Deputy Attorney General: Animal control center must honor its service contracts

DOVER — In a July 22 letter a Delaware deputy attorney general said First State Animal Center-SPCA did not meet the criteria for early cancellation of state contracts.

Therefore, she wrote, the organization is responsible for statewide rabies control and animal cruelty enforcement until June 30, 2016.

The correspondence from the deputy attorney general, Joanna Suder, representing the Office of Animal Welfare, was sent to lawyer Steven Schwartz, legal counsel for the Camden-based FSAC-SPCA.

“Following legal review, the state believes the contracts are fully enforceable,” Delaware Division of Public Health spokeswoman Emily Knearl said Tuesday.

The state earlier said FSAC-SPCA’s termination notice “was not properly served and inadequate” and demanded that FSAC-SPCA President Kevin Usilton “immediately retract his notices to ensure that these vital public safety functions are appropriately administered.”

Earlier in July, FSAC-SPCA announced it was terminating contract terms with the state, New Castle, Kent and Sussex counties and the city of Wilmington after Sept. 15 due to a legislatively mandated transition to statewide animal control.

The transition plans, Mr. Usilton said, destabilized FSAC-SPCA’s workforce due to impending departures as contracts expired, and would not allow the center to adequately maintain staffing and safety moving forward. Thus, he said, a contract clause citing an emergency status for cancellation was in effect with 60 days notice.

The state maintains that separate contracts for rabies services and animal cruelty enforcement are valid to June 30, 2016.

Mr. Usilton signed the contracts for FSAC-SPCA and Public Health Division Director Karl Rattay and Division of Health and Social Services signed for the state, officials said.

Citing contract language including termination provisions in the Animal Control Services agreement, DAG Suder wrote, “Mr. Usilton has not cited a substantial failure by the state, nor has he given an opportunity for consultation.”

At the time of the July letter, the state said it had “not received any notice concerning (the Animal Cruelty Enforcement) contract.”

In response to the letter, FSAC-SPCA took the position that while it supported the “worthwhile goal” of the state to assume animal-control services, the incremental expiration of separate contracts made it “impossible” to continue operations past mid-September.

“Had the legislators consulted FSAC-SPCA concerning its plan, we would have pointed out that our highly trained animal-control employees would immediately begin seeking new, more secure jobs as soon as they would learn that their FSAC-SPCA employment would be coming to an abrupt end at some uncertain time during the next couple of years,” Mr. Schwartz said in response to the state’s position in the July 22 letter.

Replacing the departing employees was not feasible due to the impending contract expirations, FSAC-SPCA said, and the center “cannot readily replace them because we can offer only temporary, short term animal control jobs which would last only until the state takeover.”

Seven-part proposal

FSAC-SPCA said it would be under the risk of breach of contract lawsuits if it continued operation with insufficient staff and “through no fault of ours, we would fail to deliver animal control services which we had contracted to perform, we felt that the better, fairer course of action would be to terminate those contracts now, on 60 days notice, which is what we did.”

On Tuesday, FSAC-SPCA said it had lost three of 40 employees since the enactment of animal-control notice; earlier Mr. Usilton said a majority of the staff actively was seeking other jobs sooner rather than later.

On Monday, FSAC-SPCA sent a seven-part proposal to the state, Kent, Sussex and New Castle counties, and the city of Wilmington offering to extend service to June 30, 2016, with some contract modifications that included, among other items, a severance package for employees ($1,000 and 24 weeks of severance pay) that will be reimbursed by the state.

Ms. Knearl said the state had received the proposal and said,“We have no additional information at this time but can confirm the FSCC letter from yesterday is under review.”

On Monday night, Kent County Levy Court Administrator Michael Petit de Mange said regarding the proposal, “We are not prepared to make a comment at this time.

“This doesn’t just involve Kent County, it involves Sussex County and New Castle County, the city of Wilmington and the state of Delaware.

“Before we make any public or official position, I’d like the opportunity to talk to those entities. We’ve tried to reach out to them but haven’t connected.”

Earlier Monday, Sussex County Deputy Administrator Hal Godwin described the proposal as a document in need of legal review.

New Castle County spokesman Antonio Prado said the proposal had been forwarded to its legal counsel and declined further comment.

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