2016-07-29 / Front Page

Former selectmen air complaints about town procedures

By. Wm. Duke Harrington Staff Writer

KENNEBUNK — The number of former selectmen laying charges of impropriety on the head of Town Manager Barry Tibbetts has now doubled, to two.

At the July 12 selectmen’s meeting, Rachel Phipps, who sat on the selectboard from 1997 until 2001, questioned a four-year delay in securing an appointment to the town’s economic development committee (EDC).

Upon her initial application in 2012, Phipps was informed the committee held off on accepting new members while it debated “right-sizing” from 13 down to as few as nine members, while potentially reserving future spots for representatives of town neighborhood committees.

Upon the election of EDC co-chairman Blake Baldwin to the board of selectmen in June, Phipps checked on the status of her application, only to be surprised when a June 22 special meeting of the EDC was followed by a memo to selectmen the next day requesting a moratorium on appointments.

Phipps said she was dismayed to find only one reference to the EDC actually debating its preferred size between the 2012 and 2016 requests to freeze membership.

Because those two bookends coincided with her placement in the on-deck circle for the next committee appointment, Phipps said it appeared Tibbetts had contrived to keep her off the group.

Selectmen never voted to change the size of the committee and yet, even though four members have resigned since 2012, and both alternate positions were vacant, Tibbetts never alerted selectmen of a vacancy, despite a requirement in the town charter that selectmen fill all committee vacancies within 60 days.

In a July 19 email, in which he answered a host of questions posed by Phipps, Tibbetts said, “to the best of my recollection the committee had not restructured and was allowing members to term out of desire to reduce the size of the committee.”

However, it appears that not only did selectmen never authorize a change in EDC membership, the committee itself never formally voted on a change. Minutes from the July 12, 2012 meeting, missing from town records until Phipps began kicking up dust in recent weeks, notes a 7-2 vote to add three non-voting members from the local utility boards, but no vote on downsizing to nine members.

On July 17, EDC chairman Bob Georgitis, circulated an email saying he plans to present a proposal at the group’s Aug. 4 meeting to reduce membership to seven — four at-large, and one, each, from the Lower Village, downtown, and West Kennebunk neighborhood committees — along with the three non-voting utility board members.

Meanwhile, on Friday, July 22, Phipps said she was not satisfied with Tibbetts’ answers. Because she has a scheduling conflict and cannot be at the selectboard’s Aug. 9 meeting, Phipps said she plans to readdress the issue at the Sept. 13.

Although selectmen have set an Oct. 4 workshop to hammer out issues with all town committees, Phipps said she feels her concerns should be addresses separately, as they involve charges of actual wrongdoing and violations of selectboard responsibilities under the charter.

Those charges, she says, fall squarely on Tibbetts.

“The town managers responses to my questions are a perfect example of him dissembling. They are generic, they don’t really deal with the issues, and they’re evasive,” she said.

While things have played out with Phipps and the EDC, one careful watcher of events was Kelly Wentworth.

Her husband Scott has worked for the town roads crew for more than 25 years and she served as a selectman for two terms in the mid-1990s, prior to a charter change that now bans spouse of town employees from elected posts.

Wentworth says watching Phipps address selectmen at their July 12 meeting prompted her to come forward with concerns of her own.

Issues her husband had date to 2014, she said, and they had previously felt it best to not rock the boat any more than they had already, for fear of tipping Scott out of a job. After watching Phipps, Wentworth said she found it impossible to hold her peace.

“As I watched the meeting, I could feel myself starting to get upset, and my hair started to stand up on end, as I reflected on some memories that were not so good that happened with my husband,” Kelly Wentworth said, in a July 20 interview. “The presentation Rachel [Phipps] did had some similarities — very different story, different issues, but the same kind of improprieties and unethical behaviors — that I feel my family experienced.”

Wentworth’s reason for coming forward mirrors almost exactly Phipps’ reason for refusing to let things go, even though she was eventually appointed by selectmen to the EDC in a 4-1 vote.

“I don’t just see this as poor performance on the part of the town, I see it as unethical and immoral behaviors on the part of the town manager,” Kelly Wentworth said.

According to Kelly Wentworth, the issues began with the hiring or former Public Services Director Tom Martin in January 2014.

Martin and Scott Wentworth, the No. 2 man in the town garage, hooked horns almost from the beginning, and, in what Scott Wentworth claims was their first and only one-on-one conversation, Martin allegedly said, “You haven’t done anything to impress me.”

On March 28, 2014, Martin handed Scott Wentworth a written warning on his job performance.

Issues continued to escalate until May 6, when Martin gave Scott Wentworth a performance improvement plan that, Scott Wentworth says, was full of unattainable goals designed to drive him off the job. Scott Wentworth eventually left, but on medical leave, under a doctors order, for mounting stress and a deepening depressions.

On June 6, 2014, at the advice of a family friend, Wentworth asked Tibbetts for a copy of his personnel file.

It took the town a week to hand it over, which Kelly says she finds suspicious. Worse, she said, the file, once delivered, contained at least three glaring red flags.

For one, the March 28 written warning found in the file was substantially different than the one Martin had given to Scott Wentworth. Gone from the version signed by Martin where such potentially inflammatory sentences as:

 “Your lack of comprehension of safety and how to keep the crew protected from harm is missing.”

 “Because you lack the ability to address the above, manage, lead, and direct the crew, you are considered incompetent and invisible to them.”

 “This results in you having no credibility ...” and,

 “Your lack of performance in the above cited areas indicate that you cannot perform at this supervisory level.”

Instead, in a letter not signed by Martin, all of those accusations are edited out, replaced by a much-softened verbiage, such as, “You have been in this position for many years and now the department is changing to be more efficient and effective,” and the exhortation that, “Improving in these areas benefits your effectiveness and the crews efficiency.”

Although Scott Wentworth says he was never informed of the change, an ultimatum signed off on by Martin that Wentworth had “30-45 days” to improve, “or I will have to take further disciplinary action or termination,” was changed to “a window of 90-120 days, barring unforeseen circumstances,” with no mention of potential dismissal.

In addition to the edited warning letter, the Wentworths also found a second disciplinary letter dated June 18, 2014 — two weeks after Scott received the file.

In a timeline in the file prepared by Martin of all his actions taken in regard to Scott, there is a notation, “3/19/2014 Met with selectmen in executive session.”

According to Julie Rabinowitz, director of policy, operations and communication, Maine Department of Labor, an employer actually has 10 days to hand over a personnel file, after receiving a request from the employee. So, the town is not on the hook, legally, for taking a week to comply with the Wentworths request to see Scott’s file.

As to altering and post-rating documents in the file, Rabinowitz said, “This is not addressed in the law.”

She had the same assessment of the executive session.

Maine’s Freedom of Access Act does state that “Any person charged or investigated must be permitted to be present at an executive session if that person so desires.” An public employee’s right to be present during an executive session at which he or she is discussed is not necessarily triggered by a formal investigation, as the statute also references simple “complaints against a person.”

Tibbetts declined comment on Friday, July 22, saying “my schedule is packed for the day.” He is on vacation this week. However, he did say, “I reviewed when the board of selectmen met in 2014 and there is no record of the board meeting on that date [March 19].”

The Wentworths say that Martin apparently had trouble with dates. In the timeline that mentions the executive session, Martin says the written warning dated March 28, and delivered on that date, was given on March 22. While a notation by Martin that he “Met with Barry [Tibbetts] about questions sent to selectmen,” dated March 25, is presumable about an email Wentworth sent on March 28.

On March 30, Scott Wentworth had a meeting with Tibbetts, but says the town manager declined to address any of his concerns at that time about the tone of the March 28 written warning, or other issues he was having with Martin.

“He was only interested in backing his director, it seemed to me,” he said.

Selectmen did conduct executive session meetings on March 11 and March 25, 2014, both to “discuss a personal issue.” Despite a requirement in the law that municipal boards divulge the “precise nature” of topics to be discussed, no other information was given, nor did the motions to enter executive session state who, if anyone, entered the talks along with selectmen.

Tibbetts declined to say if Scott was the topic of either discussion.

“The town does not comment on personnel matters as they are confidential,” he said, in a July 22 email.

A question sent to Maine Public Access Ombudsman Brenda Kielty and Attorney General Janet Mills, asking for clarification on the right of an employee to be present if discusses in executive session, was answered Friday by special assistant Tim Feeley, who wrote, “We cannot offer an opinion on this case. The statute speaks for itself.”

The Post filed a complaint with Kielty regarding possible violations of Maine’s Freedom of Access Act. On Monday Kielty acknowledged receipt of the complaint.

“As soon as I have gathered sufficient information about your allegations, I will contact you with any further questions I may have,” she wrote.

On Monday evening, Richard Morin, chairman of the Kennebunk Board of Selectmen acknowledged closed meetings were held with Martin to discuss “dysfunction” in the highway department.

“I attended a number of meetings with the board and Tom Martin regarding the configuration of the Department of Public Works organization, duties of supervisors, role clarity, the organization chart, and how it would fit to get her in the context of the various seasonal demands and the talent we have on staff,” Morin said. “We did not discuss any issues or performance/ non-performance of Scott Wentworth or any other individual in our employ. By charter, the board of selectmen would not delve into personnel matters and did not at this juncture and has not in the six years I have served.”

The statute that allows a public body to enter executive session for “a personnel issue,” states such a meeting can be conducted “only if public discussion could be reasonably expected to cause damage to the individual’s reputation or the individual’s right to privacy would be violated.”

Such nuts and bolts discussion, such as department organization and job duties would not be eligible under Maine law for a closed meeting that bars the public from hearing the debate.

Scott Wentorth returned from his medical leave on Sept. 9, 2014, after reaching an agreement with Tibbetts on conditions. Not long after, Martin came under fire himself, especially after complaints mounted that he sent public works employees to Fairfield to fetch a truck he owned.

That was a trip that deemed by some town hall watchers, who complained at the time — including Ed Karytko, who later won election to the board — to be a fair distance from Augusta, to which the crew was originally dispatched for a trailer bought at auction for the town.

Tibbetts was faulted at the time for saying at a public meeting that the truck was actually picked up in Lewiston, and was thus “on the way.”

Martin eventually handed in his resignation on April 21, 2015. He had been on medical leave since that January, following knee surgery, and was replaced by Mike Pardue as interim director of public works.

Pardue, owner of the consulting firm, The Tideview Group, was initially hired to prepare a report on town garage operations after Kennebunk was fined $3,400 by the Department of Environmental Protection for digging up sand dunes off Great Hill Road. The fine, plus corrective work and labor, cost the town more than $9,000, causing some residents to lay blame on Martin.

The Pardue report was delivered Sept. 22, 2015. The report, delivered five months after Martin left, ended up being a scathing review of his tenure, saying, “there was a significant lack of leadership,” within the highway department, adding relationships among the crew had become “severely strained,” while internal communication ... was nearly nonexistent” with a “high level of distrust between the director and several of the staff members.”

“Ninety percent of the staff stated their desire for new leadership with the department,” the report read.

“I looked at the file you mentioned and there is no final disciplinary action that would be public information in that file,” Tibbetts wrote.

According to Kelly Wentworth, both docuements were expunged from her husband’s personnel file following Martin’s departure, leaving only the occasional reviews with high marks that were present before he showed up on the scene.

However, she says the fact that things worked out in the end is not the point. And even though the Wentworths are sorely tempted to leave well enough alone and not risk stirring the pot, Kelly says she felt unable to remain silent, after seeing Phipps’ struggle.

“What concerns me is that we have evidence here of a pattern of unethical behavior, or what I would certainly call unethical behavior anyway. And if it happened to us, and it happened to Rachel [Phipps], who else out there is keeping quiet? How many other times have questionable things like this happened?”

Tibbetts has a scheduled annual review coming up this fall. Tibbetts has been town manager in Kennebunk since October 1998.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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