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Selectmen Minutes 09/18/2014

Chichester Board of Selectmen
Minutes of Meeting
Thursday September 18, 2014

Member Present: Richard DeBold, Michael Paveglio, Jeffrey Jordan, Town Administrator Jodi Pinard

Others Present: Lucille Noel, Donna Chagnon, Mike Mobbs, Diane Mobbs, Tom Houle, Philip Hitchcock, Ann Davis

Call to Order: Mr. DeBold called the meeting to order at 4:00pm – Mr. DeBold stated, “This meeting is not a public hearing, this is a public meeting on a consideration of a disciplinary action regarding the Road Agent.  He stated that there will be not public comment or testimony taken during this meeting.

Consideration of Disciplinary Action

Mr. DeBold addressed his comments directly to Road Agent Plunkett stating that this is an issue that has been in question for some time regarding concerns about roadside ditchings, placement of ditching and your answers to the Board of Selectmen when asked about ditchings.

Mr. DeBold stated, “That Specifically on June 10, 2014, you were asked by Selectmen Paveglio where ditchings were going from that day. I believe you were working on Bear Hill Road and I believe your answer was the ditchings were going to the shed and when on the other side of town Mr. Mixer’s residence will sometimes be used to drop the ditching material as well. I am going to screen the ditching material at the shed for whatever top soil I can get. So your answer on that night, June 10th, was the ditchings were going to the shed because you were not working on the other side of town. Some allegations were made to the Board of Selectmen by members of the public alleging that ditchings were going to other places besides the shed including the property across from your house. There was mention of witnesses to that activity.”

Mr. DeBold explained that the Board has done an investigation into these allegations and as a result we have found that you were not 100% forthcoming in your answers to the Board and therefore should consider disciplinary action. Since there is disciplinary action being considered we are giving you the opportunity to discuss with us the reason as to why we should not follow through with this disciplinary action.

Mr. Plunkett stated, “I would like to see the investigation notes as well as my counsel so I know what was actually said, or seen. I do not know what you want me to answer. I have stated what the facts are and what happened on that day. This has gotten twisted around. Things have been changed. There have been change of statements and change in questions that have been asked. I stand by my statement. I have written up an entire list of where things go and a list of 32 places that I usually dump ditching. These places are by memory from 2009 to today. I stand by my statement. You asked me if I had dumped at my property and I adamantly deny it. I have not dumped at my property. You asked if I dumped at my property that day and I stand by my statement that I have not dumped ditching on my property. There was an accusation that a driver was seen dumping on my property. If you can see the look on the face of the driver then you know who the driver is. There are only three of us. I don’t believe that accusation. What are the other accusations? What do the statements say? Do you have pictures of the dumping occurring? I have read the witnesses names and they are all family members. I can’t accept that as eyewitness statements. It is also 8 weeks after it happened.”

Mr. DeBold stated, “We have other testimony from people other than just those four people”.

Mr. Paveglio stated, “The road agent is an elected official and we are also elected officials everything must be held in public with the exception of the investigation. We (Board of
Selectmen) have been advised that we do not have to provide the investigation materials to you at this point”.

Mr. Plunkett stated, “That is what I am going to tell you and I stand by my statement”.

Mr. DeBold stated, “Let’s be clear that on June 10, when you were asked where all the ditchings were going all ditching went back to the shed”.

Mr. Plunkett stated, “The ditchings went back to the shed. There were no ditchings dumped on my property”.

Mr. DeBold stated, “Or across from your property”.

Mr. Plunkett stated, “You asked if I had dumped ditchings on my property and there were no ditchings dumped on my property that day”.

Mr. DeBold stated, “We are sticking to June 10, and at that meeting you were not asked if you had dumped ditchings on your property or the property across the street”.

Mr. Plunkett stated, “That is correct that was asked at the next meeting. I’m just stating for a fact that this was brought up multiple times as to who dumped on my property. I stand by my statement”.

Mr. DeBold stated, “I don’t want to sound like a broken record but the Board is talking about June 10, and where the ditchings went on that day. You are stating that they all went back to the shed and nowhere else on that day”.

Mr. Plunkett stated, “That’s correct. It was stated that we were done ditching on Bear Hill at that meeting and that was incorrect. We had just begun ditching it was Tuesday and it had been raining the day before. It was stated that there was very little ditchings at the shed but this was first day that we had begun. It had also poured that morning”.

Mr. DeBold stated, “I do not believe the Board is concerned about where the ditchings are going, it is an issue of if you were completely forth coming to the Board in your answer. I think what is troubling and hard for us to put our hands around is that we expect the employees and elected officials to speak honestly and truthfully to the Board when asked a question.”

Mr. Plunkett stated, “As I look at it I have. I always tell you what is going on. I have never veered from that.”

Mr. Paveglio stated, “I just want to reemphasize that it is not about the ditchings. That it is about being forthcoming in your answers to the Board.”

Mr. Plunkett stated, “I have always been forthcoming with you when you have asked me questions. I always explain what I do and how I do it.”

Mr. DeBold stated, “I am going to be honest with you and tell you that I like relying on the Town Attorney as I am not a lawyer and there are so many things to be considered in a situations like this. I tend to agree with you that you are sort of a defendant. I agree that you should be able to talk with those people involved in the investigation. But I have to err with the opinion and the advice of the Town attorney.”

Mr. Paveglio stated, “Technically you are not an employee of the town and if you were we would not be having this in public. But since you are an elected official this is in public. If you were to appeal our decision your next step would be the court system. That is where we are coming from regarding the investigation materials. We believe we had enough evidence that you were not 100% forth coming.”

Mr. Plunkett stated, “That is your choice.”

Responding to some muffled comments from the audience, Mr. DeBold stated, “that if the public does not adhere to the rules that you will be asked to leave the meeting.”

Mr. Plunkett asked, “What RSA are you making your decision under.”

Mr. DeBold stated, “It is RSA 231:62, Highway Agents. It talks about the road agents and it states under the direction of the selectmen that this falls. It is supervision and under supervision would be discipline.”

Mr. DeBold stated, “I believe that the investigation is complete and I believe the board is in agreement on the findings that we feel you were not 100% forthcoming to the board June 10.”

Mr. Jordan stated, “Not the whole board.”

Mr. DeBold stated, “I thought for discussion you were at least understanding of the situation.”

Mr. Paveglio stated, “This was a proposal and we have given the road agent a chance to respond and now we have to vote on it.”

Mr. DeBold stated, “This is the difficult part Jim and I am going to say for the record you’ve done a great job in town. I have been on the board 12 years and I have seen a number of road agents and you were a breath of fresh air when you came on. Previous road agents were difficult. So this is a difficult situation for me you were a friend and we have worked well together but I honestly believe from the investigation that there was a point that you were asked a question in a public meeting and you were not truthful and honest with us. I believe that needs to be recognized and needs some form of discipline. We cannot have that. What I struggled with tremendously over the last few days is the level of discipline. In this proposal it states 3 day suspension without pay. I struggled with that terribly and I voted for that in the beginning just to keep the discussion going. I’m still not sure that is what I want to do. That is still only for consideration and we can vote on another level of discipline tonight.”

Mr. Plunkett stated, “I have an issue with #2 improve and maintain your performance. How you are going to judge that. Does the town have a performance evaluation form for this and if they do where was I, where am I now. I have never seen anything and you cannot just leave that like that. It leaves it open.”

Mr. Paveglio stated, “That is referring to being 100% forthcoming. That is what the intent of that is.”

Mr. Plunkett stated, “That could be taken out of context and used in a different ways. You can say to me you are not working to the expected level.”

Mr. Paveglio stated, “Your expected level is to be 100% forthcoming.”

Mr. DeBold stated “I understand what Jim is saying and it is ambiguous. The board can change that we do need to make sure we are all in agreement to what that says.”

Mr. Plunkett asked that be reflected in the meeting minutes that #2 is specific to truthfulness, honesty and being forth coming in your answers to the board and the public so that it cannot be misconstrued down the road.

Mr. DeBold stated we will change #2 to reflect truthfulness, honesty, being 100% forthcoming. “I have stated I’m happy with your job performance over the last 5 years. That’s why I am struggling with this and I feel that a 3 day suspension without pay is a bit drastic and maybe something in between. I am leaning toward some type of written warning to be placed in your personnel file about this incident and what was found and what we believe. On June 10, 2014, at the Board of Selectmen’s meeting we believe that you were not 100% forth coming with this.”

Mr. Paveglio stated, “The severity of the discipline is important that is my opinion. It is the same as saying to department heads that it is ok to not be forthcoming once but if you do it twice we are going to discipline more severely. That is why I believe this rises to the suspension level.”

Mr. Jordan stated, “This is a serious situation. If we did a written letter in his file how long would that stay in his file? I know after a certain amount of time that letters have been removed. I don’t think any of this stuff rises to the level or that this should follow behind him if he applies for another position.”

Mr. DeBold stated, “I believe that is something that we could put in the letter such as a certain amount of time it can be removed from his file.”

Mr. Jordan asked, “If one votes for the letter, one votes for the suspension and one vote for nothing then where are we at.”

Mr. Paveglio stated, “That is a good question.”

Mr. DeBold asked, “Mr. Jordan you wouldn’t even consider a written.”

Mr. Jordan stated, “I might consider it but I want to know how Jim feels.”

Mr. Plunkett stated, “I agree to disagree and this seems like what you have decided to do. I have no recourse over any action you take. So what I say doesn’t really make a difference. So it seems like you have made of a judgment call already and I agree to disagree.”

Mr. DeBold stated that we are a board like a legal court. We hear testimony and then must make a judgment.

Mr. Plunkett stated that I would like to see the evidence and I disagree with what you are going to do but as you just said you are like court and there is nothing that I can do.

Mr. DeBold stated that he was going to let the board make final statements and then they will vote on the discipline or no discipline.

Mr. Paveglio stated, “I have made my statement.”

Mr. DeBold stated, “And you still believe a 3 day suspension without pay.”

Mr. Paveglio stated, “Yes.”

Mr. Jordan stated, “That I did not sign this one and asked is it true that Jim will not be able to see the evidence.”

Mr. DeBold stated, “Yes that is true per legal counsel opinion. But as I said earlier I think he should have but I have to err with town counsel. Maybe we can talk with town counsel again.”

Mr. Plunkett stated, “Or maybe my counsel can talk with the towns because he was asking what the evidence was. You don’t go into court one sided. Both sides get the evidence and I have yet to be shown anything other than my statements. I’m taking your word for it.”

Mr. Jordan stated, “How is a man supposed to defend himself without seeing all of the evidence?”

Mr. DeBold stated, “I understand your argument and I sort of agree with you. Maybe at a later date we can figure that out and counsels can share.”

Mr. Plunkett stated, “I would like that. I think it is owed me.”

Mr. DeBold stated, “I don’t disagree.”

Mr. DeBold stated, “Gentlemen we need to wrap this up. This is a serious matter I honestly believe from what I know Jim, you were not forth coming with us on June 10. But I want to take into consideration what you have done for the town over the past 5 years and your job performance. I will not vote for a 3 day suspension without pay. But I will and I want too because of what I know about the investigation I will strongly recommend a letter of reprimand be placed in your file citing this case and what the conflict and issue was. Going forward I can only implore upon you that you stay honest and forth right because that is the way we have to handle ourselves.”

Mr. Plunkett stated, “You have to realize that for 6 years I have made it a point not to do anything on my property or on the road in front of my house just for this reason. I don’t do anything. They mowed it once for this exact reason. But that is neither here nor there.”

Mr. DeBold asked, “Does that apply to the property across the street.”

Mr. Plunkett stated, “That applies to the whole road frontage I own both sides of the road. The town does not do a thing from point A to point B.”

Mr. Jordan stated, “I would not vote to discipline until he gets to see all of the evidence against him. I want to hear what he has to say. I understand the town attorney does not agree but I think he deserves chance to defend himself.”

Mr. Paveglio stated, “I do agree but it is the circumstances around the evidence and I want to be very careful about how I say this. There is someone I want to protect and it is a legitimate concern. It is an employee of this town and I am very concerned about that.”

Mr. DeBold stated, “I believe that is why the town attorney has advised us this way. It seems to me that we are in unchartered waters. I did not expect this but it looks like we would be at a stalemate at this meeting at this point. I don’t know what we do. Do we recess this and have another meeting?”

Mr. Paveglio asked, “Do you deny that we have evidence to support this?”

Mr. DeBold stated, “I feel on June 10, Jim Plunkett the Road Agent was not truthful with us. But I have to look at the man and what he has done. I am using that in my decision. I think that he is getting the message that we want to work with him and it must with truthfulness. I don’t deny we have an issue. But I don’t think it rises to the level of 3 day suspension without pay. We are at a stalemate. Do you have any advice Town Administrator Pinard?”

Mrs. Pinard stated, “If the Board cannot agree it would be either you recess the meeting and wait to hear from legal counsel. Maybe Jim’s legal counsel can reach out to the town’s and see if they’re going to give him the evidence or if they will agree to what he can see. At this point I honestly do not know. If you have a motion and don’t have a second the motion dies. If you get a motion get second and the motion doesn’t pass. You kind of walk out of the meeting where walked into the meeting.”

Mr. DeBold stated, “Jeff I don’t understand you have seen what the evidence was.”

Mr. Jordan stated, “What is on this paper here does not reflect anything and isn’t what he should be disciplined for and it’s a separate issue.”

Mr. DeBold stated, “But this states based upon the answers you’re provided the board on June 10, 2014, as well as the outcome of the investigation, and the severity of the charges, you are. But we are going in circles. I don’t know. We are going to need to close the meeting.”

Mrs. Pinard stated, “Consult legal counsel.”

Mr. DeBold stated, “We will close the meeting and talk with legal counsel. I don’t know how that is going to change anything if he sees the evidence.”

Mr. Paveglio stated, “Based on that, maybe we should go into non-public and tell him. I do not want to do that in public because that effects a town employee.”

Mr. DeBold stated, “You have the right to go into non-public and it is your choice.”

Mr. Paveglio stated, “I am not stating we make a decision in non-public. I am just saying we disclose what was found in the investigation to him in non-public.”

Mr. DeBold stated, “You want to offer him the right to go into non-public for that one thing.”

Mr. Jordan stated, “Yes.”

Mr. Paveglio stated, “Yes.”

Mr. DeBold stated, “We could give you that information tonight.”

Mr. Plunkett asked, “What that would satisfy.”

Mrs. Pinard stated, “You need to consult legal counsel prior to giving any evidence as that was advised by them.”

Mr. Plunkett stated, “If you want to consult counsel and follow what counsel advises that’s fine it is not changing my statement. But if you, Jeff, and Mike want to hear what I have to
say to it that’s fine.”

Mr. DeBold stated, “I do not have a problem going into non-public because it is non-public and it cannot be discussed outside of non-public. Jim cannot discuss it outside of non-public.”

Mrs. Pinard stated, “That I am urging you to go into a non-public with me prior to going into one with Jim.”

Mr. Paveglio stated, “That we did have some strong legal advice on this.”

Mr. DeBold stated, “Then we need to talk with legal counsel. I’m sorry that this cannot be decided tonight.”

Mr. Plunkett stated, “That’s fine. I stand by my statements.”

Mr. DeBold stated, “That we will need to meet with you again. It will be a public meeting and not a public hearing.”

Mr. Paveglio stated, “That it would be in non-public if we disclose the investigation materials.”

Mr. DeBold stated, “That I wanted to thank everyone. I’m sorry that we cannot conclude this tonight. We will schedule the next meeting during work hours as well as this is an employee issue.”

Adjournment

The meeting was recessed at 4:46pm

Respectfully submitted,
                                                                Not approved until signed
Jodi Pinard, Town Administrator

                                                                                                                
Richard DeBold, Chair                        D. Michael Paveglio                               Jeffrey Jordan


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