular or mobile telephone.
1.8 Radar/laser detectors
Except for public safety personnel, the installation and use of radar/laser detectors
in all vehicles used for official business is forbidden.
1.9 Smoking by operators and passengers
No smoking is allowed in a Town vehicle by operators or passengers.
1.10 Authorized passengers
An employee shall not transport anyone other than a Town employee in a Town
vehicle.
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault, Robert Rossi and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt an
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS,the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
§49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. Municipal vehicles shall be utilized for official town business only.
No person shall use any municipal vehicle for their personal use. Municipal vehicles
shall only be driven by the individual to whom it has been assigned and shall not be used
outside of the town unless on official town business.
2. Marking of vehicles. All municipal vehicles, except for vehicles assigned to the Police
Department detective bureau, shall be appropriately marked with departmental or
town seals or appropriate lettering that is highly visible and identifiable as a municipal
vehicle. All municipal vehicles, except for vehicles assigned to the Police Department
detective bureau, shall have municipal license plates.
3. Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a municipal vehicle shall
be permitted to take said vehicle to and from work:
A. Mayor;
B. Fire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work.
4. Parking in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
5. Effective date. This ordinance shall supersede all existing policies and/or guidelines
regarding the use of municipal vehicles, and shall take effect upon its passage.
6. Violations and penalties. The penalty for failing to comply with this Ordinance shall be
for each and every offense forfeit and pay a penalty of twenty-five dollars ($25.00) for
the first violation; fifty dollars ($50.00) for the second violation; and two hundred dollars
($200.00) for the third violation and each subsequent offense. Each day that a person is
in violation shall constitute a separate offense. This penalty is not intended to, in any
way, limit the applicability of the provisions of the noncriminal disposition procedures
set forth in Massachusetts General Laws.
DATED THIS OF 02014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia,Solicitor
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES = C)
z
(Sponsored by Councilors Donald Rheault, Robert Rossi and Anthony SuffritQ.- Q
r y
-0 3 3'
'>CD
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt 4h
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS,the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. Municipal vehicles shall be utilized for official town business only.
No person shall use any municipal vehicle for their personal use. Municipal vehicles
shall only be driven by the individual to whom it has been assigned and shall not be used
outside of the town unless on official town business.
2. Marking of-vehicles. All municipal vehicles, except for vehicles assigned to the Police
Department detective bureau, shall be appropriately marked with departmental or
town seals or appropriate lettering that is highly visible and identifiable as a municipal
vehicle. All municipal vehicles, except for vehicles assigned to the Police Department
detective bureau, shall have municipal license plates.
3. Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a municipal vehicle shall
be permitted to take said vehicle to and from work:
A. Mayor;
B. Fire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work.
4. Parking in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
5. Effective date. This ordinance shall supersede all existing policies and/or guidelines
regarding the use of municipal vehicles, and shall take effect upon its passage.
6. Violations and penalties. The penalty for failing to comply with this Ordinance shall be
for each and every offense forfeit and pay a penalty of twenty-five dollars ($25.00) for
the first violation; fifty dollars ($50.00) for the second violation; and two hundred dollars
($200.00) for the third violation and each subsequent offense. Each day that a person is
in violation shall constitute a separate offense. This penalty is not intended to, in any
way, limit the applicability of the provisions of the noncriminal disposition procedures
set forth in Massachusetts General Laws.
DATED THIS OF , 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia,Solicitor
---r
- E�-�
Town of Agawam
Law Department
Vincent F.Gioscia,City Solicitor
Patrick M.Toney,Associate Solicitor
September 10, 2014
Agawam City Council
36 Main Street
Agawam, MA 01001
Re: Vehicle Use Ordinance
TOR-2014-5
Dear Councilors:
As you are aware currently pending before you is TOR-2014-5 entitled "An Ordinance to
Amend the Code of the Town of Agawam to Add Section 49-9 Entitled Use of Municipal
Vehicles." I received a message yesterday that Councilor Rossi came to the Law
Department requesting a "yes or no" answer as to the form and legality of the proposed
Ordinance. The message further states that he did not desire any "newspaper clippings
or opinions."
I would be remiss in my duty to give a verbal-"yes or no" on legislation of this nature
considering the consequences of Its enactment. Furthermore, as the Council routinely
asks for "back-up documentation," and as I have been working for some time on a
memorandum analyzing the most current version of the Ordinance, I am forwarding the
4ce
and to you
,
. ioscia
36 Main Street,Agawam,MA 01001 Tel: (413) 786-0400 ext. 8281 Fax: (413) 786-9927
Town of Agawam Law Department '?
Memorandum
To: Agawam City Council
Cc: Mayor Cohen
From: Vincent Gioscia
Date: September 9, 2014
Subject: TOR-2014-5
The Law Department has reviewed the second version of the proposed vehicle use ordinance
entitled "An Ordinance to Amend the Code of the Town of Agawam to Add Section 49-9 Entitled Use of
Municipal Vehicles."
The ordinance being reviewed is attached to this memorandum for reference. I have also
forwarded the proposed ordinance to Labor Counsel for his review as it will substantially impact certain
CBAs and personnel matters and am attaching his opinion in which I concur.
Pursuant to a request dated August 19, 2014 Council Suffriti has asked that his name be
removed as a sponsor of the proposed legislation. (See attached email)
The ordinance generally speaking is poorly written. The indexing system in the prior version has
been abandoned for an unknown reason and this version bears no resemblance to the prior version. I
present some of the following examples of the deficiencies with the ordinance.
For the purpose of this ordinance, the Mayor, the Chief of
Police, the Fire Chief, Deputy Fire Chief, the Emergency Management
Coordinator and the Superintendent of Public Works are considered to
serve in a 24 hour capacity and are entitled to have unrestricted use of a
city owned vehicle and only while acting in such an official capacity and
only while acting on official city business; under no circumstances shall a
city owned vehicle be used for private or personal use. Take home
purposes are for to and from the work place only. Proposed Ordinance
TOR-2014-5
This section is contradictory. it states that the "Mayor, the Chief of Police, the Fire Chief,
Deputy Fire Chief, the Emergency Management Coordinator and the Superintendent of Public Works"
shall have "unrestricted" use of a city vehicle and then proceeds in the same sentence to restrict the use
of the vehicle.This raises again the statement from my prior memo of July 29, 2014.
"There is a substantial public safety issue that arises under section one of the proposed
Ordinance.The ordinance may create liability for the Town as the Fire Chief and Chief of Police.would no
longer be allowed to use the vehicle for"personal use." All public safety personnel as Well as the Mayor
are on "duty" twenty-four hours a day and the ordinance would forbid the Fire Chief and Police Chief
from using the vehicle at certain times; requiring them to return to the vehicles location to retrieve it as
the necessary communications equipment and job specific equipment is located in the Town vehicle.
Such a requirement would add additional time to a response by the municipal official." Law Department
Memorandum dated July 29, 2014.
The Fire Chief and the Chief of Police are defined as first responders pursuant to 105 CMR
171.000: Massachusetts First Responder Training.
First Responder means a member of any of the following entities: a
police or fire department; state police participating in highway patrol;
an emergency reserve unit of a volunteer fire department or fire
protection district, and persons appointed permanent or temporary
lifeguards by the Commonwealth or any of its political subdivisions. A
first responder shall not mean a police officer, firefighter or person
engaged in police and fire work whose duties are primarily clerical or
administrative. See also M.G.L. c. 6A s. 18L
The Ordinance further goes on to state:
No city employee shall be assigned a city owned vehicle to
commute back and forth to work, except those employees as listed in
section (C-1) above without the express written consent of the
department head and by approval of the Mayor. Proposed Ordinance
TOR-2014-5
I am unable to discern from the proposed ordinance as presented what "section C-1" refers to. I
have reviewed the current Section 49 of the Town Code and find no relevant reference to which this
ordinance would apply.
"This ordinance shall supersede all existing policies and/or guidelines regarding the use of
municipal vehicles, and shall take effect immediately upon its passage." Proposed Ordinance TOR-2014-
5
This ordinance "supersedes all existing policy and/or guidelines" may create tax implications as
the vehicles assigned to various municipal employees may remove them from the "fringe befit"category
as stated in various IRS publications. The use of vehicles may be construed as part of the employee's
compensation. This issue is beyond the scope of this memorandum. Furthermore, pursuant to a
Memorandum of Understanding executed between the Town of Agawam and the Administrative Union
the Fire Chief and Police Chief are allowed to use the municipal vehicles assign to them for personal use.
(See attached Memorandum of Understanding dated January 9, 2014.)
A claim would most certainly be filed by the Administrative Union as the Proposed Ordinance
TOR-2014-5, if adopted, may constitute a change in working conditions.
Additionally the Proposed Ordinance TOR-2014-5 provides:
This policy is intended to provide a basic framework governing
the use of city owned vehicles in the Town of Agawam, and, as such,
cannot contain procedures governing every situation that might arise.
Employees seeking clarification of or exemption from the procedures of
this policy should contact the office of the Mayor who will provide such
clarification and may authorize exceptions to the policy under mitigating
circumstances." Proposed Ordinance TOR-2014-5
This paragraph creates vagueness as to the intent of the Ordinance. The term "basic
framework" is more conducive to an executive policy than legislation.
"City owned vehicles shall not be used for private or personal business
except for incidental stops during travel to and from the work place." Proposed
Ordinance TOR-2014-5
And in the next section of the ordinance, "Employees who drive
company vehicles shall not, at any time, use company vehicles for personal
reasons. This policy shall be strictly enforced with disciplinary action, up to and
including termination. Employees are restricted from personal use of any kind
..." Proposed Ordinance TOR-2014-5
These sections—as well as many other related clauses—are contradictory beyond the point of
any reconciliation. It begins by restricting any private or personal use of city vehicles, but then creates a
vague exception for "incidental stops during travel to and from the work place" — which appears to
allow almost any stop at any time the employee is using a city vehicle. The Ordinance then goes on to
propose strict enforcement against any personal use,with discipline up to and including termination,for
all employees, including those who were designated to be serving in a 24-hour capacity. This
discrepancy would make the ordinance impossible to enforce.
The ordinance also establishes a definition for "take home purposes", although there does not
appear to be any other use of the phrase in the ordinance, making that section extraneous; especially
considering the same section of the ordinance forbids any use of city vehicles for commuting.
Therefore, at this time I am not endorsing the proposed ordinance as to form and legality and
am forwarding a copy of this memorandum to the Clerk of the City Council.
Respectfully Submitted,
Vincent Gioscia
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault and Robert Rossi)
WHEREAS,the Agawam. City Council believes that the Town of Agawam should adopt
an ordinance on the use of municipal vehicles to set proper policy on the use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS,the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which
would enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS, the Agawam City Council believes the adoption of the following ordinance
on use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, T14E AGAWAIVI CITY COUNCIL hereby resolves, ordains and
enacts the following Section 49-9 to the Code of the Town of Agawam:
STATEMENT OF PURPOSE
The purpose of this policy is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicles)") in the
course of providing city services and conducting city business. This policy is intended to
ensure the safety and wellbeing of city employees, to facilitate the efficient and effective
use of city resources, to minimize the city's exposure to liability, to monitor the use of
city owned vehicles, and to comply with Internal Revenue Service regulations relating to
city vehicle usage.
GENERAL PROVISIONS
City vehicles are to be utilized exclusively for city business and matters relating to the
operation of the services provided by the city to the community. This policy covers all
city vehicles and/or vehicles leased by the city.
Any violations of this section may result in disciplinary action including, but not limited
to, verbal warning, written reprimand, time off without pay (suspension), loss of use of
city vehicles, and/or termination.
All employees assigned a city vehicle are required to sign a statement indicating that
they have read and will comply with this section.
ADMINISTRATION
The Mayor or his designee is the source of authority for the administration and control
of this ordinance.
This ordinance shall supersede all existing policies and/or guidelines regarding the use of
municipal vehicles, and shall take effect immediately upon its passage.
ELIGIBILITY
For the purpose of this ordinance, the Mayor, the Chief of Police, the Fire Chief, Deputy
Fire Chief, the Emergency Management Coordinator and the Superintendent of Public
Works are considered to serve in a 24 hour capacity and are entitled to have unrestricted
use of a city vehicle and only while acting in such an official capacity and only while
acting on official city business; under no circumstances shall a city vehicle be used for
private or personal use. Take home purposes are for to and from the work place only.
An employee required to drive in the course of their regular duties and while on city
business may be assigned a city vehicle during working hours only, subject to
availability.
No city employee shall be assigned a city vehicle to commute back and forth to work,
except those employees as listed in section (C-1) above without the express written
consent of the Department Head and by approval of the Mayor.
RESTRICTIONS ON USE
City vehicles shall be used only in the performance of city business, including'meetings,
conferences or other business related events. City vehicles shall not be used for private or
personal business except for incidental stops during travel to and from the work place. Personnel
are prohibited from transporting personal property.
City vehicles will not be used to transport family members or other passengers not engaged in
city business, without prior approval.
Except for and during the performance of official city business, no alcohol or firearms shall be
carried in a city vehicle without express permission.
An employee who is operating a city vehicle will be required to pay for any moving motor
vehicle violations and/or parking tickets for which he/she is responsible.
Should an employee who is assigned a city vehicle on a 24 hour basis, be absent for more than
three (3) days the city vehicle shall be returned to the work place for the duration of the
employee's absence.
All city vehicles shall bear current official municipal license plates assigned to each vehicle as
issued by the Commonwealth of Massachusetts, Registry of Motor vehicles. Exception: Any city
vehicles assigned exclusively to the Police Detective Bureau that require special purpose plates
shall be assigned to each specific vehicle in accordance with the laws of the Commonwealth of
Massachusetts and the Registry of Motor Vehicles.
All city vehicles shall bear the Town of Agawam Seal permanently affixed and conspicuously
displaying the markings of the city department to which the vehicles are assigned.
All city- Police and Fire vehicles and apparatus are required to have conspicuously displayed
markings with appropriate Town of Agawam seals and/or decals, as well as appropriate
emergency lighting to include an emergency light bar where required; exception, any vehicle
exclusively assigned to the police detective bureau.
PERSONAL USE
Employees who drive city vehicles shall not, at any time, use city vehicles for personal reasons.
This policy shall be strictly enforced with disciplinary action, up to and including termination.
Employees are restricted from personal use of any kind, including, but not limited to, the
following;
• Using city vehicles to run personal errands on or off the clock.
• Transporting non-employees in city vehicles, including family members
• Allowing non-employees to use city vehicles for any reason.
v
SPECIAL CIRCUMSTANCES
This policy is intended to provide a basic framework governing the use of city vehicles in the
Town of Agawam, and, as such, cannot contain procedures governing every situation that might
arise. Employees seeking clarification of or exemption from the procedures of this policy should
contact the Office of the Mayor who will provide such clarification and may authorize
exceptions to the policy under mitigating circumstances.
DATED THIS OF , 2014.
PER ORDER OF TIIE AGAWAM CITY COUNCIL
Christopher C. Johnson,President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
Vincent Gloscla
From: bartzara bard<889rd®agawem.ma.us>
Sent: Tuesday,August 19.201410:12 AM
To: Vince Gosde
Subject: Vehicle Use Ordinance
Good Morning Vince[
Could you please remove Councilor Anthony Suffritl"'s name as a co-sponsor of TOR-2014-5? Thank
you!
Make it a great dayt
•"f n
SWOT �aLG
Barbua A.Btld
Admin irwivr Aaslatant
AQrwam Cit,Council
36 Win 5ticet
Aguwan,MA.01MI
(413)726.9716
({13)726.9717 f<:
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Dupers Law Offices
9.t Korth Flnt Site..t,suite 307
w:sttt.'.J,ht't:,ric:husutts 01085
T41(413)562-i300 Fax.(413)5,C2-3301
fi.rnand j.1_vuperh Fsq.
Rt!<n;ilf.Dupere.E*,j.
Ad:nt,j.11uperv,tea.
Aujust 25,2014
Vincent Gioscia
Solicitor
9 own of Agawam
36 Alma St.
Atwam,MA 0 100 1
lb:-. ;kn(ordinance:u Amend tlw Cade ufthc Town of`:.gaaarn to Add Section 49.9
Fntit!ui Use nr 1 unicip;d Vebic"
Dc.ir Snlichor Q;oo6..
li i,.my under-;andin;;that you h)v;;requ_stud my Ic,ral opinion repardin, vvh:.dn r Lbor
relation.,.issuer.may,:ri.c if the propoo,:d ntvinanc,:ref•rt-accd ah!tvi,is implcirvntc�b) the
Council. Based wwon mp rcvic%t of hc;Urdirunc_,it is my ;.hal opinion that the Ordivanc,
could he chalicn.-ed by th,burr vninn units under rac pro:i-tions of the eoticetiv%bapinino
agr.em,t;te and or tic:requirement,of N1.0 ..c. I SU.
Ii is m) undvr%twding'.;,at certain loaax employ-.cs ha►e bvvn entitlCd to tit:tot:n
v.:hicics for matt),yarn. S id u-e anc:t;t�n quir:munts goverr+in]; sic;us .ue currently dictated
b) the LnLt uage contained in the cnl1.ctiv.,hngwininr.a •ezm.:nts as,..ell a:.p zt practice, lithe
evetit that'ho prvvi,iotu ox'!hv Ordinance con:ict pith the collccti., bar_]Lining ageetnentc
andor past nrtctice o+Lrtidte additional matric.ione and/or r;quirr;ments,tb,:cn;teetiv:
baryainin�tmits r•:ill likely ei>ft&nr t,said Urdinanw. c�Flkouri bt Elkouri,[p itr tiun.
War g,5 Edition,p.767('-Moreover,nev:or ch:ut,;ed plant rt!Ls that curtail =ploy ee
privilc-,-;%uppartod by long-cst fl%shed past mastic,;rna) 1v sttbjcci to clt:,cll03r1;.'). Further,in
tho uvent That the Town;:,tempts to dis,:iplijw crnplo,ea:a base]uron tiia requirements of tite
Ordinance,th:,hirgaining units will also like]) litig;.tc tha issue.
It i�;my opir.ion that the Town would wM tv determine::hut the cailectivu h trbainins
agrcam:nts and/or pas<practice curr.:ntl,-rgoirc r,Varding usage or tou n Arehiclics. 'fk.:n,s�id
rcquimm'-lits would nt.,,d to be corn nancd a ith the Nquiremunts contained in the Ordinance. If
any of the requirern,;ntc vary to)m the current rc uir meets,lhk:Town n would be r quircd to
negotiate N%ith the,colleztiia bargaining units in ord,;r to implur iv the r:auir4ments;n a l,;pally
acceptable manner. This is particularly important due to the provisions specifying that discipline
could occur due to a violation of the requirements contained in the Ordinance.
Sincerely,
Russell J.Dupere,Esq.
2
AGAWAM FIRE DEPARTMENT
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K-me---r,th4("w, jfAp-.--.a:n x.J the
c,m-. knov:leu e,I&T-nut'::b,an ru viCIxivns o:existing,I chide usu policy that would cr,ml:
tac reed for this pri.pes.:i ordi-mnc..i gym:xag.:rncvr.;-kn o9'the Council to contact my kpfiw,to
disecss Ct Ns or liwinc:on public:afuly,fiP_C+;iitur rail„1 and Grr
de iarim; t on.viAon-To.iat,,no:u.;n.b.:r of*he coancii u is canii^Ad rip wtke rzgx-din-i:•ti::
rr.:tn.;r.Tl;i Ica&T.,w iu bJi:v_that uninfcrx.-;,!&-Act:s arc: m code :nd a";,umptiam
rclk;d up-a;j a, -t urdirmev 1-mguaac:.
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R A_;_
' l ti'-siroi'S;
�ON
MEMORANDUMOFPEP—EMANDLW
HY AM B AWAM
AI+II]THE AGAWAM ARb UflT Ea!ATIVS INQN
The Town of Agawam(hmxinafter mef rind to as"'l'own'j and the Agawam
Adminishative Union(hereinafter referred to as"Union")hereby agree to the following tams,
conditions.and undamtandings.
l. The Town and Union are parties to a col lective bargaining asmmn rit.
2: The Town and Union agree to add to the existing Article 27 of the oolloctive brining
agre=ent a second paragrtrpb to read as follows: 'The Bmploym shall provide a police
vehicle fur use by the Chief of Police and a fire vehicle for use by the Chief of the Fire
Department and pay for all attendant operating and maintenance expenses and itts wsace.
Said vehicles are to be used by the Cbiefa in ommectiea with the pe frnmmce of their
duties as Chief of Police and Chief of$re Fire Dgmlment end fir theirprvfwaional
growth and development. The vehicles maybe used by the Chiefs for personal masons,
scree the Chiefs arc"on-mill in the event of tmtrgrncies. Any tax and retirement
contributions due as a result of'the use of the vehicles ahall be the responsibility of the
ChiefL"
3. The Town and Union agree to add to the atisting Article 27 of the collective bargaining
agreement a third paragraph to Lead as follows. '"[he cnaent Police Chief will continue
to receive full biaef'its of the Quinn Bill(i.e..testy present(30%))during the tern of his
employment regardless of the amount of state contribution,if any. Any future Police
Chief will also receive the benefit at their current Quin Bill percentage provided tbey
were receiving the Quinn Bill prior to bcc oa3ing the Police ChieE"
4. The Town agrees that the provision listed above will be effective immediately upon
execution of this Memorandten of Und aatanding.
S. This Memorandum of Understanding will be auselbed to the parties'collective bargaining
agreentant,and will automatically be incorporatod into a sucoeoor agreemcm
6. This Memorandum of UndemW ding is not precedent setting for any some or similar
cir urnstanae in the firnnro.
7. There are no other agreements,either verbal or written,between the parties to this
Memorandum of Understanding.
FOR IM TOWN OF AGAWAM FOR THE AGAWAM ADMINISTRATIVE
UM
Dated:_ I Q �l u n_:Z�ry, Dated-
lot
Agawam Massa ch usett
r Office of the Mayor
36 Main Street, Agawam, MA 01001
mayor@agawam.ma.us
Richard A Cohen Tel: 413-786-4520
Mayor Fax:413-786-9927
July 30, 2014
Dear City Councilors:
I have read TOR 2014-5 "An Ordinance to Amend the Code of The Town of Agawam to Add Section 49-9
Entitled use of Municipal Vehicles."
While some Agawam City Councilors "believe" that the Town of Agawam should adopt this ordinance, I
find it completely unnecessary. Currently,the Town has a proper vehicle use policy in place. See attached.
Additionally, the resolution states that it desires to "eliminate confusion and unpredictable
consequences and to reduce liability exposure."There has been no confusion among the employees of the Town
regarding the use of municipal vehicles. After polling various department heads and to my recollection I am not
aware of any misuse and/or abuse regarding the use of municipal vehicles. Any misuse would be handled
through the procedures established through the CBAs addressing discipline.
The Resolution seeks to "reduce liability exposure," and may in fact, create liability exposure in the form
of grievances and other legal actions filed under the numerous collective bargaining agreements currently in
effect. Further liability may arise if, for example the Police Chief, Fire Chief, Mayor or Emergency Management
Director, and DPW Superintendent were not allowed to use the vehicle at their discretion. The vehicles used by
employees who have them permanently assigned sometimes require special equipment or.communications
equipment stored in the vehicle. There would be a significant delay in response time if the employee had to
return to where the vehicle was garaged to retrieve it before responding. I myself have been asked to view
storm damage or respond during "off hours" on numerous occasions while attending functions. This is the very
reason the vehicle is to be used at the employee's discretion, as has been the practice for prior Mayors and
Town Managers.
Employees assigned a municipal vehicle on a permanent basis must comply with IRS Regulations
regarding the use of the vehicle and must pay income tax under the "fringe benefit" rule established by the IRS.
The use of these vehicles is therefore considered a potential part of their compensation as shown on IRS form
W-2.
My administration has taken substantive steps to reduce potential liability as well as regulate the use of
municipal vehicles; for example recently all DPW vehicles have been equipped with global positioning systems
Page 2 of 2
which allow the DPW Superintendent to track, in real time, the location of vehicles in the DPW fleet. Also, there
has been a long standing policy as to who may use a municipal vehicle, for example certain employees are
assigned a vehicle on a permanent basis, while others must sign out a "pool car" at the Mayor's Office.
Furthermore,there are procedures in place to track the fueling of municipal vehicles via a card system located at
the Municipal Annex and managed by the DPW Superintendent and the Inspector of Buildings, as a cost saving
measure, is no longer allowed to take a Town Vehicle home.
Recently, there was confusion on the part of some City Councilors regarding the purchase of new
vehicles. First, I would emphasize, the purchase of these new vehicles were made without the use of tax dollars.
Second,there were no "personal" vehicles purchased. All municipal vehicles owned by the Town of Agawam are
registered with the Massachusetts Department of Transportation as required by law, even those vehicles
permanently assigned to a particular employee. In addition, all vehicles purchased were done under the green
community policy, which regulates the purchase of new vehicles. As a result fuel consumption has been greatly
reduced. Currently, the Town has eight hybrid vehicles purchased under the "Fuel Efficiency Purchase Policy."
As a result the Town consumes 310 gallons of fuel less per year. Stated another way, approximately $1,008.00
per hybrid, per year was saved. Also, the Town saves in maintenance costs. A non-hybrid vehicle requires
service three times per year while hybrid vehicles only require one annual maintenance. A comparison over a
three and half month period shows that significant savings for the hybrid versus the non-hybrid vehicles. The
2004 Crown Victoria average was 11.3 miles per gallon, while the 2014 hybrid average miles per gallon was 34.0.
The cost of fuel was lowered from $85.90 to $53.10. The cost per mile was decreased from $0.087 to$0.045.
Lastly, the Mayor's prior vehicle was ten years old and had less than 44,000 miles on it. It was
essentially an eight cylinder "police car". I am confident that the Agawam Police Department can better utilize
this asset for "police work." Therefore, I purchased a hybrid vehicle for the Mayor's Office, in accordance with
the Agawam Energy Commissions Fuel Efficient Vehicle Policy, and assigned the old car to the Agawam Police
Department eliminating the need to purchase another police vehicle.
In closing, I wish to caution the Council that it is exceeding its legislative authority as outlined in section
2-4 of the Agawam Town Charter. As Mayor, I am always willing and ready to work with any council person that
feels we need to update our Vehicle Use Policy and/or any polity for that matter. All policies are reviewed for
efficiency and effectiveness and are in line with collective bargaining agreements.
Respectfully,
ZZ,
Richard A Cohen
Mayor
Town of Agawam, Office of the Mayor
36 Main Street, Agawam, MA
Tel:413-786-4520 Fax: 413-786-9927
If AG
Town of Agawam Law Department
Memorandum
A7 n MP
To: Mayor Richard Cohen
From: Vincent Gioscia
Date: July 29, 2014
Subject: TOR-2014-5 f
The Law Department has reviewed the proposed vehicle use ordinance entitled "An Ordinance to
Amend the Code of the Town of Agawam to Add Section 49-9 Entitled Use of Municipal
Vehicles."
The ordinance being reviewed is attached to this memorandum for reference. I have also
forwarded the proposed ordinance to Labor Counsel for his review as it will substantially impact
certain CBAs and personnel matters.
1. The Ordinance does not identify an enforcement authority. That is, who is responsible for
investigation and enforcement of fines and other provisions indicated in section six of the
ordinance. For example, section 121-2 of the Code of the Town of Agawam charges-the Police
Department with enforcing the Noise Ordinance and section 149-6 which charges the Board of
Health with enforcement of the ordinance regulating smoking in public places. This failure to
define the "department" or "individual" charged with the enforcement may render the Ordinance
unenforceable due to a statutory vagueness as to who would be the proper enforcer of the
ordinance.
The City Council in my opinion cannot be the enforcing agent as they are the legislative body
and the Town Charter charges the Executive Branch, i.e. the Mayor with enforcement of
Ordinances and as is past practice the establishment of"policy" has historically fallen under the
jurisdiction of the executive branch.
The executive powers of the town shall be vested solely in the mayor, and
may be exercised by him either personally or through the several town
agencies under his general supervision and control. The mayor shall cause
the charter, the laws, ordinances and orders for the government of the
town to be enforced, and shall cause a record of all his official acts to be
kept. Section 3-2 Agawam town Charter. Emphasis added.
2. Section six entitled "Violations and Penalties" seems excessive. Personnel matters such as
this are dealt with through the disciplinary process. Again, Section six will most likely trigger
grievances as they may be construed as a violation of CBAs and may constitute a change in
working conditions. Labor Counsel has suggested changing section six. I concur in his opinion
and that Section six should be changed I would suggest the following:
"Anyone found to be in violation of this policy shall be subject to
disciplinary action up to and including termination from employment."
Furthermore, this.would solve the enforcement problem as the discipline
procedures established by the various CBAs would be followed should the need
for disipline be required.
3. There is a substantial public safety issue that arises under section one of the proposed
Ordinance. The ordinance may create liability for the Town as the Fire Chief and Chief of Police
would no longer be allowed to use the vehicle for"personal use." All public safety personnel as
well as the Mayor are on"duty" twenty-four hours a day and the ordinance would forbid the Fire
Chief and Police Chief from using the vehicle at certain times; requiring them to return to the
vehicles location to retrieve it as the necessary communications equipment and job specific
equipment is located in the Town vehicle. Such a requirement would add additional time to a
response by the municipal official.
4. There is no definition of"personal use" in the proposed ordinance. Should the ordinance be
the subject of litigation then the "Courts must ascertain the intent of a statute from all its parts
and from the subject matter to which it relates, and must interpret the statute so as to render the
legislation effective, consonant with sound reason and common sense. See ChampiAny v.
Commonwealth, 422 Mass. 249 , 251 (1996); Pentucket Manor Chronic Hos., Inc. v. Rate
Setting Comm'n 394 Mass. 233 , 240 (1985). Words that are not defined in a statute should be
given their usual and accepted meanings, provided that those meanings are consistent with the
statutory purpose. See Commonwealth v_. Zone Book Inc.,, 372 Mass. 366 , 369 (1977); Kemble
v. Metropolitan Dist_Comm'n, 49 Mass. App. Ct. 165 , 166 (2000).
5. Section five stating that this ordinance "supersedes all existing policy and/or guidelines"may
create tax implications as the vehicles assigned to various municipal employees may remove
them from the "fringe befit" category as stated in various IRS publications. The use of vehicles
may be construed as part of the employee's compensation. This issue is beyond the scope of this
memorandum.
Therefore, at this time I am not endorsing the proposed ordinance as to form and legality and am
forwarding a copy f this memorandum to the Clerk of the City Council.
Re ec lly Su itted,
G '
Vincent 'oscia
- is VVS1
TOR-2014-5
AN ORDINANCE TO AMEND THE CODE OF
THE TOWN OF AGAWAM TO ADD SECTION 49-9
ENTITLED USE OF MUNICIPAL VEHICLES
(Sponsored by Councilors Donald Rheault, Robert Rossi and Anthony Suffriti)
WHEREAS, the Agawam City Council believes that the Town of Agawam should adopt an
ordinance on the use of municipal vehicles to set proper policy on the use of municipal vehicles;
and
WHEREAS, the Agawam City Council believes it is necessary to establish a legislative
framework for the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to eliminate confusion and unpredictable
consequences and to reduce liability exposure regarding the use of municipal vehicles; and
WHEREAS, the Agawam City Council desires to create adopt an ordinance which would
enhance fiscal responsibility, as well as, the more efficient and effective use of municipal
vehicles; and
WHEREAS, the Agawam City Council believes that the following ordinance on use of
municipal vehicles will substantially reduce fuel consumption costs incurred by our community;
and
WHEREAS,the Agawam City Council believes the adoption of the following ordinance on
use of municipal vehicles is in the best interests of the Town of Agawam; and
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves, ordains and enacts the
following Section 49-9 to the Code of the Town of Agawam:
§49-9 USE OF MUNICIPAL VEHICLES
1. Restrictions on use. No person shall use any municipal vehicles for their personal use.
Said vehicle shall only be driven by the individual to whom it has been assigned and shall
not be used outside of the town unless on official town business.
2. Marking of vehicles. All town vehicles, except for certain Police Department vehicles as
designated by the Mayor, shall be appropriately marked with departmental or town
seals or appropriate lettering that is highly visible and identifiable as a municipal vehicle.
3. Taking vehicles to and from work. Notwithstanding the foregoing, the following
department heads and/or employees who have been assigned a town vehicle shall be
permitted to take said vehicle to and from work:
A. Mayor;
B. Fire Chief and Deputy Fire Chief;
C. Police Chief;
D. Superintendent of Public Works; and
E. Emergency Management Director.
No other employee shall be permitted to take a municipal vehicle to and from work
without written authorization from the Mayor or his or her designee, with a copy of said
written authorization provided to the City Council.
4. Parking in designated areas. All other town vehicles shall be parked in designated areas
in municipal parking lots.
5. Violations and penalties. The penalty for failing to comply with this Ordinance shall be
for each and every offense forfeit and pay a penalty of twenty-five dollars ($25.00) for
the first violation; fifty dollars ($50.00) for the second violation; and two hundred dollars
($200.00) for the third violation and each subsequent offense. Each day that a person is
in violation shall constitute a separate offense. This penalty is not intended to, in any
way, limit the applicability of the provisions of the noncriminal disposition procedures
set forth in Massachusetts General Laws.
DATED THIS OF „ _ . 2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C.Johnson, President
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, Solicitor
VV , <5 0 PA
General Laws to convey real property acquired by tax title. The Mayor may grant licenses to use
municipal real estate on such terms and conditions as he/she deems appropriate.
Section 2-103 Gifts of Land or Interests therein
The Mayor shall have the authority to accept on behalf of the Town land in fee simple or an
easement or any other interest in any land for any municipal purpose in any case when such
conveyance shall not require the payment of any monetary consideration for said land or interest in
said land by the Town.
Section 2-104 Use of Town Vehicles
1. Rate; turnpike tolls. The rate to be paid for use of a motor vehicle for travel by town officials
or employees shal I be eighty percent (80%) (rounded to the nearest penny) of the rate
allowed by the Internal Revenue Service for each mile of travel. Turnpike tolls shall be paid
when a receipt of payment is submitted for reimbursement.
2. Restrictions on use. No person shall use any town vehicles for his personal use. Said vehicle
shall only be driven by the individual to whom it has been assigned and shall not be used
outside of the town unless on official town business.
3. Marking of vehicles. All town vehicles, except for certain Police Department vehicles as des-
ignated by the Mayor, shall be appropriately marked with departmental or town seals or
appropriate lettering that is highly visible and identifiable as a town-owned vehicle.
4. Taking vehicles to and from work. Notwithstanding the foregoing, the following department
heads and/or employees who have been assigned a town vehicle shall be permitted to take
said vehicle to and from work:
A. Mayor.
B. Fire.
C. Police.
D. Water.
E. Operations
No other employee shall be permitted to take a municipal vehicle to and from work without
written authorization from the Mayor or his or her designee.
5. Parkin i�gnated areas. All other town vehicles shall be parked in a designated area in
the municipal parking lot across from the Municipal Office Building.
6. Violations and penalties. The penalty for failing to comply with this Ordinance shall be
governed by Section 1-105 of the Ordinances of the Town of West Springfield.
Page 7 of 97
Y)?O -f-b b
TOR-2014-5
V�iN\
AN ORDINANCE TO AMEND THE CODE OF THE TOWN OF AGAWAM
TO ESTABLISH CHAPTER 50 ENTITLED "VEHICLE USE POLICY"
(Sponsored by Councilors Donald Rheault, Robert Rossi and Anthony Suffriti)
WHEREAS, it is the recommendation of the Agawam City Council that a Vehicle Use Policy be
put in place to govern the use of city-owned vehicles to limit use of them for their intended use
for official business of the city; and
WHEREAS, the Agawam City Council believes it is necessary to establish administrative
regulations which standardize a policy and the procedures used in the use of city-owned vehicles;
and
WHEREAS, the Agawam City Council desires to consolidate policies and procedures to
eliminate confusion and unpredictable consequences, and to reduce liability exposure in the use
of city-owned vehicles; and
WHEREAS, the Agawam City Council desires to create a policy which would enhance fiscal
responsibility as well as a more efficient and effective use of city-owned vehicles; and
WHEREAS, the Agawam City Council believes that a city-owned Vehicle Use Policy will
substantially increase the efficiency and economy of the Town of Agawam in energy
consumption and/or cost savings; and
NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM CITY COUNCIL that the
Agawam City Council hereby establishes and enacts a new section of the codified ordinances of
the Code of the Town of Agawam to provide for a Vehicle Use Policy to take effect immediately
upon passage and are to apply to the use of all city-owned vehicles.
Dated this day of ,2014.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
Agawam City Council
APPROVED AS TO FORM AND LEGALITY
Vincent Gioscia, City Solicitor
PROCEDURES FOR CITY OWNED VEHCILES
A. STATAEMENT OF PURPOSE:
The purpose of this policy Is to establish standard requirements and procedures in
accordance with applicable provisions of the Town of Agawam for the employees who
are assigned a City-Owned Vehicle (hereinafter referred to as "City Vehicles)") in
the course of providing City services and conducting city business. This policy is
Intended to ensure the safety and wellbeing of City employees, to facilitate the
efficient and effective use of City resources, to minimize the City's exposure to
liability, to monitor the use of City owned vehicles, and to comply with Internal
Revenue Service regulations relating to City Vehicle usage
B. General Provisions
(1) City Vehicles are to be utilized exclusively for City business and matters relating to
the operation of the services provided by the city to the community. This policy
covers all vehicles and/or leased by the City.
(2) Any violations of this section may result in disciplinary action including, but not
limited to, verbal warning, written reprimand, time off without pay (suspension),
loss of use of city vehicles, and/or termination.
(3) All employees assigned a city vehicle are required to sign a statement indicating
that they have read and will comply with this section.
B. ADMINISTRATION:
This ordinance shall supersede all other previous policies and will control as to conflict regarding other
policies setting forth guidelines governing the assignment of city owned vehicles and mileage
reimbursement.
The City Council or it's designee is the source of authority for the administration and control of this
ordinance.
The City Auditor and the office of the City Treasurer shall be responsible for the review of assigned
vehicles and mileage reimbursements in order to determine that the ordinance is properly
administered.This review shall coincide with the annual preparation of the City's budget.
C. ELIGIBILTY:
(1) For the purpose of this ordinance,the Mayor,the Chief of Police, the Fire Chief and the
Emergency Management Coordinator are considered to serve in a 24 hour capacity and are
entitled to have unrestricted use of a city owned vehicle and only while acting in such an official
capacity and only while acting on official City business; under no circumstances shall a city
owned vehicle be use for private or personal use.Take home purposes are for to and from the
work place only.
(2) An employee required to drive in the course of their regular duties and while on city business
may be assigned a City owned vehicle during working hours only,subject to availability.
(3) City assigned vehicles will be reviewed annually by the department head as part of the budget
process and for I.R.S. reporting.
(4) No City employee shall be assigned a city owned vehicle to commute back and forth to work,
except those employees as listed in section(C-1)above.
(5) Any employee assigned a City owned vehicle may be assessed a taxable benefit through his or
her paycheck based on rules set forth by the I.R.S. in Publication 15-8, Employer's Tax Guide.
D. GENERAL RULES:
Use of a City vehicle by an employee is neither a right nor a privilege; it is a trust conferred to the
employee to facilitate necessary City business.
City owned vehicles shall be used only in the performance if City business, including meetings,
conferences or other business related events. City owned vehicles shall not be used for private or
personal business except for incidental stops during travel to and from the work place. Personnel are
prohibited from transporting personal property.
City vehicles will not be used to transport family members or other passengers not engaged in City
business,without prior approval.
City vehicles shall be operated in a safe and courteous manner at all times. The operator shall be
required to comply with all laws and ordinances concerning operation of motor vehicles and rules of the
road and shall not be operated by an individual using or under the influence of drugs and/or alcohol.
Seat belts must be fastened for the driver and all passengers during operation
Except for and during the performance of official City business, no alcohol or firearms shall be carried in
a City vehicle without express permission.
An employee who is operating a City owned vehicle will be required to pay for any moving motor vehicle
violations and/or parking tickets he/she is responsible.
Should an employee who is assigned a City owned vehicle on a 24 hour basis, be absent for more than
three (3)days the City owned vehicle shall be returned to the work place for the duration of the
employee's absence.
An employee who is assigned and/or operates a City owned vehicle must have the appropriate valid
driver's license,inspection sticker and current license plates.
All City owned vehicles shall bear current official municipal license plates assigned to each vehicle as
issued by the Commonwealth of Massachusetts, Registry of Motor vehicles. Exception:Any city owned
vehicles assigned exclusively for police undercover or surveillance purposes that require special purpose
plates shall be assigned to each specific vehicle in accordance with the laws of the Commonwealth of
Massachusetts and the Registry of Motor Vehicles.
All city owned vehicles shall bear the Town of Agawam Seal and conspicuously displaying the markings
of the City department to which the vehicles are assigned.
All City owned Police and Fire apparatus are required to have conspicuously displayed markings with
appropriate Town of Agawam decals,as well as appropriate emergency lighting to include an emergency
light bar where required.
E. REVOCATION OF TAKE HOMEAUTHORIZATION:
(1) For failure to comply with any provision of this ordinance.
(2) For a change in job assignment,duties or responsibilities.
(3) Take home vehicle is no longer justified.
(4) When it is in the best interest of the Town of Agawam.
SPECIAL CIRCUMSTANCES:
This policy is intended to provide a basic framework governing the use of city owned vehicles in the
town of Agawam,and, as such, cannot contain procedures governing every situation that might arise.
Employees seeking clarification of or exemption from the procedures of this policy should contact the
office of the City council or it's designee who will provide such clarification and may authorize
exceptions to the policy under mitigating circumstances.
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Whereas, It is the recommendation of the Agawam City Council that a vehicle es policy be
put in place to govern the Use of City-owned vehicles to limit use of them for their intended
use for official business of the City, and
WHEREAS, The Agawam City Council believes it is necessary to establish administrative
regulations, which standardize a policy and the procedures used in the use of city owned
vehicles, and
WHEREAS, The Agawam City Council desires to consolidate policies and procedures to
eliminate confusion and unpredictable consequences, and to reduce liability exposure in the
use of city owned vehicles, and
WHEREAS, The Agawam City Council desires to create a policy which would enhance fiscal
responsibility, as well as a more efficient and effective use of city owned vehicles, and
WHERESAS, The Agawam City Council believes that a City-owned vehicle use policy will
substantially increase the efficiency and economy of the Town of Agawam in energy
consumption and/or cost savings, and
NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM CITY COUNCIL that the
Agawam City Council hereby establishes and enacts a new section of the codified ordinances
of the code of the Town of Agawam to provide for a vehicle use policy. 7_4��
1i�/l7aG/.vje/sue u��l -��SQ.p_rl-- ►�`�
SECTION1. The Code of the Town of Agawam is hereby amended and enacted to add a
new section of the Agawam Town Code, an ordinance entitled, "Vehicle use Policy"
The regulations and procedures outline in this ordinance are to apply to the use of all City
owned vehicles.