The Menchaca business continues

Midland, Texas, City Council meeting 7/16/07:

Mayor Canon:  Uh, before we get into this, uh, I tell you what Wes, why don't we go ahead and make a motion.
Councilman Perry:  I'd like to make a motion that we uh rescind that contract.
Mayor Canon:  Do I hear a second?
Female voice:  Second.
Mayor Canon:  Okay, we have a motion and a second that we rescind the contract, or the uh, actually it's not a contract yet, it's an offer...

Watch the MyWestTexas video of the roughly 18 minute meeting here    .

A contract represents a meeting of the minds.  There's an offer,  there's an acceptance, and consideration changes hands.  Under basic contract law an offer can be withdrawn at anytime prior to acceptance.  And that appears to be what happened.

Former Midland City Manager Mr. Menchaca had been offered what many people believed was an overly generous amount of money to leave the job.  And on July 16, 2007, the City Council met, voted, and rescinded the offer.

News roundup:  City Council votes to withdraw $481,000 settlement offer for city manager; and City manager refutes mayor's claim, wants the city to honor earlier agreement.

The Severance Agreement that was offered to him (download it from Stephanie Sparkman) stated that his resignation would be effective at July 31, 2007, at 5:00 pm., and the agreement would become effective on August 1, 2007, at 5:00 pm.   Why the one day gap, I don't know.  However, the Severance Agreement did contain a provision whereby he stipulated that he had been given at least 21 days to consider it.

Although yesterday's meeting was one day shy of  21 full days, he's had plenty of time to consider it.  And in fact he seems to have made subsequent written demands through his attorney, however, those further demands may have been withdrawn just prior to yesterday's meeting.  Hopefully, Ms. Sparkman will make those letters available at her website for historical purposes.

Mr. Menchaca is probably not trying to make excuses for why he didn't accept the offer sooner, but according to the MRT:

Menchaca noted a federal statute designed to protect the rights of employees requires a 21-day waiting period before he could legally sign the city's offer.

Mr. Menchaca is probably reading a little too much into that federal statute.  The Severance Agreement contained a release of any claims he might have had against the city, including a waiver of any claim for age discrimination.  And 29 USC Sec. 626 (f)(1)(F) -- see the Age Discrimination in Employment Act -- requires a minimum of 21 days for someone to consider signing a waiver of any claims he/she might have against an employer for an age discrimination claim.  But, there is nothing in the statute that says or even implies that an employer must keep an offer open for any period of time.  Age discrimination probably wasn't an issue anyway but merely a small piece of the boiler plate language any modern day severance agreement would likey have.

So it boils down to this.  Mr.  Menchaca had ample time within which to accept the offer, but the offer was withdrawn before he got around to accepting it.  So there is no contract.  And there's definitely no meeting of the minds.

El negocio del Menchaca continuo.

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But there's a plus side to this. Students in my labor and employment law classes aren't there because they think they "have to" take the class for the bar. Presumably, they take my classes in many to most cases because they think they actually might be interested in the subject, and/ or because they like me or think they might like me as a prof. Now, maybe some students will change those opinions during the semester, and I'm sure some sign up because they want a class that meets at X time on X day to fit...