Do Something About Checks and Balances

By Mike Flaherty | Sep 04, 2011

Dear Friends and Neighbors,


For those who have followed the public hearing of the former Town Accountant, I don't have to tell you how "counterintuitive" it is (for lack of a better word) to have the Town Administrator be the presiding officer over the same employees who he/she has terminated.  Unfortunately, as far as I can tell from the Town Charter it had to be that way.


I would like to change that.


I have submitted a warrant article for the upcoming Town Meeting that would still allow the Town Administrator to terminate the same personnel that he/she is allowed to today. However, it would ensure that the Board of Selectmen would have a role if/when an employee disputes their removal.


The verbiage that will accomplish that is included on the right hand side of the following link.


http://www.warehamforum.com/main/index.php?option=com_content&view=article&id=76&Itemid=69


Please consider supporting this article when it comes to a vote at Town Meeting.


Thank you for your time.


Mike Flaherty
Wareham MA

 

Comments (17)
Posted by: watersprite | Sep 05, 2011 09:22

Mike,

 

Thank you very much for taking the responsibility to offer this change.  You are totally on point in the matter insofar as no single person or entity should have the power to be judge and jury.

 

However, the section is still lacking.  While it sets the time frame and allows the plaintiff to bring counsel, it doesn't do much in clarifying the obligation of the BOS in the matter, nor does it say what the plaintiff is allowed to do in his/her defense.  Since the BOS is not an experienced appellate group, they will need direction and counsel.  Is the presence of Town Counsel required?  Is this proceeding required to follow any standards of appellate process - does the plaintiff have the right to call witnesses, including his/her boss who handled the dismissal?  Can witnesses be called to provide evidence of superior performance by the plaintiff?

 

This is a great start - but I suspect these are the kinds of questions that will be discussed at TM.



Posted by: timm von buttinski | Sep 05, 2011 13:47

Mike - I agree with Watersprite that this is a great start. But, I strongly disagree with your proposed remedy to the problem, bringing the BoS into the fray. They are a political group. They appoint the Town Administrator. Can they be neutral in a dispute between their employee (the T/A) and one of the T/A's employees. Doubtful.

In fact, I have observed & been part of comparable situations in a different Town. Based on my obswervations & experience, the BoS is the wrong way to go.

There is a better option: arbitration and/or mediation. Bring in an unbiased outside person trained in dispute resolution. The hearings have rules, similar to courtrooms. the politics are removed from the table.

One other point. Your warrant article attempts to preclude any appeal from the decision of the BoS. One doubts that a restriction of that kind would pass legal scrutiny. At least that is how it appears to me, but I'm not a lawyer.



Posted by: watersprite | Sep 05, 2011 14:20

In many (if not most) contracts today, the parties agree to a binding arbitration by a recognized neutral third party.  This is designed to avoid costly litigation.  As Timm points out above, there are accepted rules of procedure that guide participants.  Town Counsel could be directed to identify who acceptable arbitration firms are and provide his own opinion on their effectiveness.  Binding arbitration is not open to appeal.



Posted by: Mike Flaherty | Sep 05, 2011 14:36

 

Watersprite, thanks for your comments.


You bring up some good points, but when it comes to modifying the Town Charter, I really prefer to think that less is more.


For exmample, when you write, "nor does it say what the plaintiff is allowed to do in his/her defense", I take it you are referring to the employee/officer who is challenging their removal/suspension.  In that case, what is not clear about...



===============================
From the proposed (and current) verbiage.


The officer or employee shall have a right to be represented by counsel at such hearing, to call witnesses and to introduce evidence and to examine any witnesses who might appear at the public hearing.
===============================

 

Watersprite, you wrote "Since the BOS is not an experienced appellate group, they will need direction and counsel.  Is the presence of Town Counsel required?"


That is a good point.  I thought it was a given that Town Council would be present and involved for such hearings, but if the Lynn Road debacle has tought us nothing else (where town lawyers were dismayed at not being consulted by the TA from the beginning), it might make sense to explicitly require presence of Town Council in the law.


===============================
Watersprite wrote:

This is a great start - but I suspect these are the kinds of questions that will be discussed at TM.
===============================


Agreed, and believe me, I'll be the first to say I don't have a monopoly on wisdom.  Five hundred heads are better than one, or at least they should be :-)



Posted by: Mike Flaherty | Sep 05, 2011 14:41


================================================
TVB wrote:

But, I strongly disagree with your proposed remedy to the problem, bringing the BoS into the fray. They are a political group. They appoint the Town Administrator. Can they be neutral in a dispute between their employee (the T/A) and one of the T/A's employees. Doubtful.
================================================

 

And the TA isn't a politician?


At least the BOS is ultimately answerable to the people, whereas the TA is answerable to 3 out of 5 other politicians.

 

TBV, would yoou agree that the proposed verbisage is at least a quantum leap of an improvement compared to what we have now?



Posted by: Mike Flaherty | Sep 05, 2011 14:46

TVB or Watersprite,

 

If you prefer the arbitration route, then what might your motion(s) look like?

 

And I agree, I believe the intent of either approach is to be final and binding,  I think the intent there is to save everyone time and money,

 

What I like about having the BOS conduct a PUBLIC hearing, rather than a closed-door arbitration hearing, is that the PUBLIC will hopefully learn the TRUTH from both sides.



Posted by: watersprite | Sep 05, 2011 22:00

Mike,

For clarity sake, would a plaintiff in such case have the right of discovery?  Would they have the right to emails, their personnel files, Outlook calendars of all other Town employees who may have material information about the dismissal or work performance?

 

I will volunteer to investigate possible arbitration groups that might be appropriate.  As for an open or transparent process, I would recommend that the results of the binding arbitration become part of the public record, so far as that is allowed by the Public Records law.  I don't believe having the BOS involved is appropriate - it is not something I would elect a selectman for, it is not an area of expertise or competence for the board, and I would not want them measured on how well they conducted themselves in such a hearing.  They need to judge/evaluate town management on how well they perform their normal activities, which they struggle and generally fail to do well today.



Posted by: Mike Flaherty | Sep 05, 2011 22:15

Thanks Watersprite for your offer to do some legwork.

 

Under the current process, the TA had a public hearing and it was televised (but continued and not completed). 


Do you know if the same can be done while using arbitration?


If so, then you have my interest.



Posted by: watersprite | Sep 06, 2011 08:25

Have you thought about the possible "chilling" affect of a public personnel hearing?  My sense is that if it is mandatory that the hearing be open to the public, chances are the parties are more likely to settle quickly and privately (Don't you believe this was a factor in the Zaleski hearing? BOS management of this hearing might have led to the same result.).  If it is held privately, but the proceedings are documented and publicly available afterward (say within 5 days), I believe a full hearing is more likely and you will get the benefits you're seeking so long as the rules are followed (a VERY big assumption given our current TA and disinterested BOS).

 

Additionally, what about the likelihood of BOS grandstanding?  Video cameras have become a two-edged sword.  While they've given hundreds of people access to our governmental process (if they choose to use it), it also provides a forum for purely partisan rhetoric that cannot be easily dismissed once spoken.  Are there any penalties or even downsides to a BOS member making an irrelevant political or highly partisan statement in such a public hearing?  A live video record cannot have comments stricken - P-Span is a regular recorder of such hearings and they would  be available potentially to anyone who asks.

 

But to answer your question about a public arbitration hearing, unless someone knows better, I assume Wareham could make its own rules about broadcasting it.



Posted by: watersprite | Sep 06, 2011 08:33

I would like to hear from Cara Winslow on this topic, given her background in working with several municipalities regarding union and personnel matters.  Mrs. Winslow??



Posted by: watersprite | Sep 06, 2011 08:55

Mike,

 

The Massachusetts Division of Labor Relations provides arbitration/mediation services and has stipulated how its hearings are conducted.  Such hearings can be conducted by hearings officers or agents.  Whether MDLR can hear municipal appeals will require a little more digging, but the link below is to the division's regulations.  Wareham could at least model a process after these rules, particularly as found in sections 12 and 13.

 

http://www.mass.gov/Elwd/docs/dlr/dlr_regs_508.pdf

 



Posted by: Cara A Winslow | Sep 06, 2011 12:35

Watersprite: This topic wil be discussed at a future BoS meeting (I believe) but in general here is how I feel on a personal level based on my expereinces:

1. A checks and balance system is good, it can serve as a preventative measure. For example, when the TA sees fit to terminate they know that ultimately that termination will be reviewed by their boss(es) so they are more likley to cross their t's and dot their i's because how embarrassing to fire someone and have the BoS put them back to work.

2. The Civil Service Commission, MDLR, and private arbirators are great resources and even with a hearing an employee can appeal to any of those avenues provided they are a civil service employee or covered by a contract that specifies a grievance procedure through those agencies (sorry Mike, but you can't deny people the due process afforded them in an existing contract or by virtue of their civil service status). With that said, look how long it took to get a decision in the Lt. Bliss case, and then look at how much money we owed!

3. I will say that in almost ten years of working with unionized employees in some fashion I only witnessed one occassion where a termination was at the public hearing level. It doesn't happen that often.

I am looking forward to this discussion, I think that in light of recent events the public has grown more concerned about the processes in place. Tax dollars are intended to fund necessary services to a community, we all want to see those dollars spent wisely so we can afford more and better services. In general I support a checks and balances system. My research indicates this had always been in effect until recently.

Kudos to Mr. Flaherty for taking this on!



Posted by: Onsetpiper | Sep 06, 2011 15:58

Good suggestions, in general, but I'm not sure it solves the case in hand. Terminating Mr. Andrews and restoring professionalism and integrity at the top would likely be the best course to address what has happened, which the BOS most definitely has control over. It's apparent that the root cause of the Town Accountant's firing remains suspect, and Mr. Andrews is largely what's suspect.

As for checks and balances, this is handled routinely in most other towns with competent management that follows proper procedures, but that certainly hasn't been Wareham's case the last 4 or 5 years. Remove the root cause, instead of paving over it, and I think your problem is solved.



Posted by: watersprite | Sep 06, 2011 16:44

Onsetpiper,

 

While I agree that Mr. Andrews deserves huge blame in ignoring regulations, bylaws, explicit instructions, and innumerable requests, the problem that Mike is correcting is indeed a structural issue.  The bylaws place the responsibility for hearing an appeal on the TA.  Since the TA can legitimately have authority to dismiss employees, he cannot be the one who hears an appeal - the dismissed employee cannot realistically call the person who dismissed them as a witness, and expect fair treatment in that same person's ruling.

 

It is is still utterly bizarre that Mr. Andrews held one day of hearing for Ms. Zaleski, heard her testimony, and then ruled in her favor, effectively admitting that he made a mistake in firing her that cost the Town over $45,000 in hush money.  But following the rule as stated in the bylaw, he acted appropriately in the way he conducted the hearing - to the letter of the law.  So we have to change the way appeals are handled.



Posted by: Onsetpiper | Sep 07, 2011 10:01

Good post Sprite, and exactly my point. The solution as I see it isn't changing the process-it is changing the processor, Mr. Andrews. You can make the structural changes above, but your'e still left with someone who wrongly threw an employee under the bus. The Town, and BOS, should be able to rely on competent management to adequately review employee performance and properly supervise their ongoing responsibilties. While that happens most everywhere else, it doesn't in Wareham. And it certainly shouldn't be tolerated when a Town Administrator sets someone up to fail to avoid accountability.

Let's say the structural change was already in place...given the track record of Mr. Andrews and the BOS over the past several years, do you really think the outcome would have been any different? Didn't the BOS have to approve the settlement in executive session?  I belive they already had a similar role to what is being proposed.



Posted by: Mike Flaherty | Sep 07, 2011 21:55


Cara, thank you for engaging the community openly on the substance of the issue with your personal thoughts.



========================================
Cara Winslow wrote:

 (sorry Mike, but you can't deny people the due process afforded them in an existing contract or by virtue of their civil service status).
========================================

 

No problem.  I think this is covered under the proposed (and current) verbiage in the very first sentence, where it reads. "Any appointed officer or full time employee of the town, not subject to the provisions of the civil service law..."



Posted by: Mike Flaherty | Sep 07, 2011 22:08

 

========================================
WaterSprite wrote:


Have you thought about the possible "chilling" affect of a public personnel hearing?  My sense is that if it is mandatory that the hearing be open to the public, chances are the parties are more likely to settle quickly and privately (Don't you believe this was a factor in the Zaleski hearing?
========================================

 

WaterSprite, you are asking some of the questions I had in mind for Town Council.  I will take your concern above one step further.  I'm not worried so much about a "chilling" affect as much as I am about a "pre-emptive strike" where a TA strikes a deal with the employee before the employee is actually removed/suspended.


All of this is hypothetical, of course.


I believe (and I may be wrong) that with the proposed verbiage, a TA (or BOS) would NOT be able to enter into any settlement agreements at all until 1) a removal/suspension has been initiated by the appointing authority (the TA) AND 2) it is then disputed by the employee or officer.

In other words, I think the ONLY initial action that the TA could make to remove or suspend someone would be to terminate that person's EXISTING contract only for whatever hopefully legitimate cause that said TA may have.

Then, and only when the employee disputes the TA's decison, can there be discussions about settling - which would be an option throughout the public hearing process.  The key here though is that once there is a dispute, it is out of a TA's hands and he/she has no authority to negotiate a settlement - only the BOS would.


At least this is what I intended, but I need clarification from Town Council if the proposed verbiage accomplishes that.

 

WaterSprite, I do find your idea of arbitration intriguing, and I could even find myself supporting it if you could develop more details and make a motion at TM.  If that is your intent, then I would hope you would do as I have here and post it publicly ahead of time so that folks can kick the tires on it before hand.


That said, I am going to continue my efforts on my original Article that will rest the power within the BOS.


I think either approach would be a vast improvement over the current process and I wish us both luck.


It has been a sincere pleasure.


Michael Flaherty



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