April 1, 2011
By Mechele Cooper
CHELSEA — Town Clerk Flavia “Cookie” Kelley has hired a lawyer to rebut published reports she is working under an invalid contract.
Flavia “Cookie” Kelley
Kelley became employed by Chelsea under a three-year contract tendered by Town Manager Angela Gordon on Sept. 15, 2010. The Kennebec Journal reported March 24 the contract is invalid because Gordon extended an earlier, one-year appointment to three years without selectmen’s knowledge.
Under Chelsea’s personnel policy — updated in 2007 — “the employment of all town personnel shall be the responsibility of the town manager, subject to the approval of the Board of Selectmen.”
Maine law also gives a town manager authority to appoint staff — but only for one-year terms.
Town attorney Stephen Langsdorf said Gordon told him she was instructed by Board of Selectmen Chairman Carole Swan to sign Kelley’s contract without first bringing it to the board.
“(Selectmen) had no knowledge of it and did not approve it,” Langsdorf said Thursday. “It was done behind selectmen’s back. They knew nothing about it. Only Carole Swan did.”
Kelley’s attorney, Clifford Goodall, on Wednesday supplied a “certificate of appointment” to the Kennebec Journal. Dated July 19, 2010, the document bears the signatures of Swan and Selectman Michael Pushard, and was to be in effect for one year, through June 30, 2011.
In an “Open Letter to Chelsea Residents,” Goodall says that document proves “the majority of the Board of Selectmen appointed Cookie Kelley to be the Chelsea Town Clerk for a one-year appointment ending June 30, 2011.” At the bottom, a statement says Kelley “has been duly appointed by the selectmen as town clerk.”
Goodall insists the three-year contract subsequently tendered by Gordon on Sept. 15 “is a valid legal contract” and “supplements the one-year appointment from the Board of Selectmen.”
But Langsdorf said there is nothing in law giving Gordon the authority to expand the one-year appointment approved by selectmen into a three-year pact.
In particular, Langsdorf said, a town manager is not authorized to bind a town to a contract.
He cited Sirois v. Frenchville — a 1982 case in which the court stated: “The Legislature has listed … fourteen specific acts which the Town Manager is authorized to do; absent from that list is the power to contract on behalf of the town.”
The July 19 certificate of appointment “doesn’t address the fact that selectmen were not consulted or informed in any way about the contract that was approved in September,” Langsdorf said.
For Kelley’s hiring to be valid, Langsdorf said, selectmen would have had to approve the Sept. 15 document by vote at a selectmen’s meeting.
They never did. Selectmen Tanya Condon and Michael Pushard — who served on the Board of Selectmen with Swan when Kelley was hired — say they never saw or signed Kelley’s Sept. 15 contract, according to Langsdorf.
The Sept. 15 contract includes a wage that exceeds the value of most local town clerk positions and includes enhanced benefits that violate the town’s personnel policy.
For example, Kelley was handed four weeks of vacation — or 20 working days — on her date of hire. Town policy dictates employees receive 15 days of vacation — plus one day for each year over 10 years of service — only after 10 years. Employees such as Kelley with fewer than five years are only eligible for 10 days of vacation.
New hires are considered probationary for the first six months of employment, according to town personnel rules. Yet it appears Kelley — appointed July 19, then officially hired Sept. 15 — endured only a 43-day probationary period.
And all applicants for employment must complete a written application, and are subject to criminal background checks, credit history reports and other reviews prior to a job offer.
Langsdorf said the background check was done, but not the credit history. He was unaware of an employment application.
Still, Goodall claims Gordon “has the sole authority to hire Cookie for however long she wants. The town manager appoints municipal officials in a town manager form of government.”
As for the apparent violations of town personnel policy, Goodall said state law overrides town rules.
“The personnel policy is an advisory document, and not binding unless adopted as an ordinance by townspeople,” Goodall said. “The policy does not trump whatever the statute authorizes the town manager to do.”
Selectman Richard Danforth, who signed and helped craft Chelsea’s personnel policy, disagrees.
The personnel policy “was reviewed, we had several readings on it, there were final changes, and we voted to approve it at a selectmen’s meeting and signed it,” he said.
“I would say that would make it valid. I don’t know what Goodall is quoting, but this is what I’m struggling with: If he’s saying the board can’t put policy in place to manage the Town Office staff, then why is it OK to sign a warrant and sign bills? Shouldn’t that go to Town Meeting, too? People elect selectmen to do the business of the town. So, yes, this is valid.”
Goodall said that, in order for the town to have its own rules, residents must adopt a charter that includes the hiring procedures, duties and ranges of authority for each staff member.
“That would eliminate a lot of the conflict and these conflicting opinions that are floating around,” he said. “If anything positive could come out of this current chaos, it would be for the town to put together a charter committee.
“A charter gives them a lot of home-rule authority and sets out how their own town is governed. Quite a few small towns the size of Chelsea now have charters.”
Geoff Herman of the Maine Municipal Association said the validity of a town’s personnel policy is something that would be determined in a court of law.
He said the association’s attorneys are on both sides of that question.
“I can’t say personnel polices are absolutely valid,” Herman said, “but they certainly have a function and are used.”
Goodall said he has had several meetings with Kelley, along with drafting the “Open Letter” he circulated in town.
“We’re not doing a mass mailing or anything like that,” Goodall said. “It was my understanding that she would be giving that to selectmen and to anyone else who may want it, but I don’t think she intends to give everyone a copy. We had no plans for mass distribution.”
He said the letter is only part of his consultations with Kelley. He said he has not yet determined his fees.
Kelley hired Goodall using personal funds. Langsdorf said taxpayer money is “absolutely not” paying for Goodall’s services.
City Editor Bob Mentzinger contributed to this report.
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