AYER -- Torn by conflicting advice, the Personnel Board visited the selectmen last month seeking clarification from town attorney David Jenkins as the board explores the reclassification request of Assistant Treasurer Melisa Doig.
Doig has crafted a new job description and has requested being reclassified as a payroll/benefits manager, a post that does not exist at this time. The Personnel Board has made various inquiries to determine who is the "appointing authority" for Doig as assistant treasurer.
Selectmen split 3-2 over the issue, with the majority opining that selectmen appoint the assistant treasurer. The separately-elected town treasurer, Stephanie Gintner, claims she is Doig's appointing authority.
Personnel Board member Brian Muldoon called a Department of Revenue attorney, who stated Gintner as treasurer is the sole appointing authority. The Personnel Board awaits written confirmation of that stance.
"I'll give an opinion that will probably disagree with everybody," said Jenkins. Jenkins said state law requires both -- the treasurer to appoint an assistant treasurer, and then selectmen to approve of the candidate. In that regard, Jenkins said the assistant treasurer post is the "only position" that requires the dual-track approval process and so is "unique" among municipal posts.
Playing that forward, Jenkins theorized that the treasurer and selectmen in tandem act to remove an assistant treasurer "because an employee can only be removed in the same manner in which they're appointed.
Since the personnel policy dictates that the "appointing authority" is the final arbiter of the reclassification request, Jenkins said, "My best opinion is that the treasurer and the BOS act as joint appointing authorities for the assistant treasurer."
Jenkins said the reclassification process starts with an employee filing his or her request with the town administrator. Then the request is vetted by the Personnel Board, which makes a recommendation to the appointing authority.
Jenkins counseled the Personnel Board, "My recommendation to you is -- even assuming I'm incorrect on the appointing authority -- your action precedes action by the appointing authority. ... Whether or not there's joint authority or not, it doesn't remove your authority to act on the merits of the reclassification study."
"I believe, for the sake of the integrity of the policy, the integrity of your board, the employee and the treasurer, that you do whatever you're going to do with regard to the merits of the reclassification study and that you transmit our findings to both the Board of Selectmen and the treasurer so we can figure out what happens at that point in time."
"So who is the appointing authority then?" pressed Muldoon.
"We're waiting to hear back from DOR," said Personnel Board member Lisa White. "What if it (the DOR legal opinion) is different from yours?"
"Well, I'm going to say I'm right," said Jenkins with a laugh. "I don't know. I'm giving you my best shot -- this is my best opinion."
"It's not exactly a moot question because we may have to address it down the line," agreed Jenkins. However, "given the sequence of how the events take place, it's important for you to act on the merits of the reclassification."
Selectman Pauline Conley quizzed Jenkins, stating the assistant tax collector is also appointed jointly by the tax collector and selectmen. "You skipped the assistant tax collector. I wonder if that was intentional ... (or), for lack of a better word, an oversight."
"You think I'm trying to rig?" answered Jenkins. No, said Conley. But Conley noted that selectmen habitually re-appoint the assistant tax collector annually but do not do so for the assistant treasurer.
Town Administrator Robert Pontbriand admitted the selectmen's office cannot locate minutes indicating Doig was ever formally appointed to the assistant treasurer post by selectmen when she started in 1998.
Selectman Frank Maxant noted that the law states the assistant treasurer "may" be an employee of the treasurer's office. "Doesn't that shift the power (to appoint) towards the treasurer?" asked Maxant.
"I see what you're saying," said Jenkins. "I think it's a reasonable argument."
"It seems to me the treasurer doesn't want this to move forward," said Muldoon. "If there's only one (appointing authority), how can we move forward?"
"Your role in the process is to act on the application," reasserted Jenkins. "It places an almost fiduciary responsibility on the board. I believe the employee is entitled to your action. I say that because if you act favorably on her reclassification and the treasurer blocks that, hypothetically she may have some rights."
"Thank you for the work you've done, sometimes in a very contentious atmosphere or environment," said Luca to the Personnel Board. Luca asked Muldoon if the DOR attorney was advised that Ayer has an elected and not an appointed treasurer. "It's got to be framed that way to DOR."
"I'd have to think about it," said Jenkins. "At this point we have an elected treasurer. This is murky enough as it is."
"Does an appointing authority change when there's a reclassification?" asked Luca.
"No, it should not," said Jenkins. "I'll try to find some legislative history. Some of these statutes are quite old, so the legislative history is quite old."
No appointment record found
Nashoba Publishing formally requested Doig's appointment letter on Sept. 30. The record request was not satisfied. Instead, Pontbriand provided Nashoba Publishing and several other town officials a copy of a Sept. 2, 1998, letter addressed to Doig from former Treasurer John Horgan that outlines her pay rate.
"I'd like to know if the assistant treasurer was ever formally appointed or just hired with that title," said Gintner.
"We have an appointment letter," said Fay.
"That's a hire letter," said Gintner. "That doesn't say the assistant treasurer was formally appointed to that position."
"To my knowledge, that's the only document we have," answered Fay. But that "doesn't mean it doesn't exist."
Town Administrator Robert Pontbriand confirmed that "the town clerk has nothing in his vault or records" regarding any appointment letter for Doig. "(Her) personnel file did not have a letter in it."
Pontbriand said he and selectmen secretary Janet Lewis "have scoured the archives for the minutes of the Board of Selectmen. This goes all the way back to 1998. We have not found minutes that indicate a vote of an appointment. That search continues."
"I'm assuming the vote was legal and lawful," said Jenkins. "The treasurer has been paying her as assistant treasurer since she's been here."
"Does that make her a common law assistant treasurer?" asked Maxant.
"She's here," said Jenkins. "We all tread on very dangerous ground when we raise that argument."
"I challenge that answer," said Gintner. "She could be called anything for all these years. But if it's not appointed ..."
"Let me be direct since you're being direct," answered Jenkins. "You now raise issues as to whether she's a valid employee. You open the town up to a potential whistle-blower claim because the employee has filed a complaint."
Gintner said the struggle with Doig is complicated. "There are three different branches off this head. The reclassification is just one."
Doig had alleged in Sept. 2011 that Gintner violated the town's email policy by deleting Doig's emails while Doig vacationed in Aug. 2011. After months of closed-door meetings, selectmen ultimately voted 3-2 to censure Gintner, though the board admitted it lacked direct evidence of any wrongdoing on Gintner's part.
Doig filed a Sept. 27 letter to selectmen, adding onto her prior complaints against Gintner. While it was on the agenda for discussion on Oct. 11, Doig retracted her added complaints just before Thursday's meeting.
"The question as to whether her position was ever formally appointed is separate from her complaint," said Gintner. "I'm not a whistle-blower."
"The whistle-blower I was referring to was the assistant treasurer, not you," said Jenkins. "The assistant treasurer may have a whistle-blower claim against you, meaning she may sue you saying you prevented her reclassification as retaliation for her filing a complaint against you. What I've tried to do with you repeatedly is to try to warn you that you're trying to open yourself up to litigation."
Not so, said Gintner. "This is the first time I'm hearing this explained. You didn't sit down and counsel me this is what could happen."
Jenkins was asked which stakeholders town counsel represents. Fay answered that selectmen are the chief executives "by virtue of our elected post (and) we've retained counsel in that regard."
Fay agreed that Jenkins represents the selectmen "and we represent the people."
Maxant disagreed. Town counsel should "keep the officials' feet to the fire, not concoct defensible positions for what we're doing as not right," said Maxant. "Try to represent the law so we don't violate, shade or spin it in any way."