Sussex officials: First State's contract will remain in effect

Sussex County administrators say First State Animal Center and SPCA is under contract to provide animal control in Sussex County until the end of the year.

The First State board voted July 13 to give 60 days' notice to its animal-control clients – New Castle, Kent and Sussex counties and the City of Wilmington – that animal control services would end midnight, Tuesday, Sept. 15.

But Sussex officials say the contract gives First State no right to terminate the contract early, said spokesman Chip Guy.

Sussex County's contract with First State, set to expire at the end of the year, states that the county may terminate the contract with a 60-day written notice, but the contract gives no such authority to First State.

However, the force majeure clause in the document does waive liability for nonperformance of duties by either party in the event of “government restriction, strike, flood, fire or unforeseen catastrophe beyond either party's control.”

First State Executive Director Kevin Usilton said the agency considers the epilogue language in the recently passed state budget handing animal-control duties to the state an “unforeseen catastrophe.”

“We're saying the state did a catastrophe when they passed legislation with no plan to take over, limiting our scope and ability to fulfill the contract,” he said in a phone interview July 21.

But according to the county's interpretation of the contract, Sussex County Administrator Todd Lawson said at a July 21 council meeting that First State is expected to continue providing services according to the agreement.

“They're on the hook until the end of the year,” he said.

A letter from county attorneys sent to First State this week states that First State is expected to continue to provide dog control services through Dec. 31.

“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 the contract,” the letter states.

Despite the technicalities of the contract, Sussex County Deputy Administrator Hal Godwin brought options for interim solutions to Sussex County Council's attention. Guy said those solutions are secondary to the county's position that its animal-control contract with First State is valid through the end of the year.

Godwin, as well as representatives from Kent County, New Castle County, City of Wilmington and the state Office of Animal Welfare met July 20 to discuss the fate of animal-control services after midnight, Tuesday, Sept. 15, if First State's notice of termination is deemed valid.

Godwin said if the county is left without First State's services, and if the state Office of Animal Welfare is unable to provide animal control from September through the end of the year, the county may have to provide its own officers and equipment while entering into short-term agreements with local kennels or shelters to house animals.

“I've tried to assemble the what-ifs,” Godwin said. He told council if Sussex County needs to assume animal-control duties for a few months, it would most likely require hiring seven officers and obtaining three animal-control trucks. If that happens, he said, the hope is that county-hired animal-control officers could then land state jobs when the state Office of Animal Welfare takes over animal control.

“I believe we can get this done,” he said.

Office of Animal Welfare Director Hetti Brown said she is unsure about the legal status of each contract in regards to First State's 60-day notice, but state officials are internally reviewing its contract with First State for animal cruelty and rabies control, which First State also plans to terminate Tuesday, Sept. 15.

“This situation was presented to us early last week, and of course we're trying to expedite every process we can and exploring different options to provide support to the counties,” she said.

Brown said her office has not approached First State for any temporary assistance, but Usilton said in a recent email to the Cape Gazette that his agency could consider providing short-term contracts for the counties and City of Wilmington while the Office of Animal Welfare prepares to take over animal control. He said that would be considered only with board approval, and if the Office of Animal Welfare would consider hiring First State's animal-control officers. He also said First State would be willing to sell its animal-control vehicles to the counties.

“If First State wanted to reach out to speak to us about alternative plans, of course we would be open to that dialogue,” Brown said. “But we have not reached out to them.”

According to epilogue language in the recently passed state budget, animal-control duties would be assumed by the nearly 2-year-old Office of Animal Welfare as each contract with First State expires. Sussex County's animal-control contract with First State would have been the first to expire at the end of 2015, followed by New Castle County on Dec. 30, 2016, Wilmington in February 2017 and Kent County on June 30, 2017.

However, the language also states that each county and the City of Wilmington will be responsible for animal-control duties until the new state office is staffed and ready to take on those responsibilities.

“The plan always was that we would absolutely assume animal-control enforcement responsibilities as the current contracts expire,” Brown said.

Brown said her office also is considering interim solutions.

“We're committed to supporting the counties in any way,” she said.

The Office of Animal Welfare was created in November 2013 and is housed within the state Department of Health and Social Services. Since its creation, it has assumed management of spay and neuter programs for Delawareans on public assistance, re-established the Dangerous Dog Panel, started overseeing shelter standards, published the first regulations outlining the requirements for standardized training, and assumed responsibility for animal-control training and certification programs. It also plans to reform the state's dog licensing program.

As for animal control, though, the office is still developing a training program, has not yet hired any animal-control officers, has not established a communication system and has no contracts with shelters or kennels to house seized animals.

Brown said it will be the responsibility of the counties and City of Wilmington to devise a communication system for animal-control complaints until the state is ready to take over.

As of now, come Wednesday, Sept. 16, it is unclear who Delaware residents will call to report animal-control or cruelty complaints, or where seized animals will be housed.

“There are more questions than answers, and the clock is ticking,” Usilton said.