May 10, 2022 | Town Admin TOWN OF SUTTON Pillsbury Memorial Town Hall 93 Main Street Sutton Mills, NH Sutton Mills, NH 03221 Select Board May 2, 2022 @ 5:00 p.m. Dane Headley, Selectman, opened the meeting at 5:00 p.m. with the Pledge of Allegiance. Present at the meeting were: Dane Headley, Chair; Walter Baker, Jr., Selectman; Michael McManus, Selectman; Tom Schamberg, State Representative; Robert DeFelice, Budget Committee Chair and Trustee of the Trust Funds; Glenn Pogust, Planning Board; Derek Lick, Zoning Board of Adjustment and Moderator; Barbara Hoffman, Conservation Commission Member; Nancy Glynn, Library Trustee Chair; Timothy Hayes, Cemetery Commission and Elly Phillips, Town Administrator. APPOINTMENTS: At 5:30 p.m. Selectman Headley initiated a discussion of the draft Code of Conduct Policy to Chairs and representatives from the elected and appointed Boards, Commissions and Trusteeships. The representatives introduced themselves as follows: Robert DeFelice, Budget Committee Chair and Trustee of the Trust Funds; Glenn Pogust, Planning Board; Derek Lick, Zoning Board of Adjustment and Moderator; Barbara Hoffman, Conservation Commission Member; Nancy Glynn, Library Trustee Chair; Timothy Hayes, Cemetery Commission. Selectman Headley advised that the policy was put together to address issues that have occurred and provide guidelines for members when they are not getting along well. Selectman Headley noted that the Sutton policy was developed through a review of guidelines from other Town’s noting that adopting a code of conduct is a common practice amongst municipalities. Selectman Headley said that this was an initiative-taking measure and hopefully the problems won’t even occur. Selectman Headley sought questions, comments, and input from those present. Mr. DeFelice asked if the policy was specific to Committees and Boards and not for Town employees and was advised that it was and that employee conduct is addressed in the personnel policy. Mr. DeFelice noted that the draft policy address issues pertaining to the Town Administrator. Phillips explained the reference was regarding the process for introducing a complaint to the Select Board, but the behavior of the Town Administrator would be addressed through the personnel policy. Mr. DeFelice recommended charging a quasi-board comprised of the chairs from the various committees to hear the complaints so that everything did not fall on the Select Board. Ms. Glynn said that had been discussed with Library Trustees as well. Ms. Glynn said in most towns there isn’t a single individual that you would go to with a complaint. There is a committee. Selectman Headley said that in the policies he had reviewed either the Town Manager/Administrator gets the complaint or the Select Board. Mr. DeFelice felt that the Chairs from all the Committees should have a voice in the outcome and that would also serve as a great learning curve for the chairs to go back to their board and share (without details) various scenarios and help to mitigate situations before they even happen. Mr. Hayes raised the potential for a confidentiality issue and felt that perhaps a representative from the committee in question could participate, but otherwise confidentiality could potentially be breached. Mr. DeFelice opined that he did not think the actual discussion of a matter should just be in the purview of the Select Board. Ms. Glynn said that in most circumstance that she has seen it has always been a separate committee and not just within one small group. Ms. Glynn asked about who determines when complaints are deemed frivolous and was advised it would be the Select Board. Mr. Pogust asked about the authority of any entity other than the Select Board to be involved in nonpublic session with respect to any other Board Chair or employee, noting that there may be an issue bringing in an ad hoc group who are not involved in the situation. It was noted that there were specific reasons for going into non-public session. Ms. Glynn had suggestions regarding achieving a quorum for the ad hoc committee. Selectman Headley said that the timing for charging such a committee needs to be sorted out. If the complaint is determined frivolous there is no reason to involve others. Selectman Baker felt it was the duty of the Select Board to determine if further action is necessary. In order to determine whether a complaint is legitimate, Mr. Pogust felt that the Select Board could bring individuals involved in the complaint into non-public session for factfinding purposes. Selectman Headley recommended that the Board speak to Town Counsel regarding non-public requirements. Mr. DeFelice emphasized the learning opportunity and that most would appreciate having issues placed before a more expansive board. Ms. Glynn added that there would be more diversity and another voice at the table, and it would take heat off the Select Board. Ms. Glynn asked why would it be just the Select Board and Town Administrator? She felt that confidentiality agreements could be drafted. Mr. Pogust reiterated statutory requirements for nonpublic sessions and conduct. Mr. Pogust felt that once prima facie cause has been determined and then it is going to be public than that would be indicated to invite in a group of chairs that can be part of the discussion and make recommendations. The committee may not have final authority but could provide guidance. Mr. Pogust felt that a legal opinion should be sought as to whether or not there is authority to create such a Board. Mr. Pogust supported a two-tiered approach with the Select Board making the determination as to whether or not there is a need to go forward. Selectman Headley discussed the purpose for the code of conduct which is as a guide for how elected and appointed officials are to behave. Selectman Headley felt that the initial parts of the Administration Section were most important. “When there is bad behavior during meetings there should be the ability for the chair or another board member to address it. Mr. Pogust noted that the Select Board has the authority not to reappoint town officials, and the citizens have the authority not to re-elect them. The idea is to acknowledge that an incident has occurred and make the public aware of it. It provides an opportunity to air a legitimate complaint and a response from the individual the complaint is against. Mr. DeFelice said that he supported the concept. Mr. Lick felt the Select Board should get an opinion from Counsel as to whether or not they have the authority to appoint a secondary board for reviewing complaints. Mr. Lick said that the statutes would say at what point an appointed member should be removed and that also should be clarified with Counsel. Mr. Lick noted that item #5 on page 6 was unclear. His assumption was that if there was a complaint against a Select Board member that Select Board member should recuse themselves. Mr. Lick observed that the Town Administrator does not fit there. In item B, it should be clarified that is referring to confidential complaints. Mr. Lick discussed the attorney disciplinary process. Mr. Lick suggested that further thought should be given to providing the complaint to the person involved so that they could respond to it. Otherwise, how do you determine whether or not the complaint is frivolous. Ms. Glynn said that there was no appeal process in there which was also brought up by other members of the library board. Mr. Lick also said thought should be given to what aspect, if any, is non-public once you bring it out into public session. Mr. Pogust felt that an opinion regarding the authority for the sanctions should be sought, and findings drafted that should become part of the record. Selectman McManus emphasized the need to ensure that those taking minutes provide an accurate account of what occurred. If the incident is not captured, it sets up a “he said/she said” scenario, and there is absolutely nothing there. Phillips asked if a point of order is called is the minute taker obligated to take a verbatim account of the dialogue? Selectmen McManus and Headley agreed that it has got to be in there. Mr. DeFelice said the Chair or Vice Chair could raise the point of order. Mr. Pogust said any committee member could raise a point of order, i.e. “I want the record to reflect that this individual said X,Y,Z.” However, this might make the individual causing the concern feel validated in their behavior. Mr. Pogust felt that the point of order is not the complaint, it is a record of what may have happened that is objectionable. The next step would be for the person making the point of order to determine that it is serious enough to make a complaint to the Select Board under the code of conduct policy. Selectman Headley said that the way he foresaw it working was that during the meeting when a committee member becomes offended by something said, they would say “point of order I was offended by what so and so said about such and such.” It gives the opportunity at that point for the “offender” to apologize and say that was not what I intended to convey with my statement. The meeting would move on. Selectman McManus provided an example of when he called a point of order based on the behavior of two members who were out of control. They immediately stopped. He felt that it was unlikely that this was recorded in the minutes. Selectman Headley opined that he did not feel that members of a committee should perform minute-keeping duties. Mr. DeFelice explained his committee’s current situation having a member of the Budget Committee taking notes. Mr. DeFelice added this was just for an annual administrative meeting to determine the time and dates of the Budget Committee meetings. In the future, it was anticipated that an independent notetaker will be recording the minutes. Selectman Baker clarified that the Code of Conduct was to provide guidance to officials on what the expectations are for behavior. Selectman Baker described some of the complexities of serving as an ex-officio member, particularly as they pertained to personal opinions of the ex-officio versus opinions of the Board/Committee. Mr. DeFelice reviewed some of the challenges of conducting a meeting when members are overly enthusiastic or displaying animosity. Ms. Hoffman questioned the wording on Page 3, C2 and asked for clarification regarding disposition. Phillips felt that section should be deleted, because anything pertaining to the Town Administrator would fall under the personnel policy. Selectman Headley and Mr. Pogust clarified that the section was intended to address non-interference with the employee performing his/her duties. Selectman Headley observed that there some officials that felt that they have some kind of control over what/when and how the Town Administrator should perform their duties. Mr. Pogust felt that was covered in section D. Ms. Hoffman asked for clarification of Section IV on page 4 about the Town Clerk providing a copy of the policy to all individuals seeking elective or appointed positions and was advised that is because officials file for office and are administered the oath through the Town Clerk, and the Clerk is the official keeper of records. Ms. Hoffman pointed out some rewording that should done on page 6B. “Will be weeded out” should be deleted. There was a lengthy discussion regarding vindictive complaints. Ms. Glynn brought up several items that were identified by the Library Trustees. Concern was expressed regarding the social media piece. Two of the trustees felt that the way that it was worded that the Town was monitoring personal social media account and questioned whether or not they could be penalized for writing something on their own social media accounts. Selectman Headley said that a Committee Chair had raised a concern about an employee who had posted something on social media, adding that he did not think it was a good idea for people who are working together to shoot each other down and this should be discouraged. Mr. Pogust felt that the clause was intended to alert officials to be mindful of their public communications. Mr. Lick raised First Amendment concerns, but setting that aside, and referencing page 1, section III., add “on social media or otherwise” after the word “communicating.” Mr. Lick also observed that the social media clause was placed under the section pertaining to employees. Ms. Glynn felt that the part about filing a complaint, if it is about the Town Administrator, and they wanted to bring it to the Select Board is it publicly available as to how to do it so it is not through the Town Administrator. Phillips said that you would make an appointment to meet with the Select Board to discuss a personnel matter. Ms. Glynn expressed the need to have a direct access to the Select Board and was advised that a specific email was being established with a Select Board point of contact. Mr. DeFelice cautioned though that the Select Board functions as a Board and not individually. The point of contact will still need to coordinate a nonpublic session through the Town Administrator. Selectman Headley said that the Board was going to consider the comments from this meeting and review them with Counsel. When the policy is finalized, they will notify their fellow officials and the public of the proposed adoption of the policy. Once adopted, public officials will be provided with a copy of the policy and will be asked to sign it. This will be done annually. Mr. DeFelice said that this should be specified in the document. It was noted that officials are not required to sign the document, but whether or not they do, will be a matter of public record. Mr. DeFelice felt that there should be a mechanism for public officials to obtain information directly from staff when it pertains to their board. Selectman Headley said requests are necessary, demands are another matter. On behalf of the Board, Selectman Headley thanked the officials for their input and said that the draft should be finalized in the next week or so and welcomed any subsequent questions/comments. Selectman McManus moved to accept the minutes from April 25, 2022, as written. Selectman Baker seconded the motion. The motion passed by a unanimous affirmative vote. The Board reviewed and approved the following manifests: Vendor Manifest: $ 7,721.12 Payroll Manifest: $13,365.92 BUILDING PERMIT: A building permit for the Sara Harkins Revocable Trust, Map 04-244-418, Meeting House Hill Road, for a dwelling was withdrawn at the applicant’s request. The Board approved a building permit for William Knopf, 04-226-218, Roby Road, for a roof mounted solar array OLD BUSINESS: The Board issued a Zoning Enforcement Letter to Laylo Enterprises, 04-072-018. The Board agreed to review polices from other towns as a guide to update the Sutton’s Personnel and Purchasing policy. In addition, their will be a review of job descriptions for a proposed building and grounds position. Selectman Headley will focus on the personnel policy. Selectman Baker will focus on the Purchasing Policies. Selectman McManus will focus on a Building and Grounds job descriptions. The Board members will compile their suggestions for review at a future Select Board meeting. Phillips reported that the town is awaiting a Writ of Possession for the Stotler property and the cleanup is in the process of being coordinated. SELECTMEN’S COMMENTS: The Board had a general discussion regarding the role of the chair for the conduct of meetings. Selectman McManus recommended recording every meeting. The Board will determine if there is recording capability through the current PA system. The Board discussed use of the former ash dump for storage of reclaimed pavement. There being no further business, the meeting was adjourned at 7:30 p.m. Respectfully submitted, Elly Phillips Town Administrator