Minutes of the Chebeague Transition Committee March 29, 2007 at 5:00pm at the office of Sevee Maher, 4 Blanchard Road, Cumberland. (Accepted 4/4/07
Members present: Donna Damon, Mark Dyer, Leon Hamilton, David Hill, John Martin (Chair), Jim Phipps, Doug Ross and Carol White
Absent: Stephen Todd.
Beth Howe served as secretary.
The meeting was called to order by John Martin at 5:05 PM.
The purpose of the meeting was to meet with attorneys Peter Lowe and Kevin Beal of Brann and Isaacson about legal questions related to transition.
Donna Damon provided a list of questions from the Committee. Peter Lowe said he would answer them in writing. Some things will need more research since Chebeagueıs situation is unique. He thought it would be useful for this meeting to deal with some background about the transition and with questions related to hiring.
Peter Lowe started with the relationship between the Transition Committee and the selectmen. Donna Damon and David Hill were involved in drafting the language in the law about the transition. David used Frye Island as a model, but they had no provisions about transition. There was discussion about the powers of the Transition Committee members. A key phrase is that they can ³engage in other necessary activities² which covers things like letters of intent and MOUs. There was some wording about raising and spending money but that was taken out. Peter thinks that the TC cannot make Town policy. That is a function for the selectmen. Donna Damon asked for an example. Peter said that in the area of education it should not be the TCıs role to determine the curriculum. In land use, it is not their role to revise the ordinances, just to adopt ones that enable the transition to go smoothly.
David Hill asked whether determining job benefits was policy-making or not. Peter said that prospective employees need to have information about that and it will be included in MOUs so that was legitimately within the role of the TC.
Donna Damon asked whether the TC should not hire people for more than a year. Peter said that was not required but he thought initially it would make sense not to make a commitment longer than two years. After that a superintendent or administrator would likely want a longer contract as a protection against changing political winds. Donna said she thought that new employees should have a hear of probation with reviews at 6 and 9 months. Peter said it is important to state clearly in the hiring contracts that the agreement must be ratified by Town Meeting.
Donna Damon asked whether there would have to be a separate article for each MOU. Peter said that some bundling would be reasonable One article could include a number of MOUs as long as they were available to be looked at before the meeting. When it was taken up at Town Meeting there could be discussion of the various parts.
Timing of transition elements:
Peter read section 4 of the secession bill.
³Within thirty days prior to, July 1, 2007, a justice of the peace . . . may issue a warrant to any legal voter in the Town of Cheb4eague Island directing that legal voter to notify the municipal inhabitants of a public meeting to select municipal offencers and school board members and to transact municipal business to be held at a time and place specified in the warrant. Notice to the municipal inhabitants must be provided at least 7 days prior to the meeting. Effective July1, 2007, municipal officers and school board members selected at the meeting are vested with all of the powers an duties that other duly elected municipal officers and school board members . . ³
So it would be possible to call a ³public² (not a ³Town²) on June 1, to be held after June 7 and before June 23 to elect selectmen and school board members. This is not required, however. Usually selectmen make the warrant articles, but they could only do this after they were given power on July 1. If they posted a Town Meeting notice that day, the first Town Meeting would not occur before July 7. The Transition Committee could draft warrant articles that the Selectmen would accept. There would be no actual overlap in power since the Transition Committee would cease to have power on July 1 when the selectmen took it on.
This analysis of the bill created a stir among the TC. Donna Damon and David Hill said that since the fall the TC has been telling people that the selectmen and school board could not be elected until July 1 and that would be the day of the first Town Meeting which would also adopt the budget and Town ordinances. David thought that electing the selectmen and school board earlier might open the door to a rocky transition. The selectmen might chose to rewrite the warrant articles worked out and recommended by the TC. Carol White said that she could see a benefit to selecting the selectmen and school board prior to the first Town Meeting. She thought that in reality the new elected selectmen and school board members would not rewrite the warrant articles and it would be good if they had a chance to review them before Town Meeting. John Martin also thought it would be an advantage to elect people before the first Town Meeting. They could get up to speed pretty fast. Donna thought that if the selectmen were to have any real role, the Town Meeting would have to be pushed out till later in July.
Peter suggested that he and Kevin Beal do further research and prepare a letter about the various alternatives. They know that the earlier election is legal, with the selectmen reviewing the warrant articles.. They would explore further the legal status of having the first Town Meeting on July 1 elect the selectmen, the school board and act on all the articles in the warrant. Jim Phipps said the letter should be done. If the TC is to change the path it had decided on, it needs to have the arguments and evidence laid out.
Peter asked how the TC was planning to have the selectmen and school board members elected. Donna Damon said her subcommittee had decided on having them elected on Town Meeting day by paper ballot. John Martin said he was not so vested in the decisions made and that he didnıt think that everything would be lost. Donna said she was only concerned about the logistics of having two meetings and getting people together for the meetings. Jim Phipps said that he did not see this as an issue.
Mark Dyer asked if John was worried that the TC might lose face if the process were changed significantly at this point. John said he was only concerned about doing what is legally right. Kevin Beal said that the advantage to having the earlier election is that the officials would be able to get up to speed and invested in the recommendations. He asked what the plans and expectations were for the July 1 now. Donna said she did not want to do anything illegal, but having the Town Meeting later would drag things out. There were fireworks and a first day cover planned around the first Town Meeting. Leon Hamilton said he wanted to know about the legality of the various options.
David Hills said that he thought the later start might create a problem for a goal that the TC had set earlier to have the Town open for business on July 2. It had to be up and running, ready to issue marriage licenses, death certificates and other regular Town business. He is worried about the loss of face. He asked whether the selectmen would be able to call the Town Meeting before July 1. If there was not Town Meeting until July 8, how would the Town Administrator and the School Superintendent function during the first week.
Donna Damon said it would be impossible to have the election of selectmen before the Town Meeting because it would not be until the first Town Meeting that a decision would be made on how many selectmen there would be. David said he thought it might be best to have Town Meeting on July 1 and elect the selectmen before that. Peter said he thought there is room to do this in the state statute governing Town Meeting.
Mark Dyer asked whether it would create a conflict of interest for someone on the TC to run for selectman? Peter said that, off the cuff, he thought not because there would be no actual overlap of effective power. Even if the selectmen were elected before July 1 they would not have any power until July 1 when the TC would go out of existence. Jim said that having non-TC members as selectmen would make it harder for the selectmen to get up to speed on the warrant. Leon Hamilton said that in any case the warrant articles will be available early in June, so anyone who wanted to run for selectman would be able to read them early on.
David Hill said he had a general question about the warrants. Would Peter Lowe and Kevin Beal be able to give the TC a list of articles that would need to be in the warrant. Peter said yes.
Donna aside if there needs to be an article to establish the School Department. Peter said he thought that would happen automatically [?????]. Donna said that her subcommittee had seen a state law that said that the Selectmen cannot set a date for the school budget to be submitted. Peter said he would explore this. It may flow from the logic that the selectmen and the school committee are both elected and in the Town organization chart they are on the same line and co-equal in power. In an on-going town the Superintendent and the Town Administrator would normally work together.
Donna asked about the difference between exempt and non-exempt employees (Q. 11 on the sheet of questions attached). Peter said that in order to make a decision as to whether an employee is exempt or non-exempt the normal thing to do would be to look at the job description. Exempt are salaried and non-exempt are hourly and get paid overtime. But the state and Federal laws on this are a little different and each has detailed tests for deciding whether a job is in one or the other category. Policy-making and supervisory jobs are exempt. Non-supervisory and non-policy-making are non-exempt. The lead custodian or the head bus driver might be exempt but a basic custodian or bus driver would be non-exempt. The reason to be careful about the distinction is that if someone is classified as exempt and later argues that they are non-exempt, they can demand to be paid overtime for all hours worked beyond the usual full time.
Donna asked how things would work if someone worked different amounts of time on different days. Peter said that a bus driver or a custodian would be hourly. If they work over 40 hours per week, however it is spread over the days, they would get overtime. They would have to fill out time sheets and show the actual hours they worked. Mark was worried about having the work be busy and then slack during the day. People can easily nitpick and say that the employee wasnıt working during the slack time. Peter said that is what the Superintendent and the Administrator are there to manage. Leon Hamilton asked about the shellfish warden and harbormaster who would work more in the summer than in the winter. Could the personıs pay be equaled out across the year. Peter said that would not be possible. It would be like accumulating comp time. Donna asked if you could have a contract with the harbormaster. Peter said that would be circumventing the law. Mark said he would like to have Peter look at all the job descriptions and determine whether each job was hourly or salaried.
Jim Phipps said he thought there was a minimum salary that any exempt employee had to be above. Peter said he thought it was in the mid-$30,000s. Jim said that the IRS has rules that if two people make similar salaries one cannot be a contract worker and the other salaried.
Carol White asked about questions during job interviews. How far is it possible to delve into a personıs cv before the questions would become ones that had not been asked of each candidate? Peter said that for jobs like Superintendent and Administrator there was no expectation that interviews would follow the same script exactly. The same core questions need to be asked, but they may lead in different directions.
There are some questions that are not allowed – asking about health problems or disability, though you can talk with a disabled person about accommodating their disability. Mark Dyer asked whether it would be appropriate to ask ³do you think there is any reason why you could not carry out the requirements of this job/² Peter said that is a good question but it does have to be asked of all candidates, mot just of someone who the interviewer thought might not.
Donna Damon asked whether it is legal to require a physical exam. Peter said that it could be required but it would only be required of someone who is offered the position. The procedure would be to arrange to have a doctor who understands the requirements of the job and they would do the examination to see if the person could meet them. The same logic would apply to criminal background checks or credit checks for financial employees – people who are offered the job would be checked. In the case of criminal background checks if one potential employee is checked all have to be checked. Donna Damon asked whether financial people should be bonded. Johm Martin asked if it was improper to ask if they have a driverıs license. Peter said it is ok if they have to drive as part of the job.
Notes in interviews: Carol asked what kind of records need to be kept from interviews. Peter said it is best if one person keeps a record of the interview, rather than each interviewer having their own set of notes. David Hill asked why notes should be kept at all. Peter said that they are valuable for telling what happened in an interview. If the candidate later says that xxx was not asked, and they lost the job because of that, and the notes from the interview show that it was, this is persuasive evidence. The notes should focus on the facts and skills required for the job. This could involve people-skills as well as technical skills. Donna asked if there should be notes on the debriefing at the end of the interview. Peter said yes. Jim Phipps asked if the notes should be typed and circulated like minutes. Peter said this would be useful but was not necessary. Beth Howe was delegated to take notes in the interviews for Town Administrator. She will bring copies of the basic application and release form in case candidates had not filled them out.
Peter said that when it came to creating a MOU for a job, the TC should work out the primary terms of the job offer with the candidate. These would be sent to him to be drafted as a MOU.
Peter said that teachers usually have a one-year probationary contract that can be terminated or renewed for a second one-year probationary contract. Normatty after two years they are either let go or given tenure which makes them impossible to fire. Leon Hamilton said he thought that all Town and School Department employees should have a probationary first year. Donna Damon said this could be done by having a Town policy on the probationary period. Peter said this is a good idea as long as it is possible to hire someone on this basis. Probation can be useful to both sides. The employee can try working for Chebeague which will be somewhat unusual and the Town can see if they work out.
Someone asked whether it would be possible to have the new employees begin work before July 1 – particularly because there will be training in Cumberland in June and various state training courses even earlier than that. Peter said if they are willing to be paid for this after July 1, this could be asked of them. This would be more difficult with hourly employees who are supposed to be paid at regular, more frequent intervals.
John Martin asked about the strategy for asking about salary range. Peter said it makes sense not to disclose the top of the range. You can ask them what their expectations or requirements are. Or you could give a low to medium amount and then ask if that was sufficient for their expectations.
Carol White asked if it was legal to offer different benefits to different employees. Peter said that you have to offer the same plan of benefits to everyone, but that the cost could be tailored to different categories of employees.
Peter said he would email a response to the list of questions Donna had given him. If people had other questions they should email them to Peter. John Martin suggested that the questions go through him so there would not be repetition. This was agreed to.
Peter Lowe and Kevin Beal left.
Donna Damon said she had just found out that the Cumberland Cemetery Association was having its annual meeting on Sunday April 1 and that they had sent a letter to Cumberland saying that they were planning to let the Chebeague cemetery go, giving it to the Town of Chebeague Island, and make a payment of a specified amount to cover the money that had been paid in by Chebeaguers for perpetual care and cemetery plots over the years. This had came as a surprise to Donna. She knew that this was being considered, but had not heard that there was a specific offer, much less one that would be acted on so soon. She had to explain to the TC the relationship between the non-profit Cumberland Cemetery Association and the Town which provides some money for the upkeep of the cemeteries. This was assigned to the Community Services Committee and they seem to have known that something was coming but there had never been a meeting on it. David Hill said he thought it would be important to see the Cemetery Associations books before settling on an amount to be paid. Jim Phipps asked why the Chebeague Cemetery could not stay in the Cumberland Association. Donna said that the TC had never been asked to decide on this. John Martin and Carol White said that the TC should write to the Cumberland Association saying that the TC cannot accept the cemetery on behalf of the Town of Chebeague without understanding the terms of the transfer. There has to be an agreement or MOU between the TC and the Cemetery Association, not just a letter from the Cemetery Association.
The meeting was adjourned at 7:10.