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Thread: The BO3 was fouled first by the Open Meeting Law, then by incompetence

  1. #1
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    Default The BO3 was fouled first by the Open Meeting Law, then by incompetence

    Many Wayland residents are taking strong exception to the process (actually, the lack thereof) employed by Selectmen Leard, Boschetto, and Collins (collectively, I'll call them "BO3") in terminating Town Administrator Fred Turkington's position with nearly no substantive discussion and in less than 18 minutes of open meeting.

    In my lay read of two relevant documents, I see two failings. One is outside of the BO3's control--the inadequacy of the Open Meeting Law for managing employees. The second was well within the BO3's control--at best, they misinterpreted what it means to terminate someone "without cause."

    OML

    Town boards are unduly handcuffed by the Open Meeting Law (OML) when it comes to managing employees reporting directly to the board ("direct reports"). In my opinion, within reasonable limits, boards should be able to meet with direct reports in executive session for the purpose of discussing job performance.

    The OML lists 10 "exceptions" for which meeting in executive session is allowable. Two of these exceptions are relevant to the management of direct reports.

    Exception 1 allows boards to meet in executive session "[t]o discuss the reputation, character, physical condition or mental health, rather than professional competence [emphasis added], of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. ..."

    Exception 1 does NOT allow boards to meet in executive session to discuss a direct report's job performance.

    Exception 2 allows boards to meet in executive session "[t]o conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;"

    Exception 2 creates something of a gray area, as I read it. Arguably, a "negotiation with nonunion personnel" (typically, direct reports to boards are nonunion personnel) *might* include a discussion about the direct report's performance. I'm not aware of any, but there may be precedent that establishes the allowance of such discussion one way or the other.

    Let's assume, however, that Exception 2 does NOT allow boards to discuss performance in executive session. In that case, their only option would be to begin the discussion in open meeting.

    WITHOUT CAUSE

    This brings us to the conduct of the BO3 at their open meeting on Monday, August 26. Some Wayland residents, perhaps including one or more members of the BO3, have argued that it would be impermissible, inappropriate, and perhaps inviting of a law suit to discuss the performance of a direct report who might be terminated without cause. They would be wrong on all three counts.

    The OML requires boards to conduct performance reviews of their direct reports in open meeting. In essence, the conversation that the BO3 elected not to have was a performance review.

    Let's imagine that the BO3 was dissatisfied with how the Town Administrator was carrying out their direction. In the case of the BO3, their definition of the "new direction" that Wayland should take appears to be primarily in the areas of transparency and financial prudence.

    It would be perfectly appropriate for the Board of Selectmen to discuss in open meeting differences of opinion they have with the Town Administrator in these or any other areas. They could then hear from each other, the direct report, and residents over a series of meetings. After said meetings, they might then take a vote (if a motion to that effect was made and seconded) on whether or not to terminate.

    Now, would the employee be on firm ground in filing a grievance, lawsuit, or other complaint? Well, let's take a look at the Town Administrator's contract as an example of this general question. Section VII.A.1 spells out what it means to be terminated "for just cause." "'[J]ust cause' includes, but is not limited, to criminal acts and/or acts of misfeasance or malfeasance, willful misconduct, conviction of a felony under federal or state law." [sic]

    No one is suggesting anything approaching "just cause." That leaves "without cause."

    There is absolutely nothing wrong with a board suggesting that the services of an at-will employee such as a Town Administrator are no longer needed for reasons A, B, and C. Doing so doesn't come remotely close to invoking "just cause." And doing so doesn't come remotely close to risking successful action on the part of the direct report. "Without cause" does not mean "without reason."

    With their hasty rush to decision, the BO3 failed their Town Administrator. They failed their constituents. And they failed their own platform of transparency and fiscal prudence.

    Yes, the BO3 acted within their rights. But they didn't act right.

  2. #2
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    Default

    After reading the transcript of the 8/26 meeting, it's clear that the BO3 didn't even understand what "cause" meant.

    Quote Originally Posted by {39:20} Doug
    With cause, I mean you start interviewing people, and start coming - and then you -I'm just looking at the language here. I guess if it's with cause you end up having to come up with reasonings why. But the contract as written -
    Mr. Leard, "cause" is a specific legal term that has to do with significant wrongdoing. Cause is not equal to reason.

    Quote Originally Posted by {40:44} Ed
    No, I have nothing really to add to what's already been said. I understand the motion to be made under the provision of the agreement that Fred I presume participated in drafting that allows for termination without cause. I think if somebody exercises that provision the whole issue of discussing causes or possible causes or imagined causes, whatever you want to say is really irrelevant, so I think the real question is whether there should be a vote to terminate without cause. I think that's what the motion here is.
    Now, Mr. Collins *may* understand what "cause" means, but his ramble about "discussing causes or possible causes or imagined causes" suggests otherwise. How he can say that "whatever you want to say is irrelevant" escapes me. Actually, it's profoundly relevant.

    Quote Originally Posted by {41:27} Tony
    Any debate or discussion on the merits puts both Fred in a bad position as well as us as a Town in a bad position with respect to making a motion without cause. If we want to make a motion without cause there should be no such discussion on the merits of his performance.
    Where is it stated in the Town Administrator's contract or elsewhere that "termination without cause" prohibits discussion of performance? One of the roles of the Board of Selectmen is to review the Town Administrator's performance. The Open Meeting Law requires them to do so in open session. By Mr. Boscetto's logic, it would be impossible for a board to conduct a performance review at all.

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