2016-09-30 / Front Page

Town manager contract up for renewal

By Wm. Duke Harrington Staff Writer

KENNEBUNK — With the passage of summer into fall, Kennebunk selectmen are back to holding two meetings per month, but there is only one item on the agenda for September’s second session — one that takes advantage of the fact that Town Manager Barry Tibbetts will not be present.

The agenda for the board’s Sept. 27 meeting called on selectmen to enter executive session with town attorney William Dale to discuss Tibbetts’ contract.

Tibbetts has been town manager in Kennebunk since October 1998, having previously worked as town assessor from September 1993 until his promotion. Last year, selectmen implemented a new, more formal review matrix for conducting Tibbetts’ annual review. That review is expected to begin this fall. Tibbetts’ current contact expires June 30 and, under its provisions, selectmen must announce by Jan. 1 whether they will re-up with the manager.

The agenda for the Sept. 27 meeting, which took place after the Post deadline, called on selectmen to go behind closed doors to “discuss general terms of a town manager’s contract, as applicable to Kennebunk.”

That caught the attention of budget board member John Costin, as did an agenda notation for the portion of the meeting reserved for public comment, which said, “comments relating to the contract will not be entertained.”

Costin noted in a Sept. 22 email to selectmen that their rules of procedure compel them to accept public comment on each agenda item.

As the Maine Municipal Association often notes in its guidance to member towns, and as the state points out on its “frequently asked questions” page which reviews Maine’s Freedom of Access Act requirements, The law “does not require that an opportunity for public participation be provided at open meetings, although many public bodies or agencies choose to permit public participation.”

The only requirement of the law is that business be conducted in public, except for a few narrowly prescribed allowances for executive sessions, and that, in addition to being present, the public has a right to make audio and/or visual recordings of the proceedings. Beyond that, the ability to speak and ask questions is granted at the please of the municipal body. At least in most cases.

However, Kennebunk’s town charter, adopted in July 2009, specifically states that at selectmen meetings “the public shall have the right to be heard on all items on the board’s meeting agenda.”

In December 2009, shortly after the charter was adopted, Costin complained about not being allowed to speak when the board voted to make assistant town planner Caroline Segalla the town’s new community development director, and to grant that position “department head” status. Costin pointed out at the time that while Maine’s FOAA law does allow selectmen to enter executive session to discuss personnel issues such as salaries and benefit, it is not allowed to close out the pubic for a discussion on the mechanics of creating a new position. That opinion was backed up by Sigmund Schutz, an attorney with the Portland law firm Preti Flaherty, who served at the time as legal representation for the Maine Press association.

On the question of whether Costin should have been allowed to speak to Segalla promotion, Tibbets wrote in a Dec. 1, 2009, email “That time for public input was available at the beginning of the meeting under public comment. No comments were stated. The agenda was posted on Friday, so John (or any resident) had all weekend plus Monday and Tuesday to send an inquiry to the board or me.”

Dale backed up that assertion in an email dated the same day, in which he said the time reserved for public comment is the moment at which members of the public are allowed to speak.

“In my opinion, the board’s rules of procedure comply with the minimum requirements of the town charter regarding affording members of the public the right to speak ‘on all items.’” Dale wrote. “John’s argument might be more persuasive if the charter language read ‘on each item,’ but it does not, or if the right to speak on all items were at the end of the board’s agenda (after the board presumably had voted on all items) rather than at the beginning of the agenda as the rules expressly provide.”

The selectmen’s by-laws and policies, amended twice since that time, appear to say the public now has a right to speak to agenda items when they come up, not just during the time reserved for “public comment” at the start of each session.

It reads: “The public, per the town charter, shall have the right to be heard on all items on the board’s meeting agenda, either during public comments or the agenda items subject to a 5-minute limitation per person or as amended by a board vote.”

In reply to Costin’s Sept. 22 email, selectboard Chairman Richard Morin wrote, “I believe the issue at hand is walking that narrow line between discussing contract components and not discussing performance.”

In a Sept. 26 response, Costin said that explanation only made him “more confused.”

Costin wrote that if selectmen only intend to discuss with Dale general rules for which should be in a town manager’s contract, as implied by the agenda for the Sept. 27 meeting, that type of generic deliberation would not be allowed by state law, which states that, “An executive session may be held 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.”

If, however, the board did in fact plan to discuss the particulars of the town’s contract with Tibbetts, then the notice of an intent to close the doors to the public “is not properly warranted on the agenda,” Costin wrote.

Costin also said the “narrow line between discussing contract components and not discussing performance” is a chain only on selectmen, not the public.

“Surely you are not taking the position that there can be no input from the public on the town manager’s employment,” Costin wrote.

Costin also pointed out to Morin that Maine law says “Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present,” in an executive session. In July, Costin’s wife, Rachel Phipps, publicly accused Tibbetts of conspiring to keep her from gaining appointment to the town’s economic development committee. Shortly afterward, Kelly Wentworth approached the Post to allege the personnel file of her husband, Scott, a supervisor at the town’s highway garage, was altered by Tibbetts during and after a conflict with his boss, Tom Martin, then the director of pubic works. Both Phipps and Wentworth are former selectmen, and both have said in interviews with the Post that they do not feel Tibbett’s contract should be renewed.

“You might need to permit some members of the public to attend the executive session,” Costin advised Morin in a Sept. 26 email.

“When will the public have the opportunity to comment on the town manager’s performance and contract before a new contract is drafted,” Costin asked.

“Town Attorney Bill Dale will be present to answer your questions,” Morin replied.

In an interview conducted Monday evening, Morin said the executive session is necessary because selectmen will in fact discuss particulars of Tibbetts’ contract, including salary and benefits. Essentially, he said, the board will be conducting the opening phase of contract negotiations be laying out the parameters to be discussed with Tibbetts.

That, he said, necessitates the need for a private meeting, even though selectmen will not be discussing Tibbetts’ actual job performance at this time. Morin also said the need to discuss general terms of the contract with Dale before entering the performance review stage of the process is necessary because “a number of board members are new to this type of thing.”

Selectmen Blake Baldwin, Ed Karytko and Shiloh Schulte have all been elected since the board’s last contract negotiation with Tibbetts. Although Selectman Dan Boothby was also recently elected, he has sat on the board previously.

Morin said selectmen are getting an early start on the process because of the Jan. 1 deadline to inform Tibbetts whether or not the contract will be renewed. Morin did say Tuesday’s executive session “is unusual,” but only in the sense that Tibbetts will not be present. The town manager went on medical leave on Wednesday, Sept. 21, for hip surgery, and is not expected back in the office until the middle of next week, he said. Tibbetts’ absence gave the board a chance to set out its negotiating position before entering into formal contract talks, Morin said.

“We do appreciate Barry not objecting to this meeting without him,” Morin said.

Tibbetts annual performance review is expected to take place later this fall, Morin said. Selectmen implemented a new, more formal review format when conducting Tibbetts’ annual review last year. Selectman Christopher Cluff, who led that action, has said the change was only designed to give added structure to the review process.

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

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