Analysis of the Town’s Personnel Policies
Is the town following its published procedures?
Concern has arisen about whether the town is fairly treating Fire Chief Jaye Vilchock and Fire Lieutenant Sandy Vilchock who have been on paid administrative leave since March 23 regarding a complaint that has not been disclosed to them. This gives rise to concerns about whether the town is following its own policies. In an earlier article I reviewed the Fire Department’s bylaws for policies relevant to this situation. This article is about the personnel policies.
For readers who want a short version, the town’s personnel policies:
Are not legally binding.
Create no due process protections.
Don’t address complaints coming from non-employees.
Are unclear about how complaints against mid-level employees should be handled.
Say the Fire Chief is an elected official.
Say that complaints brought to the Board of Selectmen will be typically decided upon within 15 days.
In conducting research I found a guide for investigating complaints about NH school personnel. Although strictly speaking it does not apply to this situation, the guide gives good general advice and points to some issues that the Board of Selectmen may not have considered and some things the public might wish to know, such as:
Do the allegations form a criminal complaint? If so, has a complaint been filed with law enforcement?
Has the town’s insurance carrier been informed of the situation, as it may create a liability for the town?
Has an outside investigator been engaged?
The Personnel Policies Create No Due Process Protections
The preface to the town’s personnel policies makes clear that the policies are not contractually binding on the town and provide no due process protections.
The policies outlined in this manual should be regarded as guidelines only, which may require change from time to time. The Town of Nottingham retains the right to make decisions involving employment as needed in order to conduct its work in a manner that is beneficial to the employees and the Town.… This manual is not, and should not be construed as, an express or implied contract and does not modify any existing at-will status of any Town employee. It is not intended to create any due process protections or requirements in excess of federal or state constitutional or statutory requirements…. Employment at-will means that employees are free to resign from their employment at any time, with or without cause or notice, and the Town has similar rights and can terminate the employment relationship at any time, with or without cause or notice, except as provided by law. Please be aware that the Town reserves the right to change, revise, or eliminate any of the policies, procedures, or benefits described in this manual at any time, in its sole discretion. (p. ii)
Is the Fire Chief an Elected Official?
It was claimed at a Board of Selectmen meeting that the Fire Chief was an elected official. My analysis of the Fire Department’s bylaws showed that while the Fire Chief was elected by the members of the Fire Department, the Board of Selectmen had the authority to appoint the Fire Chief. The Personnel Policies, however, say the Fire Chief is an elected official.
With the exception of the Select Board, Library Trustees, and Fire Chief, elected officials do not have supervisory authority over employees. (p. 7)
Dispute Resolution Procedure
The manual’s dispute resolution procedure covers complaints brought forward by an employee. It is not publicly known whether the complaint against the Fire Chief came from an employee or someone else.
The procedure calls for the employee to make the complaint to their immediate supervisor or the head of the department. It makes no provision for the possibility that the complaint might be against the immediate supervisor or anyone else further up the chain of command.
In the clause about appeals the matter is to go to the Town Administrator who is supposed to hold a hearing within five working days of getting a complaint and to make a decision within ten days of the hearing.
Appeals of decisions of the Town Administrator, or complaints against the Town Administrator are to be submitted in writing to the Board of Selectmen within five days of the event. “The Board of Selectmen may conduct a hearing on the matter and will typically render a written decision within fifteen days of receipt of the complaint.”
Step #1: The employee shall bring the complaint or appeal of discipline, to the attention of his/her immediate department head/supervisor within three (3) work days of knowledge of the event causing the complaint. The immediate supervisor shall respond within three (3) workdays of hearing the complaint. For purposes of this process the workdays will be defined as the greater of workdays of the individual from whom a response or action is required or the one making the complaint/appeal of discipline. A salaried employee’s workdays will be Monday-Friday.
Step #2: If the decision in step 1 was a department head, then the employee goes to step 3. Any party, including the department head in the case of a supervisor decision, is unsatisfied with the response at the first step, that person shall submit the complaint/appeal of discipline in writing to the department head. Submission of the complaint to the department head shall be within three (3) work days of the decision of the supervisor in step 1 or when that decision was due, whichever is sooner. The department head shall respond in writing within three (3) work days to this second request.
Step #3: If the employee is unsatisfied with the response at the second step, or if it were the department head making the decision at step 1, or if the department head failed to respond, the employee shall submit the complaint in writing to the Town Administrator. Submission of the complaint to the Town Administrator shall be within five (5) workdays of the department head’s written decision or when that decision was due. The Town Administrator shall hold a hearing on the complaint and shall render a written decision within ten (10) days of the hearing. The Town Administrator will schedule a hearing on the matter normally within 5 workdays, although this will be delayed if there is a scheduling problem or by mutual agreement of the parties.
Step #4 If not satisfied with the written decision of the Town Administrator, the employee or the Department Head shall submit the complaint in writing to the Board of Selectmen within five (5) workdays of receipt of the Town Administrator’s decision. In the case of a complaint against the Town Administrator by one of his direct reports including Department Heads, the appeal of the issue must be filed in writing with the Chairman of the Board of Selectmen within five (5) days of the event. The Board of Selectmen may conduct a hearing on the matter and will typically render a written decision within fifteen (15) days of receipt of the complaint. The decision of the Board of Selectmen will be final. (pp. 32-33)
