Sussex adds bite to bark in animal control contract dispute

GEORGETOWN — Sussex County Government believes First State Animal Center-SPCA’s plan to relinquish dog control duties at midnight on Sept. 15 is a breach of contract, and hopes to meet with the center’s leadership to discuss the matter further.

In a letter dated Wednesday and sent by certified mail to FSAC-SPCA Executive Director Kevin Usilton, Sussex County’s legal counsel conveyed its interpretation of a contract for dog services that’s now in question.

Earlier, Camden-based FSAC-SPCA announced it was terminating contracts with Delaware’s three counties and the city of Wilmington after legislators voted to move animal control to state oversight as current agreements expire. The early termination notice was made 60 days prior to going into effect, Mr. Usilton said.

FSAC-SPCA contends that the upcoming transition has hamstrung its future operations with pending employee departures due to an uncertain future, and Mr. Usilton cited a contract clause stating that an “unforeseen catastrophe beyond either parties control” would allow either party to option of contract termination before the original expiration date.

“The state took away our power to adequately employ people to perform the duties of our contractual obligations,” Mr. Usilton said.

Countered Sussex County in the letter:

“First State’s internal business decision to cease providing the services prior to the expiration date does not invoke the Contract’s force majeure clause and is not a legally valid basis to terminate this contract.”

The contract between FSAC-SPCA and Sussex County has an expiration date of Dec. 31, 2015, the letter said.

Animal control ‘expensive’

Mr. Usilton confirmed that he received the letter on Wednesday afternoon, and could only provide limited comment since FSAC-SPCA’s legal counsel is reviewing it.

“I understand where they are coming from because animal control is expensive,” Mr. Usilton said.

“I anticipated the letter’s arrival.”

Mr. Usilton said two staff members covering Sussex County have accepted other positions and “we don’t known when their last day will be.”

Also, all but 10 staff members officers are currently interviewing for positions and actively seeking new employment, Mr. Usilton said.
Services provided after Sept. 15 to the end of the year will cost $200,000 a Sussex County spokesman said. The County believes FSAC-SPCA is responsible for covering the costs of dog control if it does not provide services and a replacement solution is required.

“If First State is unable to perform the Contract and the County must utilize equivalent services procured on an open market, Section 7 of the contract requires First State to pay the County the excess cost of the open market services,” the letter read.

Sussex County said the contract with FSAC-SPCA was executed on Dec. 30, 2009 and has had six addendums since.

Sussex County Attorney Everett Moore Jr. said County Administrator Todd Lawson forwarded counsel a letter from FSAC-SPCA dated July 14 and notifying government of its intentions to terminate the contract “prior to the agreed expiration date.”

A contract termination more than three months before the expiration date would be a breach of contract, Sussex County stated.

Mr. Moore closed the letter by saying the County hoped to meet with FSAC-SPCA and provided Mr. Lawson’s office contact information to set up a meeting.

“Thank you in advance for your cooperation,” the letter concluded.


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