BENNINGTON SELECT BOARD MEETING BENNINGTON FIRE FACILITY 130 RIVER STREET BENNINGTON, VERMONT 05201 MONDAY, APRIL 12, 2010 MINUTES BOARD MEMBERS PRESENT: Lodie Colvin-Chair; Sharyn Brush-Vice-Chair; John Zink; Jason Morrissey; Joseph Krawczyk and Matt Maroney. ALSO PRESENT: Stuart Hurd-Town Manager; Attorney Robert Woolmington; Richard Pembroke; Mike Bethel; Jean McKenna; Peter Crabtree; Patrick McCardle; Neal Goswami-Bennington Banner and Nancy Lively-Recording Secretary. 1.EXECUTIVE SESSION (2ND FLOOR CONFERENCE ROOM) A.INTERVIEWS FOR BOARDS & COMMISSIONS - BENNINGTON HOUSING AUTHORITY At 7:08 P.M., Lodie Colvin called the meeting to order. 2. SELECT BOARD REORGANIZATION Jason Morrissey moved and John Zink seconded to re-appoint Lodie Colvin as Chair of the Bennington Select Board. The motion carried unanimously. Matt Maroney moved and John Zink seconded to nominate Jason Morrissey as Vice-Chair of the Bennington Select Board. The motion carried unanimously. Ms. Colvin thanked Ms. Brush for her service as Vice-Chair during the past year. Ms. Colvin stated that Tom Bluto had passed away this week and extended condolences to his family noting that Mr. Bluto was a "go to guy" for the Town for many years. 3. MINUTES - MARCH 1, 2010 MINUTES - MARCH 22, 2010 Sharyn Brush moved and John Zink seconded to approve the Minutes of March 1, 2010 as presented. The motion carried unanimously. Sharyn Brush moved and John Zink seconded to approve the Minutes of March 22, 2010 amended as follows: Line 63 - Change "Bennington" to "Burlington". The motion carried unanimously. 4. WARRANTS The warrants were circulated for signatures after Mr. Hurd answered Board questions on MSK Engineering, grass roots environment refund, pump service and repairs, Champlain Oil Company, the senior center carpeting, and water permits. Mr. Hurd added that we are in "very good shape" for the first three quarters of the year with equipment repairs being up and salt purchases being down. 5. CITIZENS None. 6. POLICE CHIEF'S POSITION DISCUSSION The following motion and amendment were tabled at the March 22, 2010 meeting: "Jason Morrissey moved and John Zink seconded that the Select Board adopt a policy for the process of hiring a police chief to replace Chief Gauthier, and that the Select Board work with the Town Manager to select and approve a committee from people in the community, including at least one Select Board member, that will be given the charge to interview any candidates that the Committee has determined are worthy of receiving an interview, and at the conclusion of the interview process, to go into Executive Session between the Select Board and the Committee appointed by the Select Board, to approve the decision of the Committee, or the Town Manager, as it may be. Mr. Maroney suggested that the Committee should have privy to the reference check information. Jason Morrissey moved and John Zink seconded to amend the motion to include that a written one-page consolidation of reference check information that the Town Manager has obtained on each candidate be given to the Select Board during Executive Session." Mr. Morrissey made the following comments: * He has "a lot of respect for Rob (Woolmington) but disagrees with his conclusion" as to the Town Manager's authority as it is stated in the Charter. * The above motion "has nothing to do with the performance of our current Town Manager and has nothing to do with the performance of our current Police Chief or anyone in the Police Department". * "It has nothing to do with any member of the Police Department that is a candidate for the Police Chief's position. I have no dog in the race." * As a practicing Attorney, I do not feel that I should serve on the Interview Committee and have declined the three suggestions from Select Board members that I do. * I feel that "the Town Charter and Vermont State Law, in general, gives the Select Board all of the power and all the discretion it wishes to set terms and conditions around the process for which the Town of Bennington hires it's Chief of Police". * I don't think by doing that that it precludes the Town Manager as Chief Executive of the Town, or undermines his authority day-to-day within the Police Department. * I also feel strongly that this matter should be held over until there is a full Board present. Mr. Woolmington had issued a letter to the Select Board prior to the meeting where he had concluded that the "exclusive power to appoint the Bennington Police Chief is granted to the Town Manager". He explained that letter with the following comments: * In the State statutes, apart from the Charter altering that, in a Town without a Town Manager, the Select Board hires the Police Chief, and in a Town with a Town Manager, the authority to hire the police chief lies with the Town Manager. * None of the specific powers of the Select Board enumerated in the Charter includes appointment of the Police Chief. * The Charter gives the Town Manager exclusive authority to appoint, fix the salaries of, suspend and remove, all officers and employees except those who are elected or who are appointed by Select Board Members while it also gives the Select Board the power to create policies that govern these appointments. * How these policies are developed being mindful of respecting the Town Manager's position is something that can be worked out between the Select Board and the Town Manager. Board questions/comments as follows: Mr. Krawczyk: To say that the Select Board has to approve the appointment of the Police Chief would be incorrect? Mr. Woolmington: Yes, that is incorrect. The Select Board cannot undermine the authority given to the Town Manager in the Charter. Mr. Zink: So you're saying that the Board and Town Manager should work out a system that is satisfactory to both for the review process of hiring the Police Chief? Mr. Woolmington: That is correct. Involvement in the process only with the final decision lying with the Town Manager. Mr. Zink: The Police Chief serves a dual function - as Chief of Police and Commissioner of Public Safety. The "Commissioner" designation would put the appointment authority with the Select Board and not the Town Manager. Mr. Woolmington: I will have to review the Charter as to this point. Mr. Morrissey: When you were writing your opinion, did you have any opinion on the creation of the Interview Committee? Mr. Woolmington: I only expressed a legal opinion on the charge that I was given, however, in my non-legal opinion, the establishing of a committee that is involved with the interview process - as long as that committee doesn't overrule the Town Manager's final decision - is acceptable. Mr. Morrissey: The Select Board is within its authority to set terms and conditions for the Town Manager in hiring the Police Chief. Do you think that making one of the conditions be that the Select Board confirm the choice that the Town Manager has made, in your opinion, outside the State law? Mr. Woolmington: Yes that is my opinion. You can't use the power of a condition to undermine a statutory directive. Mr. Morrissey: In all matters, the Town Manager is subject to the direction and supervision of the Select Board. It would appear that this opens up the Charter language to interpretation - that the Town Manager's authorities are in the absence of Select Board actions. Two strong phrases were noted - Mr. Morrissey's "in all matters", and Mr. Woolmington's "exclusive authority". Mr. Morrissey: The Charter is "devoid of common sense". Ms. Brush: What is your opinion on the motion that was made? Mr. Woolmington: The process portion of the motion is acceptable within the Charter, but the "to approve the decision" portion is not. Mr. Maroney: Suppose there was a motion to approve, with the Town Manager, a committee for the interview process. Can the committee be privy to the background check information? Mr. Woolmington: That strikes me as being appropriate. Mr. Maroney: Question to Mr. Hurd - why would you be opposed to the Committee making their own decision on selecting the candidate? Mr. Hurd: When Chief Gauthier was hired, the Committee, or Interview Panel, received the resumes of the candidates and interviewed them. I did the background checks. I feel that it would be "dicey" to have an appointed committee that will serve for a limited period of time allowed access to the background checks. I then presented my decision to hire Rick Gauthier to the Board before actually making the appointment. It was discussed in Executive Session, but ultimately the decision was mine, and "we ended up with one of the best Chiefs of Police in the State of Vermont, thankfully". Mr. Hurd is willing to work with any committee system that the Board comes up with. Ms. Colvin: I will not support the tabled motion because "it is an affront to what the Charter says". Also, there has been discussion, and there will be further discussion, in Executive Session concerning the members of the Committee. Mr. Zink feels that Mr. Morrissey has raised some excellent points, but also feels that Mr. Hurd has "met us more than half way". He is especially concerned because all police, in general, and the Chief of Police, specifically, may have an unprecedented situation if the legislature approves the early release of prisoners. Two thirds of those incarcerated in Rutland are from Bennington. Mr. Bethel suggested that an advisory question to the people of Bennington asking whether or not they want the Charter to remain as is, or change it, would be in order to see if the people still feel as they did thirty years ago. Jason Morrissey withdrew the tabled motion and amendment and John Zink withdrew his second. Mr. Maroney will document his ideas concerning the formation and duties of the Interview Committee, and the interaction between the Select Board and Town Manager during this process, as it relates to the hiring of the Chief of Police. 10. TRAFFIC CONTROL ORDINANCE AMENDMENT - PARKING BAN - BENNINGTON ELEMENTARY - SCHOOL STREET Ms. McKenna, a parent of children attending Bennington Elementary for 14 years, agrees that there is a safety problem with the parking on Park Street but disagrees with the Bennington School Board's "quick fix" solution of a parking ban. She stated that there are three areas that need to be addressed first: 1) There are four to six school staff that are parked there all day - have them park in the staff parking lot. 2) Reduce the number of parents that are picking up and dropping off students - is there a problem with the bussing that so many parents choose to do this? 3) The Catamount side of School Street needs to be utilized. Ms. McKenna added that 15 to 20 parking spots will be affected and also wonders why they're requesting a ban from 7:00am to 4:00pm when it's only an hour in the morning and an hour in the afternoon that the problem exists. Her request is that the Select Board ask the School Board to answer these other questions before proceeding with the ordnance. Ms. Colvin noted that for some of the 29 years that she had taught at Bennington Elementary, no one was parking on the west side of Park Street and it was much safer. It was only when someone contested a parking ticket that it was realized that the area had never been designated a No Parking zone. Mr. Maroney questioned why they don't pickup and drop-off on School Street, and Mr. Pembroke answered that this dates back to when Catamount School was open and they were trying to keep the congestion on School Street to a minimum. Now that Catamount is closed, all of that area is used for parking plus the school is in the process of putting in a bus slip lane to keep the buses off the street. Parents will not be allowed to use the bus slip lane. Mr. Morrissey added that there are businesses on Park Street that would be affected by a parking ban. Mr. Zink noted that he thought that there used to be No Parking there because it was necessary for the fire trucks to get through. Mr. Krawczyk would like clarification as to where, exactly, the School Board is asking the ban to cover, and how the pickup and drop-offs would then take place. Mr. Bethel noted that the sidewalk is in terrible condition from Gage Street north. It was the consensus of the Board to revisit this request after they have received more detailed information from the School Board. 7. PROCLAMATION - NATIONAL LIBRARY WEEK Sharyn Brush moved and John Zink seconded to accept the Proclamation - National Library Week, April 11-17, 2010 as presented. The motion carried unanimously. 8. APPOINTMENTS TO BOARDS & COMMISSIONS Constable - Sharyn Brush moved and John Zink seconded to re-appoint Ralph Becker, Jr. as First Constable. The motion carried unanimously. Town Service Officer - Sharyn Brush moved and John Zink seconded to re-appoint Kendy Skidmore as Town Service Officer. The motion carried with Matt Maroney opposed. Bennington County Regional Commission - Sharyn Brush moved and John Zink seconded to re-appoint Dan Monks to the Bennington County Regional Commission. The motion carried unanimously. Bennington Housing Authority - no appointments were made. 9. 2010 LIQUOR AND TOBACCO LICENSE APPLICATIONS John Zink moved and Sharyn Brush seconded to circulate the 2010 Liquor License Renewal Applications and the 2010 Tobacco License Renewal Applications Approval Sheet for signatures on the following: 2010 Liquor License Renewal Applications - First Class Renewals 1.Allegro Ristorante 2.American Legion Post #13 3.Bennington Pizza House 4.Chili's Grill & Bar 5.JC's Tavern 6.Kevin's Sports Pub & Restaurant 7.Madison Brewing Co., Pub & Restaurant 8.Moose, Loyal Order of, #1233 9.Mt. Anthony Golf & Tennis Club 10.Park-McCullough House Association, Inc. 11.Peppermill's of Bennington 12.RT Ryan's 13.Rybrook Tavern 14.Thomas J. Carmody's 2010 Liquor License Renewal Applications - Second Class Renewals 1.Beshara's Discount Beverage & Groceries 2.Henry's Market. 3.Mack B Variety, Inc. 4.Madison Brewing Company 5.Martin's Mini Mart & Beverage Discount 6.Yott's Market, Inc. 2010 Tobacco License Renewal Applications 1.American Legion Post #13 2.Beshara's Discount Beverage & Groceries 3.Henry's Market, Inc. 4.Mack B Variety, Inc. 5.Martin's Mini Mart & Beverage Discount 6.Yott's Market, Inc. The motion carried unanimously. The Bennington Elks Lodge 2010 Liquor License Renewal Application was circulated for signatures. 11. MANAGER'S REPORT Mr. Hurd reported that when the Town acquired rights to expand the parking area at the rear of the new Police Facility, it also acquired the rights to use and maintain the alley between Carmody's and the Banner. The Banner gave up several parking spaces to assist in this lot expansion. The roof - owned by the Banner - is now leaking badly and must be replaced. We have worked diligently to get the price into an affordable range. Doxsee Roofing is the chosen contractor at a price of $4,798.00. Mr. Hurd would like to use Capital Reserve funds to pay for this since this agreement was instrumental in the support of the Police Facility, and therefore, would fall under the 'core government building and uses' category, instead of taking the money from the Parking Fund. The Capital Reserve fund is replenished by the Verizon rent of $2,500/month and the sale of Town property. Joseph Krawczyk moved and Sharyn Brush seconded to authorize the use of Capital Reserves to pay Doxsee Roofing $4,798.00 for replacing the roof between Carmody's and the Banner. The motion carried unanimously. Mr. Hurd circulated the Fairpoint application for the replacement of 19 poles at various locations. Mr. Hurd announced that the quarterly hydrant flushing will take place the weeks of April 26th and May 3rd. Residents are reminded to run their cold water to clear it should it be discolored. 12. OTHER BUSINESS Mr. Krawczyk clarified that there has not been any legislation passed for the early release of prisoners from jail, and no one at the State is in favor of that. Mr. Zink noted that his intent was just to warn the public that there is a possibility that this could happen and that they should contact their representatives to ensure that it doesn't. 13. EXECUTIVE SESSION A.CONTRACTS At 8:35 P.M., Sharyn Brush moved and Jason Morrissey seconded to go into Executive Session to discuss Contracts. The motion carried unanimously. Respectfully submitted, Nancy H. Lively Secretary