By Jean Perry, Neighb News Correspondent
Fairhaven Town Counsel Thomas Crotty cautioned the Fairhaven Board of Heath about holding an executive session after the board’s 8/10 meeting, saying any discussion about personnel matters involving Health Agent Mary Freire-Kellogg without her present could be “fodder for litigation.”
Facing the board are two important matters, said Mr. Crotty: personnel issues and a functioning Health Department; the latter, in his opinion, being the most important.
The Health Department must address matters of public health, including the COVID-19 pandemic and Eastern Equine Encephalitis (EEE), among other things.
“And those things need to be concern number one,” said Mr. Crotty. “All the personnel issues are just kind of undermining that work.”
According to Mr. Crotty, a meeting between three Health Department employees, their legal representation, the town administrator, possibly Selectboard Chairperson Daniel Freitas, and Mr. Crotty was scheduled for the following day, 8/11, during which time all parties would try to “resolve some of the issues lurking around” that led to the three employees taking temporary leave from their positions.
When the board approached the agenda item for discussion of the health agent, newly appointed BOH member Geoffrey Haworth commented that he had been unsure of which category Ms. Freire-Kellogg’s leave falls under and has been unable to find all the documentation he needs in order to address the issue. He confirmed that Town Administrator Mark Rees told him the health agent’s leave is categorized under the Family and Medical Leave Act.
Some issues have been addressed, albeit slower than some board members commented they would prefer, such as retrieving filing cabinet keys and acquiring the information needed so interim Health Agent Sarah DuPont could access shared files and computers; however, DuPont is still without the password to an iPad the health agent uses to conduct health inspections.
Mr. Crotty said hopefully the meeting the next day would resolve some of the outstanding issues, but emphasized the need to move onto the daily functioning of the Health Department.
“We need to get the Department of Health running and addressing these things,” said Mr. Crotty, but, he said, obviously this relies on having employees, current ones or new ones, to get the work done.
“Give us a chance to work on that,” said Mr. Crotty. “There’s not really much you can decide right now in a vacuum. You guys can’t do anything tonight that’s going to resolve those underlying issues,” so there was no point in discussing it further during the meeting without those employees present, he stated on 8/10.
Mr. Crotty suggested the board authorize one BOH member to work with the parties and give updates to the board rather than wait for scheduled meetings to progress on any given issue. BOH member Michael Ristuccia suggested it would be best if Chairperson Peter DeTerra was not the appointee, and the board voted for Mr. Haworth to take on the role.
Mr. Ristuccia vented some of his frustration, saying that since he was elected to the board, “one of the people who works in [the Health Office] came to work the first day that it had it reopened, and then over the course of the next 30 days I don’t think she came to work five times.”
Mr. Haworth preferred to enter into executive session to discuss Ms. Freire-Kellogg’s medical documentation behind her FMLA leave of absence, commenting on how he was being careful of what he says during open meeting.
“It makes it hard for me to make decisions and to come to conclusions… when I don’t have all the facts,” said Mr. Haworth.
“One way or another,” he said, whether with the existing employees or new ones, “we’ve got way more important things going on in this community … that need to be addressed, and the board can’t be bogged down continuously with personnel issues so, love me, hate me, whatever, I want to see something done quickly.”
Still, Mr. Crotty was “not comfortable” holding an executive session in Freire-Kellogg’s absence.
“If you go into executive session, she’s not here, you’re opening up yourselves in terms of whatever you discuss … without her being here,” said Mr. Crotty. “And I’m not justifying her position or taking her position on it, but I just don’t want you to expose yourself to potential liability or litigation over something you don’t need to get involved in. You don’t need to do.”
Mr. Crotty said Mr. Haworth could review any documents he must and then discuss the matter at the next meeting.
“But right now, I’m just really concerned that, you go into executive session, it’s just another thing that Attorney [Philip] Beauregard [Ms. Freire-Kellogg’s attorney] can complain about,” said Mr. Crotty. “If there’s not enough there to make it worth that risk of just creating new stuff for him to file claims about, then why do it?”
“But she was invited to this meeting,” said Mr. Ristuccia.
“I understand that,” said Mr. Crotty, but suggested the board avoid the topic from that point on. “I’m just very concerned that any executive session meeting [is] fodder for litigation….”
Perhaps they could discuss her in open session, Mr. Ristuccia suggested.
“To what point?” asked Mr. Crotty.
“At the last meeting her attorney got angry and said that she is not on sick leave,” said Mr. Ristuccia.
“This is exactly what somebody is going to be looking for to sue you for this, sue you for that; don’t even go there,” said Mr. Crotty. “That’s my strong suggestion right now, just today, don’t go there.”
Mr. Ristuccia beseeched Mr. Crotty: “Please, the only problem I have with it is I want progress…. Just a direction so I know what I should suggest to the board to do.”
“That’s what the goal is for tomorrow,” said Mr. Crotty. “If we’re not making progress, if it’s not going somewhere positive, then we have to come back and regroup and figure out what we do. But if we can make progress, let’s give it a shot.”
Earlier in the meeting, the board discussed Ms. DuPont’s salary and money owed to her from her first week of work.
Ms. DuPont stated that she was not paid for her first week of work that began on 7/20. She was paid for the following week of 7/28, which Mr. Crotty explained was because the board did not meet to vote to appoint Ms. DuPont until 7/28, even though she already started working.
“Apparently, somebody worked out an arrangement for her to start working before that date,” said Mr. Crotty, although “no individual board member has the authority to hire somebody. That’s what the board does, not an individual.”
He said the cure was to vote that evening to appoint Ms. DuPont retroactive to 7/20.
As for the matter of her pay rate, that issue remained unresolved.
As Mr. Haworth summarized, Ms. DuPont was offered a higher pay rate, a step 3 rate on the non-union personnel classification plan, to begin as interim health agent, but subsequently received paychecks with a step 1 rate.
The health agent position is classified as a 17 along with the harbormaster/ shellfish warden and the conservation/ sustainability coordinator, on the personnel scale rated from 1-22. Each number then has pay rate steps from 1-9. The step 1 rate for the health agent position, the salary traditionally given to employees when they first start, is $72,342; step 2 is $74,172, and step 3, one traditionally reserved for employees after serving in the position for some time and with significant credentials and qualifications and the one offered to Ms. DuPont upon hire, is for $76,024. At step 9, the maximum rate is $88,150.
Mr. Haworth said the town should uphold the rate the board offered Ms. DuPont, and Mr. Ristuccia said he did some investigating, which he found “pretty interesting.”
He pointed to Massachusetts General Law 111 section 27, which he said gives the board the right to fix the health agent’s salary itself. He said a subsequent amendment to the State Constitution gives the BOH “the right to set wages, hire, fire, without any interference with anybody, they’re autonomous,” he said.
“And any municipal bylaw that states otherwise is invalid, according to the State Constitution, so I don’t know why we’re even talking about this,” stated Mr. Ristuccia.
Mr. DeTerra quoted something he claimed Mr. Rees stated, saying: “‘You want good people in the town, you gotta pay these people,’ and I feel that [step 3] is a pay rate for a person with a master’s in public health.”
Mr. Crotty said, should there be a provision in the law that states that the personnel bylaw does not apply to Ms. DoPont’s salary, he would look into it and suggest an adjustment. He said that matter would be discussed at the next day’s meeting, so there was no point in the board voting on it that night.
Mr. DeTerra lamented being out of the loop.
“I got Mr. Rees going to one board member, going to the other board member,” said Mr. DeTerra, “…not going through the chairman. He’s not following protocol here, please….”
Mr. Ristuccia said it was he who had been in Mr. Rees’ office looking for keys when that issue was discussed.
Mr. Haworth said he was the one who asked Mr. Crotty to attend the meeting for the discussion.
Mr. DeTerra just wanted someone to at least email him, the chairperson, to keep him up to speed.
“The only thing I’m gonna say about this … is that I feel like we hired this young lady, you guys hired this young lady,” said Mr. Haworth, “at a certain pay rate. She agreed to that pay rate…. It was negotiated with her. I don’t think it’s fair for anybody to change that rate after she’s already worked.”
“If you work, you should get paid,” said Mr. DeTerra. “That’s how I feel.”
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