MEETING OF THE BOARD OF SELECTMEN
TOWN OF MOUNT DESERT, MAINE
Wednesday, November 11, 2009
A meeting of the Board of Selectmen was held this date in the Town Hall Meeting Room, in Northeast Harbor.
Those present included: Chairman Tom Richardson, Selectmen Rick Mooers, Chuck Bucklin, and Marilyn Damon, Town Manager Michael MacDonald, and members of the public. Selectman Jean Bonville was absent.
I. Call to order
Chairman Richardson called the meeting to order at 3:05PM.
II. Minutes
None
III. Appointments and Communications
None
IV. Consent Agenda
None
V. Selectmen Reports
None
VI. Old Business
None
VII. New Business
None
VIII. General Issues
None
IX. Committee Meetings Reports
None
X. Treasurer’s Warrants
None
XI. Executive Session
A. Pursuant to M.R.S.A. Title 1, subsection 406.6(E), consulting with the board’s attorney on the board’s legal rights and responsibilities concerning certain personnel matters relative to the town manager position.
Selectman Mooers moved to go into Executive Session, seconded by Selectman Damon.
Town Manager MacDonald stated that under the M.R.S.A. Title 1, subsection 406.6(E) that the Board going into Executive Session to discuss a certain personnel issue that is
relative to the Town Manager position, is not covered under subsection 406.6(E), but under subsection 406.6(A) and that if the Board is using subsection 406.6(E) it also references pending litigation or settlement, which he does not know of any pending litigations or settlements that would be necessary to go into Executive Session. If there is pending litigation or settlement as the Town Manager he should be aware of it and if the Board is looking into litigation or settlement that he should be involved in the Executive Session. If the Board is going into Executive Session to discuss the process of how to conduct an evaluation, this is not covered by M.R.S.A. Title 1, subsection 406.6(E). A discussion on how to conduct an evaluation is an elementary process and if it’s going to be an academic exercise on how to conduct one he feels
that should not be covered in Executive Session. If the Board is going to discuss the Town Manager position, any reference to the duties of the Town Manager, MacDonald has a right to participate in that Executive Session that would discuss any aspect of his job or his performance he would like to participate in the meeting and observe what is going on. Town Manager MacDonald read the language in M.R.S.A. Title 1, subsection 406.6(E) and asked the Board if there was any litigation or settlement that he was not aware of. Vice Chairman Mooers stated that prior to Chairman Richardson assuming the Chairmanship of the Board there was no known litigation at that time, nor was there any pending, if there is such it has transpired since Chairman Richardson has assumed the Chairmanship and he would have to refer any knowledge of any litigation or pending litigation to the Chair.
Attorney Plouffe from Drummond, Woodsum and McMann was present and he disagreed with Town Manager MacDonald’s interpretation of M.R.S.A. Title 1, subsection 406.6(E) and stated that was for the Board of Selectmen to meet with Attorney Plouffe to consult with him the legal rights and duties of the Board of Selectmen. Attorney Plouffe agreed that the Board could not discuss Town Manager evaluation, but the Board can meet with him in Executive Session. Town Manager MacDonald clarified that Attorney Plouffe disagree that he had a right to be present, Attorney Plouffe agreed.
Selectman Bucklin stated that he felt that the meeting with Attorney Plouffe was to discuss their rights and responsibilities as a Board and did not see any need that the Board would be discussing the Town Manager’s performance for his evaluation. Town Manager MacDonald asked if rights and responsibilities were a proper subject for an Executive Session, stating that the Boards duties and the Town Manager duties are clearly laid out in the Maine Statues and fail to see the justification or reason to enter into Executive Session just to discuss a process or if it’s more than a process then he and everyone else had a right to know what the nature for the justification of the Executive Session.
Chairman Richardson asked Attorney Plouffe that according to this sited statue the Board does have the right to call Executive Session to discuss the Board rights and obligations as Board of Selectmen. Attorney Plouffe agreed that as long as he was present and that this practice is done by Planning Boards, and Zoning Boards.
Citizen Jim Bright asked where the fifth Selectman was (Bonville), Chairman Richardson stated that Bonville was in Florida and that the Board was prepared to contact her by telephone and she would be able to participate in the meeting. It was voiced by members of the public in attendance that Selectman Bonville should be present for such an important meeting. Chairman Richardson was not sure if there would be any action taken after the Executive Session.
Citizen Bright voiced his concern for the recent developments, and asked if there a problem and why nobody in Town knows what is going on. He stated that in the past when he was on the Board, and the amount of Town Manager’s that the town went through, the Board of Selectmen were open and up front about what the problems were, other than personality conflicts the Town is being running very well. There have been problems in the recent past, but the Board of Selectmen had taken responsibility for the problems also.
Chairman Richardson stated that he understood that the discussion with the Attorney was what the Board responsibilities and rights were as it pertains to this evaluation process. Citizen Bright stated that he understood that the evaluation process had already taken place, and Town Manager MacDonald does not have a copy of it, certain copies have been destroyed which once they become a written record and there are disposition rules on documents. Citizen Bright stated he didn’t believe that the Board was being up front on what was going on, and that the Board was more concerned about the evaluation. Chairman Richardson assured Citizen Bright that the Board would not be discussing the evaluation, and that there were concerns for the members of the Board including himself about the process. Citizen Bright stated that there is no secret
about how to handle an evaluation. Selectman Bucklin stated that he felt he had a right to request to seek advice from Attorney Plouffe.
Citizen Funderberg asked what the particular advantages of being in Executive Session in determining the Boards individual and collective roles and responsibilities, are the residents of the Town not suppose to know what your duties and responsibilities’ are, and questioned with necessity for the Executive Session. Selectman Bucklin stated that the Board hired an Attorney and they have the right to go into Executive Session to determine what are the Board’s legal rights and responsibilities. The Board is in a similar situation that they were a year ago only now the Board is without the Chairman and the evaluations were shredded, what can be release will be released. Citizen Peckham asked if the Board is not discussing anything about the Town Manager, why this evaluation couldn’t be done in public. Chairman Richardson passed
the question on to Attorney Plouffe. Attorney Plouffe stated the Board of Selectmen are acting as a management team for personnel of this Town particularly the Town Manager and the Board wants to know what their rights are in respect to their obligations under the employment contract with the Town Manager and under the Town Charter, and they want to do this in private. It’s an exception to the “Freedom of Access Act”, a narrow exception to the Act. Attorney Plouffe said it was not his decision to go into Executive Session it was the Board of Selectmen.
Citizen Gail Marshall said she certainly treasured her right to invoke confidentiality with counsel, but this is dealing with public interest that the Board is responsible for. She also asked for clarification that if the Board intended to take action where this meeting was taking place on a State holiday, that she hoped that they would defer any action until a regularly schedule meeting. Chairman Richardson stated that action can not be taken in Executive Session. Selectman Mooers asked Town Manager MacDonald to clarify his requests for his right to be present at any time that his evaluation, job performance, and contract extension was being discussed, and he also exercised his right to have that discussion in public. Town Manager MacDonald said that any request would have to be in writing and that he would defer any public discussion about
his performance review until he had actually had a chance to see it and read any of the emails that have gone on between the Board of Selectmen members, and to discuss any pertaining of those would be extremely premature. Town Manager MacDonald asked that the minutes show that he requested for a second time that for certain personnel matters relative to the Town Manager position, and as the Town Manager had the right to be present in the Executive Session and to hear what is being said, and he is asking for that right and did not consider it a privilege. Selectman Mooers want to reassure the public that there would be no discussion or decision absent the public, and to assure the pubic that there would be no discussion regarding the Town Manager’s performance, evaluation or contract extension absent Town Manager MacDonald.
Chairman Richardson reminded the Board that there was a motion on the floor from Selectman Mooers moved to go into Executive Session at 3:23PM, seconded by Selectman Damon, there was no further discussion. The motion was approved 4-0.
Selectman Mooers moved to come out of Executive Session at 4:22PM, seconded by Selectman Damon. The motion was approved 4-0.
There was no action taken.
Selectman Mooers moved to adjourn the meeting at 4:30PM, seconded by Selectman Damon. The motion was approved 4-0.
Respectfully submitted,
Jean Bonville
Secretary
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