Letter To The Editor: Sherborn Personnel Board's Letter To The Board Of Selectmen

To: Sherborn Selectmen Tom Twining, Chair, Paul DeRensis           

The Sherborn Personnel Board would like to respond to your public allegations of our ineffectiveness and inappropriateness in managing matters of the Town that relate to our board.  Specifically, you have commented that we have left the

Town vulnerable to litigation and liability regarding our handling of two sexual harassment complaints; our lack or oversight of pay practices resulting in a federal audit by the Department of Labor at the Sherborn Fire Department; and keeping incomplete meeting minutes.

As we respond to each of the above allegations, we feel it is important that we remind you that the responsibilities of this board are governed by the Personnel By-Law and Personnel Administration Plan.

These documents require us to provide guidance and to solve problems brought to us by department heads and boards.  We also must maintain up to date job descriptions in order to ensure town employees understand their job responsibilities; consult on suitable salaries and hours worked; and make an annual recommendation for a cost of living adjustment (COLA) to the Town. 

Based on Selectmen Twining and DeRensis's public comments, it appears that they envision creating a different kind of Personnel Board with a much broader mandate and scope of responsibilities than those currently defined. The  Personnel Board sees that as worthy of discussion. The Selectmen may do this by rewriting the Personnel Bylaw with Town Meeting approval.

However at this moment it is necessary that we state publicly that this Personnel Board has discharged its responsibilities as defined by the Town’s bylaws.  In the last few years we have updated the Personnel Bylaw,  the Personnel Administration Plan, and the Personnel Procedures to keep them timely, current, and in line with municipal and employment best practices. The Personnel Bylaw and Personnel Administration Plan were approved by Town Meeting without objection from the Board of Selectmen.  With the exception of its annual COLA recommendation, the Personnel Board has engaged Town Counsel to review and comment on all matters it has brought before Town Meeting.  We are proud of the work we have done and make no apology for not doing what is beyond the Bylaw and Administration Plan purview.

At the BOS meeting of June 23, 2011 we were surprised to learn that you were dissatisfied with the work of this board and would not reappoint Grace Shepard. In subsequent BOS meetings in July and at another public meeting (SOS), many negative statements were made that extended to the entire board.   It is difficult to be judged retroactively as it were, for not doing what was never within our scope, and was never  asked of us or discussed with us. Also some of the comments the selectmen have made about the Personnel Board have been totally inaccurate.

The Personnel Board recognizes that the scope of the work, as defined by the Bylaw is modest, yet suitable to a volunteer board comprised of qualified Town residents. With that said, in a Town with much divided government and power, the Personnel Board has persevered to create a frugal and effective system for dealing with sexual harassment complaints which does not violate both confidentially and open meeting laws.

At this time, we would like to address  and respond to each of your allegations.

Complaint # 1:  Selectmen DeRensis and Twining have both spoken of their concern about the Town’s vulnerability to liability and litigation and how the Personnel Board has left the Town open to liability due to our inept management of sexual harassment complaints. Further, they allege that the Personnel Board failed to keep them advised of such concerns, and did not advise our insurance companies as the insurer requires notice of potential exposures. 

In response, we start with the Personnel Administration Plan, which states that any employee concern regarding sexual harassment should be reported “to any one of the following individuals,……the Town Administrator, any individual member of the Board of Selectmen, or any individual member of the Personnel Board.” There were two cases, both involving the Sherborn Fire Department, under the supervision of then-acting Fire Chief Jonathan Dowse. In both cases, Mr. Dowse properly notified the Town Administrator of each complaint and sought advice. The Town Administrator contacted the Personnel Board Chair orally. Although each case is different, our manner of approach was the same, therefore, we will take more time to discuss the first sexual harassment investigation.

When the Personnel Board was first notified of the first complaint, we planned to meet to discuss how to proceed as this was the first instance we had experienced of applying the new bylaw to a sexual harassment complaint. The Chair also consulted with Town Counsel. Town Counsel told Ms. Grace Shepard that the Personnel Board, as a whole, should not discuss the matter (this is supported by emails from G. Shepard 8.12.10, P Derensis 8.17.10, and Board of Selectmen minutes of August 18, 2010 “Town Counsel advised against the Personnel Board as a whole investigate the matter”) because we could not abide by open meeting law and maintain the necessary confidentiality of the parties involved.

The Personnel Board meeting on the complaint never took place, based on Town Counsel’s advice. Instead Town Counsel suggested that the Town engage an outside investigator for $3000. On August 18, 2010, Grace Shepard sent Selectman Paul DeRensis an email to update him on this matter. Ms Shepard’s email advised Mr DeRensis that we were told by Town Counsel to not pursue the matter any further; however, the Personnel Board reiterated its willingness to be involved.

The Board of Selectmen meeting minutes of August 18, 2010 say that Mr. Keyes, then the Town Administrator, brought the concern forward to the selectmen.  Mr. Keyes told the BOS that he was in contact, within 1 hour of learning of the complaint, with both Town Counsel and the Town’s insurance company. The meeting minutes also discuss a proposed contract from Town Counsel regarding an outside contractor to investigate the matter for an amount not to exceed $3,000. In lieu of spending the Town’s money, the Personnel Board, with Town Counsel’s support, suggested that one of its board members, as a Town resident, with necessary qualifications, would volunteer to conduct the investigation at no cost to the town. At this meeting, the Board of Selectmen unanimously voted to accept that offer and have one of the Personnel Board members investigate.

Subsequently, Mr. Ron Arigo conducted the investigation. In conducting the investigation, he met with both the complainant and the accused on September 9, 2010 and September 13, 2010 respectively. On September 16, 2010 he provided Dan Keyes and Jonathan Dowse, via a letter to Assistant Town Administrator Diane Moores, the result of the investigation and a recommendation for action. The matter was then left for Mr. Dowse and Mr. Keyes to manage.

It is our understanding that the matter was resolved and that Mr. Arigo’s recommendation was followed. It is also our understanding that the person making the complaint was dissatisfied with the result and made that known to Mr. Twining and Mr. Derensis.  It is disturbing that two members of the Board of Selectman take this person’s word and complaint more seriously than the careful and professional work of a Personnel Board member with years of professional experience.

As a result of the timing of this investigation, and a concern brought to the Personnel Board by Police Chief Rick Thompson regarding the lack of clarity as to whom a Town employee should bring a complaint, the Personnel Board went to work to revise the sexual harassment wording section of the bylaw. We advised the selectmen of our plan of action at the Board of Selectmen’s meeting of August 26, 2010.

There is no need to go into detail upon the second case, investigated by employment lawyer and Personnel Board member Judi Miller. But there are several points to be made.

• The BOS has publicly criticized the Personnel Board for allegedly failing to write a timely written report regarding the investigation of this second complaint.  In fact, the Town’s sexual harassment policy does not require the investigator to provide a written report.  The Personnel Administration Plan provides, “When the investigation is completed, the investigator will present his or her findings and conclusions about the facts of the matter to the appropriate supervisory entity or person or to the Board of Selectmen, or may seek additional advice regarding his or her recommendation from Town Counsel, as the investigator deems appropriate.” The language tracks the language contained in the model policy approved by the MCAD, the state agency that administers the discrimination laws. The intent is to allow the Town to discreetly manage such matters.
• In the second case, Ms Miller provided Chief Dowse promptly with an oral response that there was not a violation of the sexual harassment policy, and then followed up later with a written response affirming there was no violation.

Allegation # 2 involves the Federal Audit of Fire Department wage practices and the Selectmen’s allegation regarding the Personnel Board’s responsibility in not having reviewed all Town pay policies for FLSA compliance.

In response to your concern about our board’s lack of oversight of pay practices resulting in the US Department of Labor audit of the Fire Department, we respond that such oversight is the selectmen’s responsibility not ours. Pursuant to the current Town Administrator’s job description, as approved by you in April 2011, regarding “Personnel Management Responsibilities”, it states that the Town Administrator will “Manage the day to day personnel operations of the Office of the Board of Selectmen and administrator and coordinate with heads of departments, committees and commissions within the jurisdiction so that personnel practices are consistent with the Town’s personnel policies, state and federal law.”  Thus, the Town has given responsibility to its paid Town Administrator, and not to its volunteer Personnel Board, to insure that the Town’s departments are complying with the wage laws.

Further, the responsibility of the Personnel Board, as stated in the Personnel By Law, Chapter 20, Section 4c is to “provide advice to the Town, as requested, regarding any matters relating to the application of the Personnel Administration Plan.” Therefore, we do not have the authority to proactively provide advice, unless asked, and when asked, we engage to respond.

Allegation #3:

Lastly, in regards to the complaint that we have been incomplete in our meeting minutes, specifically not including information regarding the investigations of the sexual harassment complaints by committee members, the facts refute the complaint.  First, open meeting law requirements are met by draft minutes and those minutes must report actions and votes taken at the meeting, not discussion. At minimum, our meeting minutes satisfy the open meeting law and are in no way deficient.

Second, in regards to the investigations, each was completed by a member  of the board, acting - with your approval, as citizens of the Town, not as members of the Personnel Board. As stated earlier, Town Counsel advised the Personnel Board to not conduct the investigations in order to protect the privacy of the people involved. There were no meetings of the Personnel Board between 7.6.10 and 9.10.10. There were no board discussions.  The conversations were between the Personnel Chairman, the Town Administrator, the Chairman of the Selectmen and Town Counsel.  The discussions on how to proceed were at BOS meetings and are duly noted in their minutes. 

In conclusion, we dispute your evaluation of the Personnel Board in its totality.  We have no knowledge of any litigation nor liability we have caused or exacerbated. With regard to all matters that have come before the Personnel Board during the tenure of its current members, we have acted within the requirements of the Personnel bylaw and the Personnel Administration Plan. We are proud of the work we have done for the Town, and we deeply regret that certain members of the Board of Selectmen have chosen to ignore the facts and falsely besmirch our actions.

6 Exhibits

Personnel By Law

Personnel Administration Plan, section 24.

TA job description

8/18/10  BOS minutes

8/26/10 BOS minutes

Various emails