Select Board Meeting Minutes 4/27/22

Minutes of the meeting of 4/27/22

Meeting Opened at: 6pm

Select Board Members Present: Steve Weisz, Chair, Justin Makuc

Select Board Members present absent: John Weingold

Also present: Terry Walker, Gary Shaw, Don & Ellen Coburn, Hillel & Janet Maximon, Shawn Tryon, Jim Hunt, Kyle Pettibone, Tyler Collins, Pete Wilson, Attorney Hennessey, Melissa Noe, Nancy Tomasovich, Jeremy Rawitz, Mickey Jervas, Stuart Litwin, Michele Miller, Peter Murkett, Kevin Fitzpatrick, Karen Shreefter Blair, Chris Blair, Chris Andrews, Dave Driscoll

Also present remotely: Carol Welsch, Jonathan Loy & Christopher Riggleman, Lin Saberski, Pam Johnson, Paula Hartstein, Robin Fried, Sean Meullers, Stacey Wallach, Stephanie Sloane, Susan Cooper, Anastasia Coulombe, Heather Bellows, Ellen Coburn, Barbara Swann, Bob Carlson, Bonner McAllester, Cara Tryon, Bob Cutick, Deborah Slater, Carole Clarin, George Cain, Ilene Marcus, Janet Jensen, Joe Baker, Kevin West, Jeff Zimmerman, Nadia Makuc, Michael Banner, Peter Grealish, Scott Margrol, Chief Backhaus, Sergeant Fahey, Stephen Moore, Tim Lovett, Virgil & Lis Stucker

Steve began the meeting reading the Open Meeting Law regulations regarding public participation.

6pm:

1. At the recommendation of the Police Chief, a motion was made to appoint Mitchell Hamilton as a part time police officer for a one year probationary period.  The motion was seconded and approved 2 – 0.
2. At the recommendation of the Town Clerk a motion was made to appoint Aldeth M. Lewin as Election Warden for a 3 year term. The motion was seconded and approved 2 – 0.
3. At the recommendation of the Town Clerk a motion was made to appoint Aldeth M. Lewin as Election Worker for a 1 year term. The motion was seconded and approved 2 – 0.

The Board discussed entering executive session pursuant to G.L. c. 30A, sec. 21(a)(1) to formally discuss the Investigation Report provided by Green & Hafer, LLC. as the investigators retained by the Town to conduct an investigation regarding complaints filed against Town employees.

Attorney Hennessey on behalf of Melissa Noe requested to the extent that the meeting is going to be held to discuss her character or employment, that it be held in open session.  The other employees notified of the hearing, Shawn Tryon, Kevin Fitzpatrick, Terry Walker, Steve Weisz and Justin Makuc also agreed to hold the meeting in open session.  Justin questioned if town counsel drafted the Executive Session notice sent to all employees, Steve replied that the notice was the same text used for previous meetings that were also for this purpose.  Justin thought the Board was going to meet individually with each employee as discussed on March 23^rd at an executive session to dispose of the complaints based on the report findings and to determine whether, if any, administrative action would be taken and he was not sure that the notice covered this type of meeting.  Steve disagreed.  Justin read Attorney Maser’s recommendations from March 23^rd which included the Board distributing redacted versions of the Report to each subject of the Report, meeting individually with each subject of the Report, and being able to take corrective action if they so choose.

Steve said the recommendations are just that, recommendations and the Board has the option to choose what they would like to do, as the governing body.  Steve then read the following into record: “For many years of my life I was a professional, licensed Private Investigator.  During that time, I was taught to think of an investigation as a ladder.  A ladder to the truth, or at a minimum the understanding of events that lead to a specific conclusion. It’s apt analogy. For if a ladder is to be truly useful & safe, every part of it needs to be well built.

After a review of the Investigation report funded by the Townspeople of Monterey, and in my personal and professional opinion, we have a ladder is missing a number of wrungs and parts of it are of questionable quality. Let me be clear, this is not a condemnation of the entire report, nor should it be concluded that the taxpayers of Monterey have spent their money in vain.

The conclusions of the report make some good recommendations, ones that I would hope the next Selectboard will implement without delay.

Dwelling on other parts of this Investigation Report, especially for personal or political reasons, is akin to standing on an ill-constructed ladder and rocking back and forth.  It perpetuates an environment where no Monterey employee can feel safe.  Where the people we count on to serve us, are constantly in fear of losing their job, or being harassed by members of this body, other employees and the public.

Is that what we really want to accomplish, here?

This town needs to focus on creating and maintaining an environment for every employee to thrive, be happy, work as a team, and understand the goal of making Monterey the best that it can be. Every employee needs to be treated with respect, and yes, dignity.

It is time to move on, Monterey.

It is time to move forward, Monterey.

I hereby make a motion to formally ‘end’ the investigation of all town employees today, and on May 10, 2022, to release to the public the Investigation Report as received by Greene & Hafer, LLC on March 17, 2022, with Section “B”, of the report entirely and permanently redacted.

In addition, all itemized invoices and Executive Session minutes relating to this report are to be released to the public, on that day.

Anything less is a continuation of discord and disservice to our town.”

Justin did not second Steve’s motion “to formally ‘end’ the investigation of all town employees...”

Nancy Tomasovich said that the engagement letter with Greene & Hafer says that once the report is issued the investigation is closed so why would Steve be making a motion to close the investigation.  Steve responded that he did not have the engagement letter readily available but that Town Counsel stated that the Board would need to agree to close the investigation.  Nancy also inquired as to why Town Counsel was not present tonight and Steve replied that this was a good question and they seemed to have had a scheduling conflict.

Karen Shreefter Blair stated that it was time to move on and the Board should do whatever they can to end this and what Steve read was perfect.  Stuart Litwin then commented that he felt Steve was personally determining that one section was being deemed invalid and he feels that the town should be given the whole report to make their own decisions.  Justin agreed that the report will have be minimally permanently redacted at some point but he did not think the Board had the authority to redact the report, it is up to the Public Records Law and any appeals to redactions would ultimately be ruled on by the State Supervisor of Records.  Justin again questioned if this and felt that the meeting was not posted and noticed properly to allow for administrative action.  Steve said that the meeting was properly posted.  Justin then stated that over a month ago the Board decided to release redacted copies to all parties involved so they could then meet with them and Steve has done nothing since then to delay the process to move this forward.  Justin was concerned and unhappy about meetings not being called or posted.  Steve said all the employees are present tonight and asked if any employee present and involved in the investigation was asked if they are happy with continuing to discuss this and would they prefer to put this behind them?  Steve continued by stating that dissecting the report that may or may not have relevance, and is hurting the town and the employees.  Steve said that any employee can still request to have an individual meeting if they so choose.  Steve stated that this, ‘is killing the employees of the town and it’s the Select Board’s job to prevent that hurt.  Steve concluded by stating that, ‘the people that actually run this town and make it work are the employees and it is not dignified to keep poking at this investigation and that is why Steve is saying yes let’s end it and move on and move forward with the recommendations noted in the report.’

Don Coburn noted that what he thinks the town expects the Board to do is discuss and decide, and each of the employees has agreed to meet in open session tonight.

Gary Shaw inquired as to why Steve was suggesting to wait until May 10^th to release any redacted version of the report.  Steve noted that a month ago he made a motion to release the unredacted report to the subjects of the Report but he was out voted.  Steve said there are parts of the report that do not meet the standards of a proper investigation.  Stuart Litwin then accused Steve of trying to sweep things under the rug and wanted to know why Steve is doing this.  Steve replied that he takes issue with trying to sweep anything under the rug.  Steve said all the employees have been damaged in one fashion or another by this investigation and it is not doing the town any good to constantly keep poking at it.  Steve stated “it’s the Board’s job to make sure the town functions correctly and to help the employees work as a team which they can’t do if they are constantly under threat of an investigation.”  Steve also noted that just because someone wrote an investigative report does not mean they are true and complete findings.

Steve then offered to break out his motion into 2 motions.  Steve made a motion to end this investigation.  It was not seconded.  Justin asked if Steve thought it was legal to propose Administrative action tonight.  Steve said of course it is, and it was noted that all employees present had waived their executive session rights.

Justin then proposed a final written warning for Melissa Noe based on her retaliatory, intimidating, and coercive conduct as Town Administrator.  Steve stated for the record that this was the first time he was seeing this letter.  Michele Miller commented that she was heartbroken that anyone in the room would say anything about any of the people in the room the things that have been supposedly said or done.  She continued, ‘We can keep picking at this scab and parsing words and citing documents and hiring lawyers until we are really sick but Michele thinks there is maybe a nugget of something in what Steve has said that we should look at.  Michele thinks the dignified thing is to just quit this now, get the people all in one room to have them apologize to each other and get on with the business of the town so the people we rely on every single day can move on.’

Sean Muellers said that there is a lot emotion going on and from his perspective on the way to move forward is with radical transparency.

Steve then made another motion to formally end the investigation.  The motion was not seconded.

Ellen Coburn asked why people object to ending the investigation right now.  Justin stated that he wants everyone to take responsibility for their actions and make a commitment to change hurtful behaviors and in some ways we need to confront the issues head on instead of trying to move on from them.  Steve said he is named in the report and swore to take control of his actions and promise to do better in the future.  Steve said it is undignified to keep poking at this thing, we all made mistakes, people get into arguments, everybody understands the ramifications of making those mistakes and he believes in his heart that every employee present is committed to moving on and be a better person.  Steve then referred again to the recommendations made and how this Board is working to implement some and the next Board should continue to implement the rest.  Steve then asked if there was an employee present that did not want to move forward without any action and all said yes they wanted to move forward with the exception of Terry Walker.

Mickey Jervas then asked about the recommendations made and whether they were employee specific.  Steve noted that the recommendation are not specific to one employee, they are broad recommendations for the town that include: mediation, adopting human resources, training for the Select Board, steps to take if an employee feels they are being harassed.

Nancy Tomasovich wants the entire report released that the town paid $16k for so the taxpayers can make their own determinations.  Steve then informed the public for the record that there were some individuals that had complaints made against them that were not called to be interviewed by the investigator, where is the dignity in that?  Those employees were not given a chance to defend themselves.  Nancy then rebutted with she was under that assumption that the Seletcboard controlled who was interviewed or not and that everyone named in the complaints was interviewed. Steve said no and that is one of the things that bothers him.  More than one person named in the report were not afforded the opportunity to provide their side of the story and defend themselves.

Don Coburn then suggested that Steve should read the proposed disciplinary letter Justin proposed and decide if he will second the motion to accept it.  If the motion is not seconded then no disciplinary action can be taken.  Steve would not second it.  Jeremy Rawitz then commented that the Board had to make a motion to go into executive session and the Board informed him that it was already determined in the beginning of the meeting that they would not be going into executive session as the employees all agreed to keep the meeting in open session.

Shawn Tryon, stated that he was never interviewed. He asked where is his dignity, because he did not get interviewed along with another employee that did not get interviewed who both had serious accusations made against them and this is obviously a very seriously flawed investigation because it was one sided and they did not interview everyone.  Shawn noted that the fire company was also named in the final report and they were never called to be interviewed or verify that the claim being made was valid yet the Board accepted it as fact.  Shawn said it’s time to end this investigation because this is not encouraging employees to want to give 100%.  Steve then made another motion to end the investigation.  Justin asked if Steve was going to read his proposal or should he just sign it himself. Steve said he wouldn’t touch that with a 10 foot pole.

Peter Murkett said that we have heard that people named in the report were not allowed to speak to accusations made against them and he does not understand why the Board would choose to create the appearance of sweeping something under the rug instead of rejecting the report that does not do its job. Peter continued by stating that ‘we paid money for a report that people were not allowed to defend themselves.’  Peter thought it seems obvious at this juncture that releasing the report would cause the people named, that have not been able to say their piece, to hire a lawyer to say their peace.

Attorney Hennessey then commented that on April 5^th a letter was sent to the Board containing a detailed rebuttal to the 20 page report disputing many of the factual findings and this is frankly a lawyers win case, the conclusion in the report says if this goes to litigation it will be a problem.  Attorney Hennessey said he is fine with releasing the report as long as the rebuttal is released along with it.  Attorney Hennessey stated that we should all try to avoid a tit for tat line by line dispute going forward and this should be ended tonight and if the Board does not do this it will just end up in court.  Attorney Hennessey also noted that a specific request was made of the Board in the April 5^th letter to rescind/reverse its decision to accept the report as fact.  Steve noted for the record that the vote was 2 – 1 to accept the report as fact with himself voting no.

Mickey Jervas asked if the Board could add to the report the words of those who were not interviewed but had a complaint against them; Steve said that the final copy of the report has already been received. Don Coburn then requested that Steve at least read the proposed letter Justin drafted and determine if he would second it or not.  Steve said he will not be seconding any letter that only addresses action against one employee as he believes that culpability lies equally with all employees named in the report including himself.  Steve also feels that this report should not be accepted as fact and made a motion to accept the investigation but not as a matter of fact.  Justin asked a logistical question about whether one member can sign the letter he proposed without majority select board support.  Steve said that Justin is free to sign it himself and it will become a public record but it will not be an action against the employee.  Paula Hartstein then expressed concern that it was disrespectful of Steve to not read the letter, he can still disagree with it and choose not to second it.  Steve said he would read it at some point but the board never contemplated sending specific letters to any town employees and the investigator’s report was not directed toward any single employee.  Steve understands that there may be employees here that some people may not ‘like’, however he was against sensationalizing these proceedings.  Speaking of dignity Steve asked everyone to imagine being a ‘singled out’ employee in the proposed warning letter that has dedicated their professional life to Monterey for 15 years. Steve stated that that type of commitment represents dedicated work for the Town.  Steve continued responding to the negative statements against Shawn Tryon and the Tryon family; and that no one will ever know the lengths Shawn has gone for this town saving the town thousands and thousands of dollars.  Steve stated that it was not dignified or American to not provide Mr. Tryon with the opportunity to face his accuser and give his side of the story.  Steve stated that it’s the Selectboard’s job to continually ask the question, “will this help Monterey”. Steve stated that picking apart an employee that didn’t have a chance to defend himself does not do that.

Gary Shaw then asked, having not seen the report, was a conclusion reached about Mr. Tryon or anyone else that had complaints against them. Steve said that yes the report said every single employee made a mistake.  Shawn then said that yes it said in black and white he was wrong.  Melissa Noe added that he was also witness to incidents she was accused of yet he was not interviewed about those.  Gary acknowledged that this was not reasonable but said if it was 90% accurate you don’t throw out the whole report.  Steve said five employees had accusations against them and only three were interviewed.

Justin added that the investigator acknowledged that some complaints were not investigated as they were too trivial.  Steve said that in his experience as an investigator, you talk to everyone.

Justin then read again Attorney Maser’s recommendations from the March 23^rd executive session meeting.  Justin said he did not have any other administrative actions to propose, other than the proposed final written warning to the Town Administrator.  Steve made a motion to close the investigation and without action and move on.  Justin seconded the motion.  Gerry Clarin then suggested a motion to table the discussion.  Steve voted yes to close without findings.  Justin inquired as to what he meant by no findings, Steve explained he meant no administrative actions.

Justin was concerned that Town Counsel was not present to advise for an important decision and important meeting like this. Justin was concerned that Steve did not read his letter.  Steve then made the motion again anew to close the investigation with no administrative action.  Justin was concerned about the use of “no administrative action” as he signed the letter even though there was not a majority to approve it.  Justin expressed again that he is bothered that Steve has not even read his proposed letter.  Steve agreed to read the letter and invited everyone to take a bathroom break.

Steve has read the letter and said that a lot of what was written reflects Justin’s specific complaints against Ms. Noe.  He’s not discounting it and understands where Justin is coming from but in his opinion it should only be from Justin as it reflects his understanding of what went on, not the Board’s.  Steve inquired, that besides catharsis what does this letter accomplish?  Steve said that he believes that Ms. Noe and Ms. Walker should attend profession mediation or counseling as they are both valuable employees but need to work out some issues.  Steve said that more letters such as Justin proposed could be written to more employees.  Steve does not think it fair to single out one employee and with that understanding he thinks it best for everyone to move forward and he reiterated his motion to close the investigation without administrative action.  Justin wants to speak to town counsel prior to making that decision as he wants to confirm if a letter signed by one selectman is considered administrative action or not.  Justin said he would not propose any other administrative actions other than this one.  Steve then amended his motion to close the investigation.  Justin still wants to speak with town counsel.

Justin speculated that one of the reasons we are losing town counsel is because we did not follow counsel’s advice on how to deal with the investigation report. Justin wants to make sure things are done correctly.  Steve reminded Justin that the Board are the executives and make the decisions on how they want Monterey to work and if the Board wants to move on they have the power to do that regardless of what counsel says.  Justin became concerned about a rush to close this investigation , and Justin claimed that it is Steve who has refused to call meetings for a month and dragged this process out and said he will not entertain any more motions until he can consult with Town Counsel. Steve disagreed with Justin’s assertion. Steve made the motion one more time to close the investigation.  Attorney Hennessey then asked if since the proposed letter was addressed to Ms. Noe if he could look at it and see if she would agree to it being added to her file, the Board agreed.

Hillel asked Justin about the recommendations made by counsel on March 23^rd and thought that Justin said that the Board could or could not take administrative action if they chose.  Hillel said the lawyers have given the Board the freedom to do what they need to do and is baffled as to why Justin would need to go back to the lawyers since the power is in the Board’s hands.  Justin would like to be reassured by counsel that his proposal is the right thing to do on behalf of the town.  Hillel said if we keep postponing this there could be retribution or legal action taken in what he knows to be a horrible and biased investigation.  Hillel said that this was a real bad show of the Board when so many people are present tonight to come together and move on, not to find right or wrong.  Steve said that there was no legal downside to closing the investigation but Justin wants to hear that from counsel.

Discussion then ensued about the proposed executive session meeting for April 13 and how one selectman (John Weingold) acted on his own sending a notice to only one employee instead of all the employees as was agreed upon by the whole board.  Melissa Noe then asked why she was singled out and John Weingold thought it appropriate to serve her by the Berkshire County Sheriff’s Department; this was why the meeting on the 13^th was not posted.  Justin said he did not know why neither Steve nor John acted in accordance with what the Board agreed on March 23^rd and he did not serve the notice.  Steve added that John Weingold acted on his own while he was sitting in the Town Administrator’s office composing the letters to go out to all employees and if Justin wants to blame anyone he should be blaming John Weingold and speculated that this is probably one of the reasons why town counsel is not happy with Monterey.

Justin said that tomorrow will be six weeks since the Board received the report and he has not been pushing it off, postponing it or dragging it on. In fact, he has been pushing for the Board to meet and finish the process. Justin wanted to consult with Town Counsel to ensure that the process was proper.

Old Business

1. Review Human Resource proposals for handbook update and consider accepting the most responsive: This will be tabled until a new Board is in place.

New Business

1. David Driscoll complaints about the private water company, highway department and tree warden: David explained his concerns about water from the private water company when they flush their lines as well as an issue with some trees he feels should be taken down.  He would like to see the town bring in stone to reinforce the bank.  David understands now that the water company is private and separate from the town.  Director of Operations Jim Hunt was present as was the Tree Warden.  Steve suggested that Jim follow up with the Tree Warden and the Water Company and report back to the Board at a future meeting.
2. Town Administrator Items:
   1. Shared human resource update: Melissa reported that the 5 towns are in the process of finalizing the inter-municipal agreement and reposting the help wanted ad.  Interviews will take place on May 26^th.
3. A motion was made to accept the donation of a bench for the Town beach.  The motion was seconded and approved 2 – 0.
4. A motion was made to reappoint Chris Blair and Tim Lovett through September 15^th to the Conservation Commission.  The motion was seconded and approved 2 – 0.
5. Review Swap Shop committee interested parties
6. Review mail & correspondence to be sent:
   1. Randon Ziegler resignation
   2. Nate Sermini Resignation
   3. Open Meeting Law (OML) 2022-86 determination: The Attorney General’s office found the Board did not violate the OML.
   4. Counsel services inquiry from Attorney Kopelman and legal service proposal from Miyares & Harrington: The Board discussed when interviews should be held, if current counsel agrees to stay through the end of May they will not need to rush but if they will not interviews and an appointment will need to be made next week.
7. Comments & questions from the public
8. Approve minutes of 4/13/22: this was tabled until next week.

A motion was made and unanimously approved to adjourn the meeting at: 8:39pm

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.

1. Letter from Attorney Hennessy
2. Proposed final written warning to Melissa Noe based on her conduct as Town Administrator
3. Letters from Tim Lovett and Chris Blair requesting reappointment
4. Nate Sermini resignation
5. Open Meeting Law 2022-86 determination
6. Counsel services inquiry from Attorney Kopelman
7. Legal Service proposal from Miyares & Harrington