2017-07-21 / Community

Selectmen maintain no hiring violation

By Wm. Duke Harrington Staff Writer

KENNEBUNK — After repeated commentary during the public comment portion of recent selectmen meetings in Kennebunk, and a call to the cops in one instance when post-meeting debate got a little heated, the question of whether selectmen erred in the hiring of Town Manager Mike Pardue got a full review as a n agenda item at the board’s July 11 session.

John Costin, a member of the town’s budget board, has maintained that selectmen violated the town’s hiring policy, and possibly also the Maine Freedom of Access Act with the May 9 and May 16 closed-door meetings that led to extending Pardue’s contract with the town for three years.

Pardue, who has shepherded Kennebunk’s police, public works, and human resources departments as a private consultant, was working as full-time human resources director last fall when former town manager Barry Tibbetts announced he would not seek to renew his contract past its June 30 expiration. He also planned to go out on medical leave in December for shoulder surgery and the plan was for Pardue to step in as manager while Tibbitts finished out his tenure as a special consultant. In October, selectmen signed Pardue to a one-year contract as manager through June 30, 2018.

At the time, the board said Pardue was not an interim manager, but a “manager on an interim basis,” and that one of his primary functions would be to help locate and hire the town’s next full-time manager.

The first public indication of an about face in that plan came in a press release issued after the May 16 workshop meeting, in which the board announced it had hired Pardue through June 30, 2020 at an annual salary of $125,000.

Costin has complained that the two executive sessions in May only indicated selectmen were slated to talk to Pardue about his contract, but gave no indication that an extension was on the table. Although that actual vote on the contract was done in public when the board emerged from behind closed doors, Costin maintains the town’s hiring policy calls on selectmen to cast a wide net and advertise for any openings in the top job at town hall.

Those complaints came to a head following the board’s June 27 meeting, when Costin, his spoise, school board member Rachel Phipps, and Phipps’ brother Daniel, got into an argument with board chairman Dick Morin over Morin’s alleged disrespect for their concerns, as expressed during the meeting.

Morin has said to get a full response from the board, the issue needed to be an official agenda item. That done, the result of the July 11 debate seems to be an agreement to continue disagreeing.

Selectmen said no laws or policies were violated, and that they were motivated in the hiring to tap a proven leader, while avoiding a costly executive search, which they claim could have cost as much as $50,000.

That still does not satisfy Costin, who has acknowledged Pardue as the best choice for the job, but says he now wants selectmen to engage in a public workshop primer on the Freedom of Access Act — one preferably not led by town attorney William Dale, he said.

“Selectmen really haven’t given a full chronology of what happened,” Costin said. “The picture right now is rather murky. There is a lot of detail missing, and some [details] are apparently in conflict with answers that have been given by selectmen at this time. It would appear that both the town’s personnel policy and the state’s freedom of access law were violated during this process, but it’s very difficult to say because very little is known.”

In laying out a chronology, Selectman Christopher Cluff said Morin first approached him in April about hanging on to Pardue longer than originally planned, after learning from other town officials at Maine Municipal Association meetings about the number of manager openings in Maine at the time, and the relative dearth of qualified candidates.

Cluff said he and Morin met with Pardue and asked if he would be interested in extending his contract. Cluff did not give a date for that meeting, but noted the full board got word of the proposed extension at the May 9 executive session, maintaining that there was no extra-meeting discussion beyond the talk he and Morin had with Pardue.

“That was a personnel matter, and that’s why we went in there [the May 9 executive session], under guidance from Bill,” Cluff said, referring to town attorney Dale.

“We came out of that meeting with loose parameters of what a new contract might look like, pending [legal] review,” Morin said.

The following week, after a second executive session to review the formal contract, selectmen voted to extend an offer, and Cluff said he and other members of the board were careful to make sure they were acting within ethical and legal bounds.

“I do remember asking several times, ‘Is this going to pass the John Costin test?’” Cluff said. “I think that’s a good thing that you are always there in the back of our minds.”

“Well, had this process been public, you would have got an answer as to whether it passed the test, and the answer would have been no,” Costin said.

With a large blow-up printout of the town’s personnel policy as a prop, erected behind him at the speaker’s podium, Costin said, in reference to the requirement for an advertised manager search, “It does not allow for any discretion whatsoever. It used the word ‘shall.’ It’s really very clear.”

However, Dale pointed out that the ‘standard selection procedure,” which the policy compels the board to follow in hiring the manager, is described elsewhere in the document as “a guideline” that can be waived by the board. In reply, Costin maintained that the wavier ability applies to the manager hiring town employees, not to the selectmen hiring the manager.

“Well, your professional legal opinion is different from mine,” said Dale, who suggested his law degree and four-plus decades as a municipal attorney trumped Costin’s resume as an authority on the topic.

“Before a workshop, it was clearly stated what we were doing,” Cluff said, replying to Costin’s claim that the executive sessions had not been properly noticed to divulge as required by law “the precise nature” of the business to be discussed out of public view.

“But how would a resident know that [a contract extension] was what you were going to discuss from the way it was warranted on the agenda?” Costin asked.

Dale did not say whether or not the notice and motions to go into executive session met the “precise nature” test. Instead, he faulted the language of the law.

“A journalism professor from the University of Maine-Augusta wrote it, not a lawyer,” he said. “I presume he wanted that to help him write news stories.”

Selectman Blake Baldwin said there was not a violation of the policy because, technically speaking at least, there was no vacancy in the manager job.

“We were not hiring a town manger,” he said. “He was already the town manager. We were only extending his contract.”

From there, things got personal.

“You wonder why people don’t listen to you, and they don’t, and it’s because you put us into a fight or flight mode every time you get up there,” Baldwin said. “Do you want to help this community be better, or do you just want to be a critic?”

“It’s not about me,” Costin said. “While I appreciate your attempts to delve into the psychology of me, to spend three minutes of your soliloquy on my personality defects, I think that’s highly inappropriate.

“This insertion of words into [policy] paragraphs where they don’t exist, to have the town attorney say these words mean something they don’t say, it’s a crock,” Costin said. “It’s offensive.”

“I think what we did was in the best interests of this community and I will go to sleep tonight secure in the knowledge it’s true,” said Blake.

Phipps said all of her concerns, and Costin’s, could have been allayed if only selectmen had given some indication before signing on the dotted line that they were considering a different path from the one laid out last fall.

“We love Mike. It’s not about Mike. The issue is about process, not outcome,” she said. “The problem is that there is a culture of going into executive sessions that’s unnecessary.

“Once you got into the brass tacks of what Mike’s contract was going to be, fine, then go into executive session,” Phipps said. “But just do the [hiring] process, so that the public could have had input, it would have been transparent, and we could have seen what happened. Or don’t, but make that a public conversation. I can’t tell you how shocking it was to wake up one day to find out we had a permanent town manager.

“What we’re asking for is transparency and openness and that could have been achieved so easy in this case, with the same great outcome, but with everyone feeling good about,” Phipps said.

“All that costs money, and if we were going to end up right back where we were anyway, that was my biggest concern,” Selectman Ed Karytko said.

One other member of the public, Ward Hansen, supported that view.

“In the past two months I’ve run across two people who’ve said, ‘I’m moving out of Kennebunk, it’s just gotten too expensive.’ So, anything you can do to keep the costs down, I appreciate that and thank you.”

“I did not feel at any moment in time that we were trying to deceive the residents,” Karytko said. “I felt we were trying to do the best thing for every single person in this town.”

However, one member of the board, Shiloh Schulte, appeared to break with his peers, saying he had actually called for early public disclosure of the new direction selectmen were considering, but that he was overruled by the balance of the board.

“Meeting all the legal requirements we had to do, we did that,” he said. “But whether we could have done more, in terms of inviting more public participation into the process, I do feel we could have done that, and, if we were to do it over again, we should have done that. That would have been a better way to go. We could have done that and I feel we probably should have done that.”

“I agree, in hindsight we could have done things differently. But I think the end result was a good one, and that is why I feel this board has done its duty to this community,” Baldwin said.

Sweeping her hand in the air across the dais and noting that everyone seated there, including Pardue and Dale, were male, Phipps closed her comments by saying the lack of a formal hiring process “totally precluded the possibility” of hiring a female manager.

In that case, Phipps suggested, the town should take some of the money it saved on a search process and use it to stage workshops promoting gender diversity on the town’s public boards and committees.

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

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