Personnel Committee 10/7 - vote of "no confidence"

The following are the minutes from the 10/7 Personnel Committee meeting - agenda item 3 - vote of "no confidence."

3. POSSIBLE EXECUTIVE SESSION TO DISCUSS POLICE UNION
ACTION OF OCTOBER 2, 2009.

Attorney Dugas said that two questions were presented to him regarding this issue. One is the legal significance of the vote and if this has happened elsewhere. Mr. Dugas advised that the legal significance of a no confidence vote is none; it has no meaning whatsoever in the law; it has some political implications. In his experience he sees this with police unions using it as a tool and there are many examples which he cited, including New Haven, Stratford, East Hartford, Southington, Trumbull Police Department unions. However, the Town should still look behind a no confidence vote and see what the concerns are.

Mr. Altieri asked about action taken through outside sources in the State.

In response, Attorney Dugas said in most cases, things are solved from within. He has checked with the International Association of Police Chiefs in Washington D.C. for a sense of this, and they have a list of entities. In most situations everything is dealt with internally.

Mr. Ruocco asked if Town Manager Milone had made a statement in regard to the action taken by the police union.

Town Manager Milone read his statement into the record.

Mr. Ruocco asked if the Town Council body or as individuals should meet with union members directly, in executive session, to hear both sides. He noted the Councilors received correspondence from the union last week, and they want an immediate investigation.

Regarding executive session, Attorney Dugas advised the only thing the Council can go into executive session to discuss around this issue would be performance of an employee. In this case the person would be the Chief, and he has certain rights in that regard. Mr. Dugas would not encourage this meeting, and said the Town Manager is the Chief’s immediate supervisor and the person to deal with this. There is no technical legal standing, and he encouraged the Council not to go in this direction, and let Mr. Milone deal with him and address the issues. Mr. Dugas is always for the immediate supervisor to deal with an employee regarding an issue. As soon as you circumvent that chain of command and go to the Council, it will become politicized. Second, what is being done is empowering people to circumvent the chain of command using these avenues. The first time this is done there will be all sorts of investigations, hearings, etc. and people will keep coming to the Council and circumvent the chain of command.

On October 2nd, Mr. Ruocco stated the Council was given a letter from the president of the police union and he questioned whether this letter is public.

Attorney Dugas said once it is in the hands of the Council it is public.

Another letter was referred to in the October 2nd letter, and Mr. Ruocco said he has not seen that letter, and asked if this would also be a public document.

Mr. Dugas would have to see this document. When you are dealing with documents related to performance, Mr. Dugas said you are dealing with an exemption under the Freedom of Information Act. For the most part it is public, but some things may cross the line where there is no expectation of privacy as a result. The letter is probably a public document, but he needs to look at it. There is a process of notifying the employee and determination of anything in the letter that is personal or confidential.

When he met with the Council in July in executive session, Mr. Milone said the discussion on the summary of issues was from that document. It was not handed over because the communication between the union and him was to keep it confidential. Once it is in his possession he has not control over it…the law determines how it is handled.

Mr. Ruocco asked about proposals to resolve this matter and if it can be in open session.

In reply, Mr. Dugas said “yes” but normally personnel performance issues are dealt with on a confidential level, and it would be unusual for them to be in open session.

Mr. Hall asked if the Chief’s contract is public record.

Mr. Milone said it is public record.

In the letter, Mr. Dugas some things are open, some are redact able. Under State Statute 7-278, and Mr. Dugas said there is an argument to waive the statute under the contract, that at the end of the contract the person waives rights under this statute.

Mr. Milone advised that the only contracted employee in the Town is the Town Manager.

Under Section 7-278, Mr. Dugas said the police chief can only be terminated by the appointing authority after a full hearing. The statute governs termination, and anything short of termination is not governed by the statute.

Mr. Slocum asked about a third party inquiry into the allegations or objections raised by the union. And, is it typical for a consultant to come in, and how to go forward with an impartial inquiry, with the Council seeking findings. He noted that Attorney Dugas said this action has no legal significance, but has political significance, and he sees a host of issues which could be legal.

The 1991 situation in Madison CT was cited by Attorney Dugas when the police chief was terminated, and this took 4 years, cost hundreds of thousands of dollars and tore the department apart for years.

Mr. Slocum stated that, to him, it is not the goal of the Town Council to jump to the conclusion to fire the chief or police officers…but there should be a meeting of the minds. In a fact finding endeavor he asked if there is mediated determinations for efficiencies in the department, recommendations to the Council or Town Manager for the department to work more efficiently.

There are two things, and Mr. Dugas said the Council is talking about the performance of an employee, the police chief, and about an organization coming in. This is done on the operational side of things, and performance is different from operational things, and this is sometimes done by departments. In terms of performance, it is different. The supervisor has the authority to take disciplinary action, verbal warning, suspend, up to termination. In talking about termination, there is a statute which essentially says the appointing authority. That entity would prefer charges, hear evidence, and make a determination. Mr. Dugas explained that the only time he was involved with a third party involvement was because all the would be participants had expressed opinions ahead of time. Therefore, it was established there was bias on their part, they had to be recused, and the matter went to an independent third party.

Mr. Slocum asked about the union issue going to a fact finding, and it being an in-house operation, with feedback to the personnel director and Council.

It was stated by Mr. Milone that at the same time there could be participation of an independent third party to assist in the process.

Ms. DeCaprio commented on her understanding that this is a major issue and the recommendation of Attorney Dugas is not to set up committees, etc, but possibly use a third party to come in.

With handling this matter through the chain of command, Mr. Ruocco asked if it could still be seen as impartial.

Mr. Dugas said the only time you have impartiality is someone predetermining the issue. As long as there is an open mind, without a financial interest in the outcome, there is impartiality under the law.

Mr. Altieri questioned who says these things, and who these entities would be.

A case was cited by Mr. Dugas in Naugatuck CT where someone ran on a platform that the chief has to go and he would make it happen. When the time came for the hearing the chief’s lawyer wanted this person recused, and he declined. It went to court, and it was determined there was prejudice by this one person, who also prejudiced the others, and the whole process was tainted. It was thrown out and started all over again.

Mr. Slocum asked about being unhappy with a manager and there is proof…who looks at the proof and evidence…and deciphers it. He wanted to know where we are in this process.

In dealing with fairly routine stuff happening between supervisors and employees, Mr. Dugas said whoever the person reports to should deal with it. The only time to bring in an outside organization is with criminal allegations, such as what happened in Madison, CT when the State Police were brought in. For the Cheshire situation, there is nothing remotely close to criminal allegations.

Mr. Sima said it comes down to a morale problem in the police department, with 42 officers saying there is a bad work environment. He questioned what will keep officers near the end of their career from just retiring, or others fully trained going to other police departments, with Cheshire having a skeleton department. He asked if this comes into play.

Attorney Dugas said this is part of the management of the situation. In any organization there is a first line manager, some producing good bottom line results, but not good in other regards, and pluses and minuses must be looked at. This is something to be looked at and be managed.

Mr. Sima said none of this impacts the result of what you can do with the chief at all, and he wants to know where the Town stands if there is a big problem.

According to Attorney Dugas the standard is just cause, and he could not read a litany of what this means. It is a good and sufficient reason with backup, notice and opportunity for someone to change whatever the problems were...not a problem because someone says so, but in the eyes of the manager it is deemed to be a problem. With the chief of police we don’t get there until there is hearing, from which they have a right to appeal to Superior Court. On the one hand just cause is not like a criminal standard, it is a good sufficient reason. When you get before a judge and say you fired someone, and want the judge to bless it, they will look at it like an arbitrator would. A judge would ask if the person was told about the problems, was support given, was opportunity given, and how serious were the problems. The judge will agree or disagree with the termination.

Ms. DeCaprio said her understanding is that Attorney Dugas is for the Town Manager, as immediate supervisor, continue to do what is being done. Also, there are other tools available outside of termination.

Stating the matter should not be ignored but looked into, Attorney Dugas said some things may be minor or not. The manager has the responsibility for correcting issues, and make a decision that negatives outweigh positives and something should be done. This would start the process being discussed under the statute.

Mr. Altieri noted that the Town Manager has met with the union representatives, police chief and representatives of the police officers. From his discussion with Mr. Milone, the situation is being intensely supervised than other situations. He has had the chief and the union people in a meeting.

The Council was informed by Mr. Milone that there was one meeting with the chief and the union leaders. Another meeting was scheduled and cancelled. There was discomfort, and Mr. Milone felt in order to bring about some kind of the seriousness of this it was important for a discussion among union leaders and the chief. Union leaders were uncomfortable with this. It took many meetings for him to get to a point to explain to the union leaders that the only way he could get to really address the issues was for the union to tell the chief what they told the Town Manager. The union was uncomfortable confronting the chief with Mr. Zullo and him present to state the issues for a clear venting of the issues and break down of the barriers. Mr. Milone told the union leaders that to resolve this we must sit across the table, and he must be trusted that there would be no repercussions in being honest and forthright.

Mr. Altieri stated that everyone is concerned about what has happened, and the vote of confidence was surprising in the numbers. He asked Attorney Dugas for advice about going into executive session for further discussion.

Attorney Dugas advised the Council that executive session is for certain reasons, and he is hearing one of performance of an employee, and this is the basis for executive session.

In order to vent out the issues in terms of performance in executive session, Mr. Altieri said the Council could then come out and outline recommendations.

Mr. Ruocco stated that Town Manager Milone, the chief and union leaders should meet to review the situation.

Mr. Zullo advised that the union cancelled the October 1st meeting with him and Mr. Milone.

Mr. Ruocco said he wants to know specific performance issues, and the Council needs to know them, and he does not want to deal with hearsay.

Stating his agreement, Mr. Altieri said the Council needs to review performance issues in executive session, and move forward. At this time the Council does not know what is rumor or fact or hearsay. There may not be a definitive answer because all parties are not in a room at the same time.

MOTION by Mr. Hall; seconded by Mr. Dill.

MOVED that the Town Council enter executive session to discuss performance issues and issues ancillary to the police union’s vote of no confidence on October 2, 2009, to include Town Manager Milone, Personnel Director Zullo and Attorney Dugas.

Discussion
With the Council going into executive session to discuss performance of an employee, Mr. Sima asked if the employee has been notified.

Mr. Milone stated that the police chief has been notified.

PUBLIC COMMENT
Ray Squier stated that the Council should not go into executive session giving credence to a list of ideas. He said the chief is already under a cloud, and this matter should be settled at the managerial level.

In response, Mr. Hall stated that there are questions on how the union’s actions relate to Section 7-728 and the standards set forth. He disagreed with Mr. Squier’s comments. For the record, Mr. Hall said no one should take his motion as a statement of a pre-determination or determination on the outcome of the discussions.

VOTE The motion passed unanimously by those present.

MOTION by Mr. Ecke; seconded by Mr. Dill.

MOVED that the Town Council exit Executive Session at 9:30 p.m.

VOTE The motion passed unanimously by those present.

Tim White