Questions from Vilchock v. Nottingham Board of Selectmen

The Town Attorney asked, “Did you do something wrong, Mr. Vilchock?” Now it’s the citizens' turn to ask if their government did something wrong.

The common question on people's minds following the case of Vilchock v. Nottingham Board of Selectmen is whether the judge will rule in favor of Vilchock or the Board of Selectmen.

There were about 15 hours of testimony under oath. The condensed version of this, published across three articles in the Nottingham Blog - Day 1, Day 2, Day 3 - was about 22,000 words - about a quarter the length of a typical book, about 2 hours of reading. That’s a lot of information - and there was more information in the exhibits. This is a lot to digest.

The statute at issue in this was RSA 154:5. The relevant section is:

…the tenure of office shall depend upon good conduct and efficiency. The chief … shall be technically qualified by training or experience and shall have ability to command firefighters and hold their respect and confidence. Subject to such written formal policies as may be adopted by the appointing authority, each chief … shall have authority to direct and control all employees of his or her department in their normal course of duty and shall be responsible for the efficient and economical use of all department equipment. Such chief … shall be subject to suspension without pay or dismissal only for cause, and after he or she has been presented with a written specification of the reasons. Upon such suspension or dismissal, the chief … shall be entitled to a hearing, on the merits and reasonableness of the action…. The court shall have the power to affirm, modify or negate such suspension or dismissal, based upon its findings.

It’s not obvious how the judge will decide the case. If it were, it probably would never have gotten to court. This publication is specifically about Nottingham town government. The focus of this article will be on the operations of town government, not on speculations on how the judge will decide the case. My wife, who proofread the articles about the hearing, thinks the judge will decide in Vilchock’s favor, on the grounds of there having been a process failure so severe as to make the decision unreasonable. I think the judge will decide in the town’s favor, on the grounds that Vilchock had lost the respect and confidence of his staff. We both think the decision could go either way, and we both think the judge will decide against the town on the “hold-over” appointment issue. 

There’s also the question of who won in the court of public opinion. Vilchock has already once run for office, staging a write-in campaign for Selectman in the last town election. The information provided to the public by this hearing will affect not only his political aspirations but those of the Selectmen involved in his case.

Regardless of these questions, it’s pretty clear that almost everyone lost - including all of the citizens of Nottingham. They either suffered reputational harm, mental anguish, financial costs, wasted time and energy, or short-term degradation in public services. 

Perhaps a few people won. Mr. Vilchock’s attorney,  Craig McMahon, did well. There’s almost no precedent for a case like this. If he wins in court, he will be praised. If he loses, he likely won’t be faulted. Perhaps I also won because I got lots of new subscribers for the Nottingham Blog. There are now over 600, and lots of readers come in via Facebook or just come directly to the website. Articles now get 1k to nearly 2k page views.

The case will likely provide legal clarification on whether a board’s failure to re-appoint a chief -  while behaving as if the chief was really the chief - does or does not mean that the chief is in the status of a “hold-over” who may dismissed by the board at will, without the protections in RSA 154:5. This may be beneficial to resolve future disputes.

And, just maybe, the citizens of Nottingham will end up with a net benefit from the information that this hearing provided to them about the functioning of Nottingham town government. We shall see.

One of the very last questions at the hearing was the Town Attorney’s question to Vilchock, “did you do anything wrong?” Vilchock objected to the vagueness of that question. 

It’s now time for the citizens to ask, “did our town government do anything wrong?”

Questions About the Investigation

Investigator Stevens adamantly denied advising the board to fire Chief Vilchock. She said she recommended actions such as training programs to fix the problems in the department. These recommendations were redacted in the version of the report released to the public. I filed a complaint with the state’s Right to Know Ombudsman about this redaction. It looked suspiciously like something that should not have been redacted. The Town Attorney moved to prevent the Ombudsman from considering my request. The status of this action is that the Ombudsman will be releasing a decision on in early July about whether the report was improperly redacted, but that decision will not compel the town to release the improperly redacted text. Avenues remain for the town to prevent the release of the information. 

Why did the board so strenuously not want the public to know what the investigator’s recommendations were, and that the investigator did not recommend firing Vilchock?

In the investigation, the Chief was given an opportunity to recommend individuals to be interviewed. These recommendations included four individuals not in the department. Except for individuals who had already been interviewed, none of the Chief’s recommendations got interviewed. Was this fair? 

The investigator did not think Vilchock’s attorney should have been present for Vilchock’s interview. Was Vilchock’s request unreasonable? Did the board err in granting this concession? Did the board err in resisting it? 

Given that the nature of the complaints had been withheld until the interview, was it reasonable for Vilchock to have issued a blanket denial of all of them? Might his attorney have recommended this course of action to him?

Did the Selectmen, the Town Administrator, the Town Attorney, and the investigator all share the same fundamental understanding of the target of the investigation? There was testimony that the investigation was about the functioning of the department; meanwhile, by appearances and results, it appeared to have been an investigation of Chief Vilchock.

Questions About Reporting Structure

The testimony revealed questions about whether the Fire Chief was a direct report to the Town Administrator or the board. That such an important issue, an issue that affects the routine operation of town government, should be so unclear was amazing. The Chief thought he reported to the Town Administrator. The town’s personnel policies said he did, but Scruton and Stearndale testified that the Chief reported to the board.

If the Chief directly reported to the Town Administrator, then why didn’t Interim Town Administrator John Scruton intervene in the operations of the Fire Department when he learned about serious accusations about that department at the beginning of February 2023? If the Chief reported directly to the board, and the role of the Town Administrator was only to advise the board, why did Interim Town Administrator John Scruton not immediately advise the board in early February 2023 that he had been made aware of serious accusations about the department? Why did Scruton not inform the board of the allegation until March 20 - over 45 days after he first learned about problems? 

During the hearing, much was made of whether the Chief failed to report to the town a misaligned bumper and whether this was a serious failure in his duties. Wouldn’t failure to report to the board that there were reasons to be concerned that the Fire Department was dysfunctional be a serious failure in the duties of the Interim Town Administrator?

Does the town need to clarify the reporting structure for the roles of Town Administrator, Fire Chief, and Police Chief?

Questions About the Interim Town Administrator

Regardless of whether the Chief was a direct report, should the Interim Town Administrator have met with a department head - one responsible for a huge portion of the town’s budget - more than once in a 5-month period? 

If there were employee complaints about a department, shouldn’t the Interim Town Administrator have started visiting the department, if only to advertise his accessibility? Might it have been useful to observe what happened at the department’s monthly meetings in February and March? 

If there were concerns about the adequacy of the Standing Orders, wouldn’t it have been reasonable for the Interim Town Administrator to at least make a cursory review of them, or to ask the opinion of someone more qualified?

When a person you think is your boss - or is at least in a higher-ranking position than you are - complains about you in emails to top management, is it reasonable to conclude that your boss is out to get you and that you have a bad working relationship? Is it reasonable for the boss to disagree with such a conclusion?

The town hired MRI (Municipal Resources, Inc.) for assistance in keeping the town running smoothly during the period after which its former Town Administrator left and a new Town Administrator could be onboarded. Did MRI successfully deliver on this?

Chief Vilchock made an ethics complaint to the board about Scruton in February. Was it reasonable for him to have done so? Did Scruton engineer the March 20 meeting to retaliate against Vilchock?

Was it unreasonable or unethical or unseemly or just coincidental for the Town Administrator to recommend as methods for addressing the complaints about the Chief only methods that would provide opportunities for his employer, MRI, to sell additional services to the town?

Was Scruton’s failure to present the papers to the board to formally re-appoint Vilchock as Chief due to negligence or ill-will, or was it an intentional political maneuver? If he and the board believed that the Chief was simply a “hold-over,” then why didn’t the board just mark the re-appointment papers as rejected and declare the position to be vacant?

If Sterndale had still been Town Administrator in 2023, would the process and outcome have been different?

Questions About the Accusations

On the basis of the allegations the board heard on March 20, was it reasonable for the board to conclude that drastic action was required?

Why did the board not only fail to document the complaints, but also it appeared to actively resist doing so? In the many weeks during which the Chief was on administrative leave and the issue came up that the complaints were not documented, couldn’t the board have addressed those issues by simply documenting the complaints?

Was it reasonable and ethical for the board to withhold informing the Chief of the nature of the complaints until the investigator was to disclose them in the interview? 

If mutual aid is called for by firefighters in transit, can they be said to be on the scene? Did they know anything about the incident that was not available to others monitoring the radio traffic? 

Why is the Fire Department sending out routine repair work for the Utility Vehicle - a common truck, of the type sold to consumers - when it has a mechanic and an automotive engineer on staff and a garage with a heated floor?  It was never determined who drove the Utility Vehicle to the January 2 fire. It was determined that it was not the Chief, as he drove a fire truck there. Did someone intentionally drive the Utility Vehicle there for the purpose of manufacturing a safety incident to blame on the Chief? If the Utility Vehicle was so obviously unsafe to drive, why did the Chief drive it to HCR himself to have it repaired? Would the department’s normal practice for such things be to have the vehicle towed because it was so unsafe to drive?

Why did the town present no evidence that the misalignment of the bumper on Engine #2 affected the safety or functionality of the vehicle?

It’s been nearly a year since Vilchock was terminated. Chief Matt Curry conceded that many of the suggestions for addressing the claimed deficiencies in Standard Operating Procedures had yet to be implemented. If that’s the case, were the prior deficiencies really a major issue?

Only one witness testified that he personally observed the Chief make a racial slur: Vash Rosfield. Rosfield also testified that right before he joined the Nottingham Fire Department that he was unemployed, that his prior employer was the Laconia Fire Department, and that the reason he left that department after less than 4 months was because of racism. Is this suspicious?

Regardless of whether the Chief was failing to manage the department properly and needed to be replaced by the board, does the nature of the accusations made against Vilchock, and the factual support of those allegations, give reason to be concerned there may have been deliberate efforts to falsely incriminate the Chief? 

Questions About Firing Processes

Should Chief Vilchock have gone ahead and fired Firefighter Frank Bruno, as encouraged by Deputy Chief Curry, despite the fact that he had not given Bruno any written warnings?

Should the board have fired Chief Vilchock despite the fact that it had not given him any written warnings? 

The only options the board considered with regard to action on the complaints were options between two different investigators. Why did the board make no effort to persuade Vilchock to retire? Or to take a face-saving medical leave while issues could be sorted out? Why did the board not consider bringing in consultants to address the problems? Why did the board consider only one option: a $20k investigation of a person who earned a $11k/yr stipend? Why didn’t the board consider options that would have been less disruptive and less harmful to the reputations of not only the Vilchocks’, but of Nottingham’s Fire Department and town government?

Questions About the Board’s Handling of Public Safety

The board knew about the allegations that Chief Vilchock micromanaged. The board knew that he had been Chief for 17 years and spent a large amount of time working at the Fire Station. Why did the board apparently fail to take into consideration that abruptly putting the Chief on leave would likely produce operational problems for the Fire Department - potentially negatively impacting public safety?

Questions About the Board’s Handling of Finances

The board presumably knew about the obvious costs:

• The investigation.

• The cost for an Interim Fire Chief.

• The cost to have per diem staff cover during the period of paid leave.

It appears that the cost of these ended up exceeding expectations. It also appears that there were large amounts of unanticipated costs, the biggest one being having to defend its actions in court, but there were many others, both out of pocket and about taking up time that could have been used for other things. Did the board properly think through the financial costs of its chosen course of action? Did the board fail in its responsibility to look for and consider more cost-effective solutions? Was a $20k investigation needed to determine whether the Chief still held the respect and confidence of the members of the department? Could a secret ballot of the members of the department have determined this at much less cost?

If the Chief had failed to get the department fully staffed by the end of 2022, was the Chief at risk of having the board or the Budget Committee disregard the intent of the 2022 warrant article to increase the staffing of the Fire Department so that it could achieve 24/7 coverage and instead to in effect cut the department’s budget so that the funds could be either used elsewhere or taxes could be lowered?

Questions About the Town Attorney’s Performance

Why did the Town Attorney include in the Chief’s termination letter reasons for termination about which the investigator’s report explicitly said there were no findings? Why did the Selectmen not question the specifics of this letter when they knew the investigator’s conclusions?

Was the Town Attorney’s argument that the Chief was not entitled to a hearing because the board had failed to re-appoint him an honest, ethical, and reasonable argument?

Was the Town Attorney’s accusation, made without evidence, that the Chief had to remove a weapon from the Utility Vehicle when he was required to relinquish it an honest, ethical, and reasonable accusation?

Questions About Staffing 

By all accounts, everything in the Fire Department seemed to be going okay until the department added three new full-time members in 2022. Most of the serious issues brought up in the hearing involved either Firefighter Frank Bruno or Firefighter Vash Rosfield. Did the Chief err in not firing them promptly? 

What would have been the ramifications for the Chief and the Fire Department had the department been unable to achieve full staffing in 2022? 

Is the “combination” model - a mix of volunteers and employees - working out well for Nottingham? If not, should anything be done about it?

Does Nottingham need to improve Firefighters’ pay to make it easier to recruit? Does Nottingham need to increase the stipends it provides to volunteer members or to provide them with hourly pay to reduce the need for full-time and per deim employees? 

Does Nottingham need to make serving in the Fire Department more attractive for residents of Nottingham and to rely less on staff who live out of town, particularly those who do not live in neighboring towns?

Should the voters change their minds about the 2022 warrant article that funded 24/7 staffing of the Fire Station and revert to the previous level of staffing?

Does the method of selecting a Fire Chief need to be changed? 

Does the Fire Chief’s compensation need to be increased?

Can we be confident that the problems in the Fire Department were solved by terminating Vilchock? Can we be confident that none of the department’s employees have reason to be in fear of retaliation?

Has the board’s handling of the Chief’s termination harmed the town’s ability to recruit and retain department heads and other managers?

Has anything come to light that would affect the town’s evaluation of the services it has received from MRI and Upton & Hatfield and its decisions in the future about obtaining services from MRI and Upton & Hatfield?

And one final question about staffing: will anybody ever be held accountable?