The mayor and his outgoing city solicitor emailed and texted their way to a $45,000 separation agreement.
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HOLYOKE — Achieving a separation agreement that was satisfactory to both sides wasn't easy, judging from the exchange of emails and text messages in April between Mayor Alex B. Morse and Heather G. Egan, his soon-to-be-ex-city solicitor.
Once they agreed in early April it was best they part ways, the flurry of emails and texts between Morse and Egan leading up to the April 29 agreement show that a volley of bickering about how much money Egan would get, and warnings to each other to withhold agreement details from the public, were to play out before they signed the document.
Don't tell anyone
The desire to hide the separation agreement was a recurring theme in the Egan-Morse emails and texts.
"Per our agreement, I continue to intend to agree to keep all matters between us on the belief that you will not go back on your word and my job is secure until we reach an agreement otherwise," Egan texted Morse April 17. "I believe we are acting in the best interest of each other and the city handling this unfortunate situation amicably ..."
Five days later, on April 22, Egan wrote in another text: "I assume you'd like to keep this as confidential as I do."
Lawsuits clearly were a concern of both sides.
"A release from the city or its agents suing or filing a complaint against me, in any forum, for anything related to my employment would be necessary," Egan wrote in an email to Morse on April 22.
In an email reply the same day, Morse told Egan a release of all claims by the city against her was "not acceptable."
"I cannot release claims by the City Council or other officers of the city against you without their permission," Morse said.
Egan replied that Morse was wrong. As mayor, he had authority to waive all claims – the right to file lawsuits – on behalf of the city, she said, referencing the City Council as "CC."
"You need not seek CC approval for this any more than you do to contract at all," Egan said.
The separation agreement ultimately included a condition that bars Egan from seeking a job with the city while Morse is mayor, but she is free to return to municipal employment here after he leaves office. She's also free to run for elected office under the agreement.
But in an early draft, Morse objected to the "future employment provision" as being too broad, prompting this reply from Egan:
"I am open to negotiating this. I will look at proposal. I have been approached in the past by future mayoral candidates asking if I would be solicitor if they win, and I want to leave this open as an option. If you are against it, we can limit it, as a new executive could invalidate the provision with mutual agreement with me," Egan said.
Related Emails Provided to The Republican and MassLive
April 23 was a busy day of emails between Morse and Egan as they tried to forge the parting document. Egan emailed Morse to say the payment she was to receive shouldn't be subject to tax withholdings.
"I don't want to spend a ton of time on this. It cannot come back one-sided, to benefit only the city and not protect my interests, which is how it has been," Egan said.
Morse emailed six minutes later that the payment to Egan in the separation agreement would be considered wages, and thus taxable.
"Look over the rest of the agreement and let me know what else are concerns so we can get this done," Morse said.
On April 24, Egan, in a lengthy email, revisited parts of the draft agreement, including urging Morse to include a no disparagement clause, which eventually was written into the agreement.
"No disparagement protects us both (as the mutual waiver does) (so) I'm not sure why that was removed. If you want it out I don't really care. I (d)on't plan on disparaging you - and if someone disparages me in the future, it is not protected activity under (the) agreement anyway," Egan wrote.
Morse replied, "We will put in disparagement language that is acceptable, and work on mutual release language."
Tension is seen in an April 28 email from Morse to Egan, parts of which were redacted to hide the kind of claim, or lawsuit, Egan might be considering.
"A lump sum payment without deleting affirmations that indicate you do not have a [redacted] claim are unacceptable," Morse wrote. "If you (do) not want to accept the Agreement as drafted and believe that you have a claim (phrase blacked out), then you are free to file a [redacted] claim and the city is prepared to defend it but that means the separation agreement would be off the table."
Egan emailed Morse later on April 28 to say she had consulted two lawyers, whom she didn't identify, about concerns she had about the proposed separation agreement. Egan argued that limits on the city filling lawsuits against her, also, should be included in the agreement.
"I explained to you numerous times that mutuality in the release is paramount," Egan said in the April 28 email to Morse.
Also on April 28, further discussing the wording of the separation agreement, Egan again argued that Morse was wrong in one sense regarding his authority over the City Council. Morse could, in fact, specify that the City Council was among city departments that would be prohibited from filing claims, or lawsuits, against Egan, under the separation agreement, she said.
"Also, I would think you would want to cover all bases so that it doesn't look like there is something we are hiding, which is how it appears," Egan wrote.
Egan unloaded on Morse later in that same email:
"Regarding my conduct, I don't think that's a conversation you really want to have, as I have never been anything but a model employee, which you have touted publicly and is evidenced by you just reappointing me. The letter Meghan (Sullivan) drafted is full of misrepresentations that I could easily show is a pretext. I think it's best we focus on resolving this rather than making veiled threats, which is what that seems like," Egan wrote.
Morse replied 11 minutes later: "OK will let you know. Will get back to you."
Negotiating the number
"You would think you'd want to avoid making this public to the extent it's protectable," Egan wrote in an April 28 email to Morse.
Morse emailed Egan a few hours later on April 28: "My assumption is that neither of us will or should relay our conversations and/or information about the agreement."
Numerous text messages also flew between Egan and Morse – including a number of messages on April 17 and 18 – and that appears to be how they conducted much of the negotiation about the payout amount.
A source with knowledge of the details said Egan began by demanding $130,000, to cover her salary for the rest of 2014 and 2015. Egan denied to The Republican / MassLive.com that she initially sought that much.
In a text to Morse on April 17, Egan said, "I'm not moving under that number," apparently a reference to the later agreed upon $45,000.
That was followed by another text a minute later from Egan, "My lawyer saying nuts to go below 70."
Morse replied by text, "We are self insured. Pay unemployment."
"It's still through a third party admin pursuant to governing state law," Egan said in a text, followed in the same minute by another: "Like I said, if they are saying it's not a problem, let them put in the language I just suggested and I'll do 45. I can't go lower."
Morse: "What are you saying about taxes? Anyone would pay taxes."
Egan: "If we do it under the personnel line item as a settlement for some other reason aside from [redacted] severance...[redacted] or something? It can be avoided .. if it's done like that and not as a severance, there can be no taxes."
Morse: "OK, 40 ... is a lot. Talk later or soon."
Egan: "Is not a lot and is far less than I had intended. 45 is fair."
Morse: "And to get this done need to stay in those lines...Can't take another course...OK."
Egan: "Neither (of us) is going to be free of this stress til this is done, so I just want to make it happen which is why I've come down so much. I can't deal with this stress. I'll talk to you soon."
Morse: "OK sounds good."
Egan: "The number needs to be 45...I wasn't going to come under 50, and I felt that was a low number."
Morse: "You should email me the suggested changes so I can review. Very hard for me to go above 40 to be honest. 42.5 is all I can really do. I'm hoping your language changes aren't drastic and are reasonable."
Egan: "Alex, 45 has to be the number."
Morse said in an interview the $45,000-range of figures became the amount discussed because that was what he felt was appropriate. Critics often say city government should be run more like a business, he said, and separation agreements with payments are common in business.
"Obviously, my intent was to keep that number as low as possible," Morse said.
The locks are changed
Morse and Egan exchanged texts on April 30 expressing concern their secret might be revealed:
Morse: "And you haven't spoken to councilors about this have you."
Egan: "I'm ignoring everyone" and "Leaks are from your end" and "Haven't spoken to a soul" and "What are you hearing? Do people know about agreement?"
Morse: [Entire response redacted.]
Egan: "Wtf."
Morse: "I honestly don't know anything. [Redacted] only knows about transfer. Contract was blacked out."
Late in April, with the separation agreement still unsettled, Egan expressed anger upon learning Morse ordered the locks changed on the doors to the Law Department office on the second floor of City Hall Annex.
"I'm not sure what on earth type of threat you see me as that you had to have the locks changed, but clearly the word is going to spread that you've locked the solicitor out and given Kara the keys! But obviously that will raise questions. Let's just get this done. I'm tired of it ...," Egan said in an April 28 email.
In an email the next day, as Egan and Morse discussed the wording of a press release about her exit, Egan said, "Something about the locks MUST be included so I do not look bad. I still don't get why you did that??!!"
Morse replied minutes later, "Not good idea to include locks as that will become the story. We will provide a response if questions are raised about it. I think our positive comments will overshadow that, again, we mention locks that will complicate the story. Get back to you."
At a June 16 meeting of the City Council Finance Committee, Councilor Daniel B. Bresnahan asked why the Law Department locks were changed.
Assistant City Solicitor Kara Cunha said the locks were changed after the Egan exit agreement. A number of employees with keys to locks have worked for the Law Department in recent years, she said.
So, the locks weren't changed specifically in relation to Egan, Bresnahan said.
"Were any of those locks changed after any of the previous city solicitors" and other staff attorneys left, Bresnahan asked.
Morse said there were a number of reasons why the locks were changed, without elaborating.
In the Nov. 5 interview, Morse said the Law Department locks were changed as a precaution based on numerous employees having worked and left the department in recent years with some failing to turn in their keys.
"It wasn't specific to Heather," Morse said.
Asked her thoughts on why the locks were changed at the office of the City Solicitor, Egan said in a Feb. 11 email, "I cannot presume to suggest what was going through (Morse's) mind when the locks were changed; I can only presume it had to do with my resignation."
As for the extensive emails and texts attributed to her in the pages of documents The Republican and MassLive.com received in public records requests, Egan was asked whether they really were her words.
"Some yes, some no, some taken out of context, some protected by law," Egan said.
In the late afternoon of April 29, Morse, apparently with Egan's approval, released a two-paragraph press release about her departure:
"City Solicitor Heather Egan, citing personal reasons, has formally resigned from her position today. Heather has served the city faithfully and her dedication and legal talent was a great asset. I wish her the best of luck in her future endeavors.
"Heather thanked Mayor Alex Morse for the opportunity to serve the city. 'It has been an honor to work alongside the mayor, the City Council and the dedicated staff of the city, and I look forward to giving back to my hometown in a different capacity.'"
Shortly after, it became known that Egan's departure included a payment of $45,000.
Egan is prohibited under terms of the separation agreement from working for the city as long as Morse is mayor. She said recently that since resigning as city solicitor, she has continued to practice law.
"I have done a variety of contract work, and am currently determining whether I should join another firm locally, open my own practice, or work in a corporate environment," she said in an email.
She concluded with what appeared to be a joke. Punctuated by a smiley face "emoticon," Egan said that perhaps some day she would run for mayor here.
Heather Egan separation agreement provided to The Republican and MassLive