February 20, 2013

Attorney: Old Orchard council's vote was illegal

The town manager's lawyer says the manager has sole authority on personnel issues, so the council wasn't legally allowed to overturn Bill Robertson's firing.

OLD ORCHARD BEACH – Public Works Director Bill Robertson returned to work Wednesday, a day after the Town Council overturned the town manager's decision to fire him.

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Mark Pearson

Tim Greenway / Staff Photographer

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Public Works Director Bill Robertson attends an Old Orchard Beach Town Council meeting Tuesday, where the council rescinded his firing.

Tim Greenway / Staff Photographer

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PDF: Investigation report on Bill Robertson

However, the attorney for Town Manager Mark Pearson said the council's vote was illegal and carries no weight. Robertson's contract will end April 5 and will not be renewed by the town manager, said Pearson's attorney, John Richardson.

Robertson had been on administrative leave since Dec. 21, the day after a town employee reported that Robertson had threatened to shoot Pearson. Robertson denies that he made the threat, and he has not been charged.

The allegation was not mentioned specifically in the termination letter that Pearson sent to Robertson on Feb. 1.

Pearson said in the letter that he was terminating Robertson's contract because of Robertson's public expressions of animosity toward Pearson and concerns about the public works director's job performance.

Tuesday's Town Council agenda included an executive session about Robertson. However, the closed-door meeting was canceled because Councilors Michael Coleman, Robert Quinn and Robin Dayton voted against moving into executive session.

They all questioned whether the Town Council had authority to override the town manager on Robertson's employment contract.

The meeting continued for more than another hour. It culminated with a vote by four councilors to rescind the termination letter and lift Robertson's administrative leave.

Pearson's office referred all questions about the Town Council meeting to his attorney.

Pearson has come under fire from some members of the divided Town Council.

In December, Chairwoman Sharri MacDonald asked Pearson to resign. After he refused, MacDonald tried to have the council meet in executive session with a town attorney about Pearson's contract. That session never happened, and there have been no other public moves to oust Pearson, who was hired early last year.

Richardson, Pearson's attorney, said he believes that Tuesday's vote on Robertson's employment was illegal.

"The vote is not enforceable. Town ordinance and state law are clear that the town manager has the sole responsibility to handle these nonrenewal issues," Richardson said. "The four councilors' decision is more symbolic than meaningful because the contract will not be renewed."

Two of the councilors who voted to rescind the termination letter said Wednesday that they stand by their vote and believe the Town Council does have the authority to overturn Pearson's decision.

"I think the direction we took was appropriate," said Councilor Dana Furtado. "I think the decision was absolutely correct."

Councilor Laura Bolduc, who also voted to rescind the letter, said she would still like some clarification from the town's attorneys about whether the council must take a second vote to ratify Tuesday's decision.

She said she was frustrated that the council could not meet with Pearson and Robertson in executive session to discuss the situation in detail.

Neal Weinstein, Robertson's attorney, said Wednesday that the council was within its rights to overrule Pearson's decision.

The contract is between Robertson and the town of Old Orchard Beach -- meaning the Town Council -- not between Robertson and the town manager, he said.

"The Town Council is in charge," he said.

Councilor Robert Quinn said that having a town attorney at the meeting would have offered some clarity on the issue. MacDonald did not ask the town attorney to attend.

Quinn said he believes that the council vote was not legal but would like to see a written opinion about whether it has legal bearing and whether Robertson is entitled, under the town charter, to a hearing about his employment.

"You just can't make a decision to reinstate someone and sweep all the charges under the rug," Quinn said. "To reinstate him without knowing the facts makes no sense."

Robertson, who plans to work in the office for four hours each day while he recovers from surgery, said Wednesday that he was glad to be back at work.

He said he has shifted his focus from the termination letter to preparing the department's budget and preparing for the start of construction season in April.

 

Gillian Graham can be contacted at 791-6315 or at:

ggraham@pressherald.com

Twitter: grahamgillian

 

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