Monterey Select Board
Minutes of the meeting of 5/14/07
Meeting Opened at: 8:30am
Select Board Members Present: Jonathan Sylbert, Chairperson, Wayne Burkhart and Scott Jenssen
Also in attendance: Maggie Leonard for the Monterey News
The board met with the Director of Highways, Maynard Forbes and reviewed the following items:
1. River Rd. – Some of the gabions are falling; the bank isn’t moving and it’s not a major problem right now but the Highway Department would like to put some additional rocks there.
2. The lines in front of the store were repainted and signs were posted that you would be ticketed if found in a no parking area. The two crosswalks in the center of town were also repainted.
3. The flags for Memorial Day will be put up next weekend.
4. The Parks Commission put out the specs for bids to mow the parks and it does not appear that they included in the specs the area around the town hall. M. Forbes stated that they could still include it as the specs state Greene Park and when they show the area to be mowed they can explain that it includes the grassy area surrounding the town hall.
5. The attendant at the transfer station asked for a port a potty. The attendant currently uses the facilities in the shed and to put a port a potty at the transfer station would be approximately $1200/yr. The Select Board would like to review its options and will get back to M. Forbes next week. The possibility of having the cleaning service clean at the garage was also discussed as a separate and non-related issue.
6. CET called M. Forbes and W. Burkhart about sending an educational person to transfer station in the near future.
7. Weekly report was reviewed.
The board met with Building Inspector, Donald Torrico and reviewed the following items:
1. D. Torrico provided some research he did on land use and what the Planning Board looks for on an ANR.
2. D. Torrico asked about a check and balance regarding checking work done by the newly elected Select Board member and contractor, Scott Jenssen.
The board met with Police Chief, Gareth Backhaus to review the following items:
1. Weekly report was reviewed.
2. Abandoned 911 call on Main Rd.
3. Unauthorized burn on Pixley Rd.
4. MVA on Main Rd – left the scene. The Police are looking for a 1982 Chevy S10 Blazer or pickup, blue with a damaged front bumper.
5. Assisted New Marlborough on a section 912.
6. Shots fired on Beartown Mtn Rd.
7. MVA with the cruiser on Rt 57. Minimal damage occurred to the cruiser.
8. The Police Department will take care of moving the PA system for Memorial Day.
9. The Police Chief informed the board of a conversation one of his officers had with him regarding some slanderous untrue remarks made to him concerning the Inter-Departmental Secretary by the Town Clerk. The Officer involved is going to be asked to put something down in writing. This is a continuing problem that needs to be solved.
9:30am Dean Amidon, Deputy Harbormaster of Lake Garfield
D. Amidon came in to discuss the floating raft issue. J. Sylbert explained the situation to date. D. Amidon spoke with D. Dempsey of the Conservation Commission regarding this and has no problem with the Conservation Commission allowing these with certain regulations placed on them. If the Board wants Mr. Amidon to issue the permits he would be happy to do it. The board and Mr. Amidon discussed the common sense stipulations they felt would be appropriate for floating rafts and Mr. Amidon agreed to be the issuing authority.
The mooring and public boat ramp issue was also briefly discussed.
10am Executive Session: A motion was made by Select Board Chair, Jonathan Sylbert to move the meeting into Executive Session for possible disciplinary action against one of Monterey’s officers which was unanimously approve by the board. Attorney Raymond Jacuba stated that his client would like to keep it as an open meeting. It was agreed at this time that this would not be an evidentiary hearing.
Present: Jerome Scully, Town Counsel, Jonathan Sylbert, Select Board Chair, Wayne Burkhart, Select Board Member, Scott Jenssen, Select Board Member, Pat Mielke, Town Treasurer, Richard Tryon, resident, Linda Thorpe, Assistant Town Clerk, Chief Gareth Backhaus, Officer Kyle Whalley, Alice Hanlon, resident, Attorney Raymond Jacuba, Representative for Officer Kyle Whalley, Raymond Tryon, Fire Chief, Maggie Leonard, Monterey News Reporter and Barbara Swann, Town Clerk.
The reason the meeting was called was to discuss MGL Chapter 41 Section 99 that requires an officer to live within 15 miles of the limits of said city or town they are employed for. The town does not have an ordinance or bylaw to make an exception to this. This requirement was first discussed when interviewing Officer Whalley for the position and the requirements were reiterated by the Select Board when he was hired on January 1, 2004. Officer Whalley had requested an extension of a year to meet this requirement so he could stay at home and pay off some bills. When asked again at a later date about his moving status by the Chief, Officer Whalley stated that he hated the town and this job. The Chief learned that Officer Whalley had been applying to several other departments closer to where he
resides (other departments had called the Chief as a reference). When asked again about moving approximately 2 weeks ago a response was written to the Chief and the Select Board by Officer Whalley stating that for many reasons he could not and would not be relocating. In addition to the issue of residence; also discussed during this informal meeting were; habitual tardiness and improper use of the department computer.
Another concern of the Police Chief was an incident that occurred at the Annual Town Meeting on May 5, 2007. When asked by the Chief why he was at the Firehouse rather than on patrol as he was assigned, Officer Whalley stated that he wanted to be there to ask for a larger raise. After discussing why this was not appropriate and that he should return to patrolling, Officer Whalley became agitated stating that the Chief had fired him and that this wasn’t over, he sped off in the cruiser and returned it to its parking spot and went home.
Attorney Jacoby asked if the board wanted to pursue a disciplinary hearing and town counsel responded that they would. Officer Whalley waived any notification requirements for such a hearing and requested that the evidentiary hearing be held now in an open session. All present agreed to go forward with the disciplinary hearing in an open session.
J. Sylbert explained the appointment process and generally speaking with the Police and Fire Departments the Chiefs of those departments give the Select Board their recommendations and the board takes them under advisement. The Select Board is currently in the time frame of making reappointments and if the Chief were to come to him right now and state that we weren’t in compliance with the MGL requiring Officer Whalley to live within 15 miles and recommended not to reappoint him, the board would have to take that under consideration.
Chief Backhaus stated that the situations that occurred at the town meeting were conduct unbecoming of an officer and this is the reason he was suspended with pay. The incident that took place at the town meeting is secondary to the 15mile requirement. Everything stated prior to the evidentiary hearing is going to be considered as the evidentiary hearing (this was adopted by the board since statements made were not originally made under oath). A performance evaluation was given to Officer Whalley one year after he was hired (the town does not currently have a formal evaluation process). During this evaluation Officer Whalley stated that he hated this town. Several times over the last 2 years when Officer Whalley picked up the cruiser to start his shift the Chief had several conversations with
him regarding concerns he had such as putting his gun belt on when his shift starts rather than on the seat next to him, his lack of issuing citations, installing video games on the department computer (which when uninstalled resulted in the computer being unusable for 3 days). Attorney Jacoby asked if there had been any complaints from the town’s people about Office Whalley’s performance; there has not. The grant that Officer Whalley was hired through ended last year and for the last 2 fiscal year budgets the town had funded his position.
The Chief noted that the request to take time off after the birth of his child under the FMLA, Officer Whalley rescinded this request when he found out the time would be unpaid and sick time could not be used. Attorney Jacoby objected that the Chief would not give his recommendation as to what should happen to Officer Whalley (the Chief noted that he was unprepared to make this recommendation at this time).
The Chief noted that he currently has part-time officers that out perform Officer Whalley. The procedures for checking in and out were reviewed. Attorney Jacoby requested and was provided with a copy of the letter from Officer Whalley where he rescinded his request to take time off under the FMLA.
At this time a copy of a letter from Maynard Forbes, Director of Operations was given to Officer Whalley and his Attorney regarding incidents that have occurred at the Highway Garage. Attorney Jacoby objected to this since Mr. Forbes was not present to be questioned.
Attorney Jacoby asked resident Alice Hanlon to reiterate a conversation she had with Chief Backhaus. She stated that the Chief told her she would never give Officer Whalley a recommendation to work in law enforcement. She is concerned that the Chief is abusing his power as Chief to destroy a young man’s career.
Attorney Jacoby asked resident and Assistant Town Clerk, Linda Thorpe to repeat what she saw take place at the Town Meeting. She stated all she heard was the Chief ask him what he was doing there (in what she states was an unpleasant tone) and that he informed Officer Whalley to return to patrolling. Ms. Thorpe stated that she does observe him almost everyday in passing when returning her school bus. Linda Thorpe added that several people have come into the town hall where she works to offer positive comments about Officer Whalley.
At this time Officer Kyle Whalley was asked to speak. His full name and credentials were given. Officer Whalley stated that he resigned from the Southwick Police Department to accept a full time position in Monterey. Officer Whalley stated that when he was hired he notified the Chief that he has a lot of bills to pay off and that he wouldn’t be able to relocate to Monterey until they were paid off, as the cost of living is more expensive here. Officer Whalley always responded that he could not afford to live here. Officer Whalley stated that when he was late it was due to traffic on the Massachusetts Turnpike and when he would be significantly late he would call. Office Whalley stated that it takes him about 50 minutes to get here from his home. After it was addressed about
2 weeks ago, Officer Whalley stated that he began wearing his belt at all times. He stated that he rescinded his FMLA request after he read an email written by the Chief to the Massachusetts Chiefs Attorney. Officer Whalley stated that he saw a file with his name on it in the desk drawer and read the contents, he stated that the desk is not Chief Backhaus’ specifically that it is a department desk. Officer Whalley stated that he never told the Chief that he hated this town but about 2 years ago he had an argument with the Chief that there were problems in the department and at that time he stated that he didn’t want to work for this town anymore (with an expletive included). Officer Whalley stated that his performance merited more than 3% raise and he felt he deserved 6% like all the other full time employees were getting (please note for the record that not all full time employees received 6% as a raise this fiscal year).
The Chief asked to go on record that his statement of what occurred at the town meeting was a complete fabrication. He never suggested firing him. The Chief restated what took place on Saturday morning when Officer Whalley was told that what he wanted to do was not the proper way of handling the situation.
Town Counsel asked for clarification regarding where the email Officer Whalley found was kept. Chief Backhaus stated that it was locked in his desk where he keeps all documents of this nature. The Chief also noted that he has mentioned to the Inter-Departmental Secretary several times in the last few weeks that the lock on the desk appeared to be broken into and that a mangled paper clip was found on the desk (which was shown to the Inter-Departmental Secretary as well as the “marks” on the desk lock)
The Select Board asked if Chief Backhaus had anything else pertinent to the evidentiary hearing and Officer Whalley’s performance. Attorney Jacoby made note that Officer Whalley wants to continue working for the town. Attorney Jacoby requested that if Officer Whalley is to not be reappointed for the upcoming year that his record not be tarnished. Attorney Jacoby asked that the board take under consideration that there is a personality conflict between Officer Whalley and the Chief and that if the board decides to not reappoint that they offer Officer Whalley a letter of recommendation so as not to prevent future employment at any other Police Departments.
At this time Jonathan Sylbert closed the hearing to take everything under advisement. The next time the board will discuss this will be at next week’s Select Board meeting.
The board asked the Police Chief to present at next week’s meeting his recommendations for appointments in his office. Scott Jenssen and Pat Mielke recommended that the Select Board begin working on a formal review process that be kept in the employee’s personnel file with the Town Treasurer.
Attorney Jacoby returned to clarify the suspension and when Officer Whalley should/could return to work. The board and Chief of Police both confirmed that he is still on suspension with pay until further notice.
Miscellaneous Select Board Items Reviewed:
1. Minutes from 5.7.07 were approved as amended.
2. B. Swann, Town Clerk came in to discuss the letter written by L. Epstein regarding the issue of last year’s town meeting and the Right to Farm bylaw. The Town Clerk states that it needed to be on this year’s town meeting warrant (2007) as last year’s article did not state that the text was on file in the town hall. The Town Clerk would like a letter written on her behalf by the board or Town Counsel to clear her name. Documentation to support her argument was provided by the clerk to the board.
3. B. Swann, Town Clerk also brought in a letter from the Gt. Barrington Post Office stating that they will be renumbering again specific areas of town. The change will affect the zip code only. Questions should be directed to the Gt. Barrington Post Office.
4. P. Mielke asked about the town repairing the stonewall that abuts her property across from the old Avalon School.
5. P. Mielke came in to request a copy of the Berkshire Mediation Services report. J. Sylbert explained that the board is still reviewing it and they would still like to speak further with Jenna Ford of Berkshire Mediation Services as none of the specific information was used in the final report and it was rather general.
6. M. Miller came in to speak with the board about the grating that is going on right now and the lack of spreading grass seed to stabilize the side of the road.
7. The board began discussing potential options regarding the evidentiary hearing held today.
8. The petition from Town Counsel for the changing of the Edith Wilson will was put on hold until next week.
The meeting adjourned at: 12:34pm
Submitted by:
Melissa Noe, Inter-Departmental Secretary
Town of Monterey
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