Tuesday, July 13, 2010
8:00 a.m.
The meeting was called to order by Sewer Commission Chairman Michael Salerno at 8:02 a.m. in the Central Meeting Room, South of the Hingham Town Hall at 210 Central Street. Those present included Sewer Commissioners Demko, Salerno, and Spath; Kevin Paicos, Town Administrator; Jim Dow, Sewer Supervisor; Kate Lathrop, Sewer Office Administrator; Michael A. Feinberg, Attorney for Teamsters Local 25; Steven J. South, Business Agent for Teamsters Local 25; Stephen Dempsey, Sewer Pump Station Operator; and members of the press and public.
• Personnel Issues
The first order of business was to conduct a hearing into the alleged insubordination of Stephen Dempsey on March 11, 2010.
Chairman Salerno asked Mr. Dempsey if he would prefer the meeting be held in executive or open session and was told that open session was desired. Mr. Salerno informed the meeting that an audio tape recording was being made. A videographer was also recording the meeting although this was not specifically mentioned.
Mr. Feinberg began by cautioning the Sewer Commissioners that they must approach the matter with open minds and that only evidence presented at that day’s meeting could be used in coming to a decision regarding discipline of Mr. Dempsey. Mr. Salerno agreed. When asked if the Commissioners had discussed discipline issues with Mr. Dow, Mr. Salerno replied that there had been disciplinary problems that the Supervisor had to bring to the Board. He said that Mr. Spath is in charge of department personnel and may know more of the history. Mr. Salerno, as Chairman, must oversee everything so he may actually know all of the history, but he did not know what was going to be introduced that morning.
Mr. Salerno then read a copy of the letter sent to Mr. Dempsey on June 25, 2010 informing him of the meeting. (See attached)
The meeting continued with Mr. Paicos introducing a list entitled “Work-Related Issues Involving Steven (sp) Dempsey” as Town Exhibit #1, and a description of the events that occurred on the afternoon of 3/11/10 as Exhibit #2. (See attached)
Mr. Feinberg objected to Exhibit #1, stating that only the incident which occurred on 3/11/10 should be considered at the hearing.
Mr. Paicos countered with excerpts from the contract between the Town and Teamsters Local 25 indicating that previous misconduct can be considered in disciplinary matters.
It is here noted that Mr. Feinberg objected to the use of incidents that occurred prior to 3/11/10 before addressing that date specifically.
Mr. Paicos began to read from Exhibit #1.
Mr. Feinberg commented that Exhibit #1 was a compilation taken from primary records and was not itself a primary record. He objected to using the compilation.
Mr. Paicos stated that he would read Exhibit #1 into the record and then introduce a witness who would corroborate the contents of the exhibit.
It is here noted that Mr. Feinberg objected to that process as well.
Mr. Paicos finished the reading of Exhibit #1 and asked to have Jim Dow sworn in as the town’s only witness.
Mr. Paicos then questioned Mr. Dow regarding the accuracy of Exhibit #1, which Mr. Dow affirmed, and his years of supervising Mr. Dempsey. He then asked Mr. Dow to summarize the events of 3/11/10 as recounted in Exhibit #2.
Mr. Dow went through the events of that date, adding that the last entry in Exhibit #1 also occurred on 3/11/10 and should be included in Exhibit #2.
When asked if Exhibit #2 was, with that addition, accurate Mr. Dow stated that it was.
With that, Mr. Paicos concluded the Town’s presentation and turned the witness over to the Union.
Mr. Feinberg requested a recess to go over the exhibits. It was agreed that the meeting would continue at 8:45 a.m.
The meeting was reconvened at 8:55 a.m. with Mr. Feinberg taking the floor. Mr. Feinberg asked Mr. Dow a number of questions regarding his service with the Town of Hingham and his relationship to members of the Board of Sewer Commissioners. He asked that Mr. Dow bring any lists similar to Exhibit #1, which had been compiled for the other crew members, to a future meeting.
Mr. Feinberg then took Mr. Dow through the first Sewer Department entry in Exhibit #1 for 6/14/07, asking for detailed information about that event. Mr. Feinberg questioned whether or not crew members are informed when they have received a verbal warning and that it will be added to their records. Mr. Dow replied that an employee should know that they have received a verbal warning but that there is nothing in the contract between the town and Teamsters Local 25 which sets out the process to be followed for warnings. Mr. Feinberg began to question Mr. Dow on the “fairness” of using these incidents in this hearing. Mr. Paicos responded that Mr. Dow’s opinions with regard to justice were not germane to the discussion. Mr. Feinberg also asked Mr. Dow questions about the way in which the information contained in the exhibit was being used. Mr. Paicos objected to that line of questioning. He stated that he, not Mr. Dow, put the case before the Sewer Commission and that while Mr. Dow was prepared to testify to the accuracy of his records, his opinions regarding how the information is being used was not within his purview.
Mr. Feinberg began to raise questions regarding Mr. Dow’s conduct in the field on various occasions. He was reminded by both Mr. Paicos and Mr. Salerno that Mr. Dow was not the subject of the hearing, and that his actions in the field were not at issue; only his actions as supervisor were pertinent.
Mr. Feinberg asserted that the town opened the door to this type of questioning when Exhibit #1 was allowed.
Mr. Salerno called a brief recess to attend to some personal business. The meeting reconvened at 9:30 a.m. Mr. Salerno informed the meeting that the next agenda item, the Industrial Park Discussion, had been postponed to another unspecified time. He added that Mr. Feinberg had suggested that he finish with Mr. Dow’s testimony and then continue the current hearing to a later date.
To that end, Mr. Salerno made a motion to move to a continuance of the hearing after the completion of Mr. Dow’s testimony. The Board defeated the motion by a two to one vote to carry on with the entire hearing that day. Mr. Salerno acquiesced, saying that the “nays have it”. Therefore, the hearing would not end after Mr. Dow’s testimony but would probably go on for a minimum of an additional 2 ½ hours instead.
Mr. Feinberg resumed taking Mr. Dow through each item listed in Exhibit #1 beginning with the thirteenth item on the list which occurred on 1/13/10. Items #2 through #12 were not individually examined. Eventually Mr. Feinberg took issue with the fact that the exhibit listed incidents that did not result in any disciplinary action as well as ones that did. Mr. Paicos pointed out that everything listed fell under the heading of “work-related issues” which was the title of the exhibit. In addition, Mr. Paicos offered to have the record reflect that Mr. Feinberg would like all non-disciplinary notations stricken but Mr. Feinberg declined the offer.
The questioning of Exhibit #1 continued on to the actions of 3/11/10. Mr. Dow was closely questioned as to the exact occurrences of that day. Mr. Dow stated that he subsequently told the May 25, 2010 meeting of the Sewer Commission that he had some on-going personnel issues that needed to be dealt with. He was told to take the matter to Mr. Paicos.
Mr. Feinberg next questioned Mr. Dow as to the date of his meeting with Mr. Paicos and ultimately submitted that Mr. Dempsey filed a complaint against the town, Mr. Dow, and the Sewer Commission, with the State’s Division of Occupational Safety on June 14, 2010. Mr. Salerno asserted that he was going to stop the discussion at that point since it had no bearing on the matter at hand. Mr. Feinberg said that it had everything to do with the current hearing and that the hearing was a product of Mr. Dempsey’s filing with the State. Voices were angrily raised and a 5 minute recess was called at 10:15 to allow everyone to regain composure.
The meeting reconvened at 10:28. Mr. Feinberg put forth the opinion that crucial to their defense is the theory that the town had convened the present hearing solely in retaliation for Mr. Dempsey filing charges with the State’s Division of Occupational Safety..
Mr. Paicos stated that Mr. Dempsey should be given a full and fair hearing. He went on to point out that 1) the town was unaware that Mr. Dempsey had filed the charges as they were submitted anonymously. (Here Mr. Feinberg objected that Mr. Paicos was referring to “facts which are not in evidence”.) Mr. Paicos continued with the information, which he confirmed with Mr. Feinberg, that the Union, on Mr. Dempsey’s behalf, had filed an unfair labor practice charge with the State Labor Relations Board. The subject of the prohibited practice charge was exactly that information that Mr. Feinberg is asking to have introduced into the present hearing. In addition, the unfair labor practice had been filed without benefit of the grievance procedure. He suggested that before making a decision regarding the admission of the filings with the State as evidence in the present complicated scenario, the Sewer Commission take a recess to consult with labor counsel. He acknowledged that the Commission has the responsibility to be as fair to the employee as possible but that there may be a legal process involved that needs to be dealt with as well. He suggested that the meeting continue to explore all other issues and then continue the hearing at another date.
A 5-minute recess ensued. The hearing began again at 10:40. Mr. Feinberg stated that they felt that Mr. Paicos had offered a sensible suggestion and he hoped the Sewer Commission would agree. Mr. Dempsey wanted to read a statement into the record and the floor was turned over to him. (See attached statement).
At the conclusion of Mr. Dempsey’s statement Mr. Salerno asked the Commission to reconsider their vote to carry on with the meeting and made a motion to adjourn at that time with a continuance of the hearing after consultation with counsel. This motion was seconded and passed unanimously.
Associated Documents:
Dempsey Statement
Town Exhibit 1
Town Exhibit 2
The meeting adjourned at approximately 11:30 a.m.
• Industrial Park Discussion
This discussion was expected to begin at 8:30 a.m. When it became apparent that the disciplinary hearing was going to take considerable time the Sewer Commission notified the town employees waiting for that discussion that it would have to be re-scheduled.
• May 25, 2010 Minutes
The Board moved, seconded, and voted unanimously to accept the minutes of the May 25, 2010 Sewer Commission Meeting.
This is a summary and does not include every point covered by the attendees, nor the full extent of the discussions. The full meeting is available on tape in the Commission Office.