The Essex Jct. Board of Trustees is withholding basic details of its investigation into employee misconduct, placing an individual’s right to privacy before the public’s right to know.
First mention of the investigation came November 14, when trustees entered a private session at the end of a regular meeting to discuss a personnel matter. Forty one minutes later, they voted to hire an attorney to investigate performance-based allegations against a village official.
Two weeks later, trustees entered another private session to hear the investigation’s results. The session lasted less than an hour, after which village president George Tyler said they would take no further action.
When The Reporter first reported on the allegations in November, Tyler declined to name the accused or the complainant. He also wouldn’t say what the allegations were about nor share the attorney’s findings.
Since then, the village attorney has advised trustees to withhold all further information because of what Tyler calls an “absolute obligation” to protect personnel privacy.
That’s a “disturbing” justification for secrecy, said Justin Silverman, executive director of the New England First Amendment Coalition, a Massachusetts-based group that fights for public access to government.
Silverman said the trustees’ primary responsibility should be to constituents, who have a right to know whether their public employees, whose salaries they pay, are performing jobs appropriately. The village has spent $3,250 on the personnel matter so far, a cost that will increase once it receives all legal invoices.
“When there’s misconduct, we need to know about it,” he said.
Tyler, meanwhile, said the trustees must ensure personnel information isn’t publicized. He said the trustees followed policy in handling the allegations.
“There could be gray areas, but we’re guided by policy, and we’re entirely correct. We’re absolutely correct in our understanding,” he said.
It’s impossible to know if that’s true, considering they won’t say what policy they followed.
Village attorney Dave Barra said the trustees reviewed the original complaint, consulted their policies and acted accordingly. But in that same interview, Barra said he’s unaware of any policy that prescribes how to respond to certain allegations.
Pressed for specifics, Barra said it’s not his place to divulge them. The Reporter shared his response with Tyler, who declined to reveal what policy was consulted, deferring to Barra.
Silverman, the First Amendment attorney, said there’s no way to trust an investigative process if the public doesn’t know how officials conducted it.
He said officials not only need to be upfront about the allegations, but also how they respond to them. That will allow residents to judge if the response was appropriate and the investigation was conducted correctly — without favoritism or any other questionable behavior.
“We’re not able to do that if we’re kept in the dark about some very basic parts of the investigation like what was alleged, or even more broadly, what policy we are dealing with,” Silverman said.
Such secrecy strains the public’s trust, he added, because most people instinctively assume government is hiding something. At that point, people are left to guess.
That didn’t seem to concern Tyler.
“You can make any kind of a story you want out of the information I’ve given,” he said, “and the public can draw any conclusions they wish.”
Indeed, without further disclosure, the public can only examine information already public. Only two village personnel policies call for an impartial investigation: general and sexual harassment.
In November, Tyler declined to name who would investigate the claims since it would reveal the nature of allegations.
The Reporter has since obtained an invoice from Barra, the village attorney, related to the personnel matter. It shows he contacted Burlington attorney William Leckerling, who specializes in employment law, on the night the trustees voted to hire outside counsel.
A day later, Barra spoke with attorney Chris Jensen, Leckerling’s colleague who also focuses on employment law. Jensen’s bio on the law firm’s website says she’s organized, moderated and presented seminars on topics including at-will employment, voir dire practice and sexual harassment.
It’s unknown who Jensen spoke with or how many interviews she conducted during the investigation, since The Reporter’s repeated calls over the last three weeks went unreturned.
The village has also denied a public records request for the investigative report – even a redacted copy – citing exemptions for personal and confidential records. It has yet to respond to a request asking why these exemptions apply.
It remains unclear why two town officials, neither of whom serve the village government in a formal capacity, were consulted given these pervasive privacy concerns.
Barra’s invoice shows he contacted town attorney Bill Ellis six times throughout the two-week investigation, including three sets of phone calls and email exchanges. He also received an email from selectboard chairman Max Levy on November 16 and conferenced with the two a day later.
Levy said he was only involved to stay up-to-date with village happenings. It’s a common occurrence amid consolidation, he said, and the personnel matter was only one of several conversation topics.
Barra, the village attorney, said the town was involved because “there are issues we felt the town needed to be made aware [of].”
Ellis declined to explain his involvement, citing attorney-client privilege, but said he’s billed the town for his services. The town says it’s yet to receive charges.
In a follow-up interview this week, Levy wouldn’t say if the town also employs the employee facing the allegations. He, too, cited confidentiality, and three times said the town and village keep lines of communication “wide open.”
“That’s really all I can tell you,” he said.
Levy denied a suggestion that the timing of last month’s revisions to the town employee handbook – the first in seven years – and town staff ’s budget request for a human resources coordinator who would work part-time in the village, was related to the investigation.
The revisions were in the works for a while, Levy said, and the new position was requested last year but not included in the final budget.
One of many changes to the 30-plus page handbook is new language on harassment, including a general provision titled “investigations/violations” that covers all forms of harassment.
Further explaining the sexual harassment language, Levy referenced a surge of sexual harassment and assault allegations against high-ranking men in Congress and Hollywood.
“We’re just trying to make sure that we’re keeping up with the times,” he said.
Essex officials aren’t the only ones.
Last month, Vermont’s Office of Legislative Council highlighted a dozen concerns with the House’s sexual harassment prevention policy after lawmakers fielded questions over misconduct and their process to address it.
Among the topics for reconsideration: the impact of confidentiality.
Current House policy mandates almost all information about complaints is kept confidential except for in the annual report, where identifying information is removed.
“On one hand, confidentiality protects the privacy of the complainant and accused,” wrote Luke Martland, director and chief counsel, in a report to the House Speaker. “However, confidentiality may also shield repeat offenders, disguise systemic problems, feed an impression that little if anything is done in response to the complaints, erode faith in the policy and panel and discourage victims from coming forward.
“As a result,” Martland continues, “the panel should carefully consider how to best balance these competing interests.”