Select Board Executive Session Meeting Minutes 9/21/22
Executive Session Minutes of 9/21/22 – 5:30PM Meeting
Meeting Opened at: 5:30pm
Select Board Members Present: Justin Makuc, Chair, Susan Cooper and Scott Jenssen
Also Present: Terry Walker
Also Present Remotely: Attorney Jared Burke
Justin stated he would entertain a motion to enter executive session. Susan made a motion to enter Executive Session to discuss potential discipline or dismissal of, or complaints against the Town Clerk (Purpose 1 which Susan read verbatim). Susan would suggest that the Board return to open session following the Executive Session should Ms. Walker choose to go into Executive Session. The motion was seconded and unanimously approved. Terry opted to keep the meeting in Executive Session. It was also noted that Melissa Noe was present as Town Administrator to take minutes. Attorney Burke and Terry Walker both stated they would prefer that Melissa Noe not be present. Attorney Brewer noted that this decision is the Board’s prerogative. The Board agreed to ask Melissa to leave the meeting, and to call her back in the meeting if necessary. Melissa left the meeting.
Justin explained that the executive session served on September 15th listed six charges to be discussed and deliberated upon and the process that will be followed. Each charge will be discussed and then the Board can deliberate on whether it will issue discipline to Terry, from no discipline to termination. Other corrective actions could include (but are not limited to) verbal warning, written warning, performance improvement plan. Justin introduced a few documents for the meeting and distributed copies to all parties present.
1) Failure to appear for work at the hours set by the Select Board: Susan noted that the Clerk was asked to begin her new hours on the 14th which she did not. Terry also did not let anyone know she would not be in nor offer any reason why she could not. Terry stated that she spoke to her liaison, Justin Makuc about it and she thought the letter was a proposal not a directive which was why she submitted a counter proposal. Susan noted that the letter was very clear that the Board expected Terry to start the new hours on the 14th. Justin referred everyone to the email chain printed off which set a hard start date for the new office hours. Terry had noted she wanted to make a counter proposal, which Justin told her would have to be considered by the Board at its meeting on the 14th. Justin said that on the first page of the distributed documents Terry responded to the Board on September 8th with a counter proposal. Justin told Terry he could not authorize the new proposed schedule and it would need to be discussed at the meeting on the 14th. Justin thought that the fact that Terry did not show up on the 14th was not an act of insubordination as she was expecting to continue negotiations on the office hours. Ms. Walker would prefer not to work regular Saturday hours despite the fact that her hours in the past have sometimes included Saturday hours. Susan felt that taking from August 10th to tonight was a much longer time than it should have taken. Susan yielded to Justin’s point. Justin made a motion that failure to appear for work on the 14th was not an act of insubordination. Terry confirmed that she would now be regularly working Wednesday 10 – 7 and Friday 11 – 7:45 with 2 discretionary hours. Attorney Brewer was asked if a vote should be taken on each item. Attorney Brewer understood that the Board would be taking everything into consideration at the end of the meeting and then determine if any disciplinary action was warranted. Justin then rescinded his motion and agreed to what Attorney Brewer laid out. Susan pointed out that the issue of communications only occurring between Justin and Terry is problematic. Justin’s general modus operandi has been to defer decisions to the Select Board meetings as he is not able to make decisions by himself. Susan also noted that the current system prevents Justin from passing along the communications he had with Terry so as not to violate the Open Meeting Law. Discussion ensued amongst the Board about what might be violative of the OML. Attorney Brewer was asked for her opinion. Attorney Brewer agreed that it is a difficult line to draw but Susan and Justin are correct that information cannot be taken from one Selectman to a 3rd party and then distributed to the other members, only matters to go on the agenda (not the substance) can be discussed outside of a meeting.
2) Failure to appear before the board in a timely manner to discuss work-related issues: Susan stated that the Board expected Terry at the 8/31 meeting, again on the 7th and both meetings Terry said she couldn’t make it. Terry then responded on the 8th that she could not meet for 5 weeks. Susan finds this unacceptable. Terry said she discussed it with her attorney and she just needed time, it was her husband’s birthday, the closing on her new house and her therapy appointment and she suggested 5 weeks later as she needed time. Susan reiterated that five weeks was unacceptable. Attorney Burke advised Terry to ask Ms. Cooper to address her in a respectful way. Susan apologized for her harsh tone, but noted she was incredulous at the lengthy delay. Justin had been in touch with Terry about the birthday and house closing and felt that was reasonable. Justin noted that the Board was accommodating and would have met on a day other than Wednesday and Terry should make time to meet with the Board when requested. It is hard to deal with items of business if Terry makes herself unavailable for weeks at a time. Terry said she is unavailable on Wednesday until October 12th due to a babysitting/personal issue. Justin suggested that in the future, Terry should be clearer and should have said she is unable to do Wednesday and another day would have been set that did not postpone the meeting for five weeks. Susan noted that Justin’s previous request to Terry offered other dates, which he confirmed that it did. However, Terry still only offered October 12th.
3) Incorrect advice regarding schedule for special election and financial accounting of election: Susan recapped that shortly after John Weingold’s resignation Justin was asked to meet with Terry and find out if the special election necessary to fill the Select Board vacancy could be piggy-backed on the primary election in September to save the town money and eliminate the need for voters to come out an additional time. Terry informed Justin that this could not be done, and he had relayed this information to the Board. Terry said that she told the Board this because she had already mailed out primary ballots and felt that piggy-backing the special election on the state election would have been burdensome. Justin did not have any communications in writing about this as he only discussed this verbally with the Clerk. Justin recalls a lot of discussion about the Automark system and the chip that needs to be formatted for the ballot. Susan noted that there were actually multiple conversations about the date for the special election and asked if Terry was aware that we actually could have piggy-backed. Terry explained that she did not feel that the size of the room would have worked as she would have needed more staff and she felt it was a bad idea at the time. Susan said that the advice given did not allow for the Board to make the decision themselves and felt they were misinformed. Justin was also under the understanding that it was not feasible at all to hold the special election on the date of the state primary as he also would have considered putting them on the same date and allowing the Board to discuss and make the decision themselves. Susan noted that the majority of the accounting for the special election was staff, not the Automark ballot. Attorney Burke instructed Terry to ask Ms. Cooper when she learned of the misinformation conveyed, Terry did so. Susan responded that she learned over the weekend before the primary from her brother, a resident of New Marlborough which was holding a special election on the same day as the primary. Susan then called the elections office on September 6th and confirmed that the special election could in fact could have been held on the same day as the primary. Susan said that this misinformation cost the town $1,500-2,000, as well as requiring voters to come to the polls an additional time. Terry said she saved the town money by using some of her grant money and apologized for this happening. Susan asked if we need to consider changing the way we count votes if Terry is having difficulty finding counters. Terry added that she donated three salads out of her own pocket to save the town money on food. Susan asked how many election workers there were, Terry could not recall and said that some leave as they get tired.
4) Error-ridden list of current board and committee members: Susan suggested that since this is part of IT issues that the IT issues be addressed first, item five was moved up before item four.
5) Issues concerning back up of critical data and IT provider: Susan noted that Terry has brought up in several emails issues with IT and said that many of these incidents occurred prior to the current Board being in place. As Susan understands it from a November 29, 2017 email sent to Ms. Noe, Terry had an issue with her computer that Jay, the computer tech, was unable to explain. Susan asked Terry to describe what happened to prompt the email. Terry explained that Jay came into her office and while there he had a seizure and left and told Terry that her computer had been compromised. Terry explained that the main thing was Tom Roy lost the data and that Melissa and Tom Roy had her password to access the computer. Terry said that Tom Roy came in while she was not there and lost 10 years’ worth of data. Terry said that the creator of this program tried to work with Tom Roy but all the data was gone. Terry noted that when Justin worked for her he helped to put the data back in. Terry explained that the current report is the best she can do because hard copies do not exist for all the data she lost. Susan referred back to the November 2017 email which said that the computer was not working and she contacted Jay to look and everything was deleted. Terry also had an assistant at the time that had access to the computer. Terry then said that Jay said in a Select Board meeting that he never told Terry that her computer was compromised. Terry noted that nothing was saved on the cloud, it had all been saved on the desktop. In one of the documents Justin dispersed, he followed up with Terry on August 25th letting her know that Tom Roy would be coming in to confirm the backups and she needs to send him her passwords which she refused. The Board has since issued a directive (9/14/22) that Terry allow Tom Roy access to her email to confirm that proper backups to the server are taking place. Justin’s analysis is that he does not see it as a disciplinary item because Terry did not want Tom to access her computer, but the Board has since made a decision that Terry will cooperate with. Susan did not intend for it to be, she wanted to understand what happened with the computer system, that this was the first opportunity she has had to discuss this issue directly with Terry and that she is concerned that the current system Terry has may not be adequate. Terry is willing to work with anyone as long as she is present and noted she has nothing against Tom Roy (which Susan noted is different than what Terry stated in her previous emails and read aloud) but she appreciated the change of heart. The Board then returned to item four. Justin said that the most recent boards and commissions report does contain several discrepancies and wonders what the procedure is for establishing the list; for instance, the Board of Health is up to date as of the last election but other elected Boards are not. Terry said unless she has an easy to follow list from the Board it is difficult for her to know who is appointed. Susan noted that the positions that were elected Terry should be fully aware of as she runs the elections. Susan asked for this list back in July. She received a response that it would take 5 – 6 weeks as everything still needs to be entered into the computer. Terry then hired an outside company to do the data entry at a cost of nearly $1,000. Susan noted that they entered data from as far back 2017 and wanted to know why Terry had not been doing this in the intervening five years. Terry said she was only keeping actual documents in folders for the last 4 years. Terry was asked if she thought the work product was a good example of her work product. Terry said yes based on the information she had and then said she did not understand what she was being asked to do as she has hard copies of everything in her office. Terry was asked how many marriages she does in a year; Terry replied 4 – 5 which would have been 50 over 10 years. Susan noted that she reviewed the town reports for those years and there is never more than 4 in a year. Susan noted she found more than 60 substantive errors or omissions is the report Terry generated, which includes but is not limited to missing people that were recently elected or appointed and people that are deceased and still on the list. Terry acknowledged that she would know who is elected as she creates the ballot and acknowledged that in her haste to get Susan a list she may have missed some. Terry said that the only way she knows about appointments is if the person brings in their appointment letter. Justin agreed that this situation needs to be rectified and does not feel the problem is unique to Monterey, as other Towns have appointees who do not come in to get sworn in and there is not much that can be done about it. Susan noted that this is another communication error by Terry and if this report was not complete she should have said that when she forwarded it. The Board as a whole agreed that every item mentioned tonight boils down to problems of communication and that this needs to be improved.
6) Failure to submit to Division of Local Services (DLS) “as soon as possible” the May Town Meeting vote on establishment of OPEB Trust Fund: Justin said a certified annual town meeting report was submitted to the Attorney General but the submission to the Division of Local Services was not done until August and Terry said it was an oversight as she had never had to do this in her time as a Town Clerk. Susan noted that Terry was sent an email on July 19th by the Town Administrator asking to confirm it had been sent to DLS which Terry did not respond to and the Town Administrator followed up with another email to Terry on August 4th, to which Terry again did not respond. The Town Administrator then asked the Board to intercede, which Susan did on the 11th at which point Terry finally attended to this matter. Justin acknowledged that the situation is awkward with him acting as the conduit for communication between the Town Administrator and Clerk. Susan asked how will things be resolved if Terry refuses to talk to the Town Administrator and Terry refused mediation. Terry said she was told not to communicate with Melissa at all by Justin when the Board agreed to make Justin her direct report, and that Sophia explained this is how the direct report system works. Justin acknowledged that he now understands that he is only to act as an intermediary between Terry and Melissa which is clumsy at best. Susan pointed out that the Board has put into place many of the items recommended in the Greene & Hafer report. Terry said she worked a 16 hour day on the elections and she forgot to replace the cord cover she was upset to learn she was accused of stealing town property. Susan corrected Terry and said she has re-watched the video and Melissa never accused anyone of stealing anything, Melissa said an item was missing and that she would like to see it returned and Susan did not want anyone to continue to make accusations. Terry feels very saddened and disheartened. Susan emphasized again that no one was ever accused of stealing anything, an item was reported missing as it was not left where it was supposed to be. Terry felt that Justin should have come to her instead of the item being placed on the agenda. Justin confirmed that Melissa did bring it to his attention and the item was brought to Gary’s attention, he did not know where the item was, Justin then spoke to Terry on Thursday and resolved the issue but unfortunately the item was interjected at a meeting the night before while speaking about the location for elections.
As one item was not listed in the letter to Terry another meeting will need to be held. Attorney Brewer said the notice sent gives Terry notice of what will be discussed and if the Board wants to add anything else Terry can waive the right of notice but if she will not then another meeting will be necessary. Attorney Burke advised Terry that she not waive her right and only stick to what is on the notice.
The Board discussed six listed items and the next step is to discuss whether any disciplinary action should be taken such as verbal or written warnings, suspension, a performance improvement plan or termination. Justin summarized all of the items discussed tonight and explained that he felt feels that not showing up for work was not a bona fide case of insubordination because Terry had offered a counter proposal, which Justin had said the Board would consider at its meeting and get back to Terry. Justin feels that moving forward if the Board needs to meet with Terry a meeting must be set for a day that works for all parties within one week. Justin stated that the Board needs to better communicate appointed positions and that the Boards and Commissions list is far from complete in its current state and should be updated by the middle of November as Terry agreed could be done. Justin summarized that the IT issue will be addressed by the Board’s recent decision from last week: allowing Tom Roy access to the Clerk’s computer and Terry has the right to be present. The last item was against the procedural guideline recommended and the Board is aware of the mistake and Terry needs to be more careful moving forward. Susan asked how we should address instituting better communication to instill confidence with a clear and accurate answer and more efficiently deal with items in a timely manner.
Scott said everyone needs to understand there are great communication issues and animosities in the building and everyone in the building needs to remember they are part of a wheel and all need to work together to keep moving. Scott stated that everyone needs to communicate better and Terry should be able to have friendly communications via email with the Town Administrator so that everyone can get back to work and put aside differences. Susan agreed and asked Terry if she was going to require a letter notifying her of a meeting and the items to be discussed every time. Terry said that she used to meet with the Board regularly and report what she did for the week and what her goals were for the next week but subsequent Board members decided they no longer needed this. The Board agreed this type of communication would be helpful.
Justin said the Board has documented a few issues tonight that need to be addressed and if those performance issues can be worked on and the work product and communication improved it will help everyone move forward.
A motion was made to dismiss from the meeting the Town Clerk and her counsel from the Executive Session. The motion was seconded and unanimously approved.
A motion was made to move the approval of Executive Session minutes of 8/31/22 from open meeting to the current Executive Session, and the Board will return to open session after. The motion was seconded and unanimously approved. A motion was made to approve the executive session minutes of 8/31/22 as edited but not release them to the public. The motion was seconded and unanimously approved.
A motion was made and unanimously approved to adjourn the meeting at: 7:45pm
Submitted by:
Melissa Noe, Town Administrator
Approved by:
Monterey Select Board
cc: Website (www.montereyma.gov)
Select Board Members
Minutes Book
Town Clerk
Any documents used in the meeting are listed below and are available by request at town hall.
- Executive session notice
- Office hour proposal email chain
- IT email chain
- Annual Town Meeting email