Day 2: Vilchock v. Nottingham Board of Selectmen

Day 2 of the 3-day trial. Day 1 is here. The 3rd day will have 3 witnesses and closing arguments.

Testimony of Donna Danis

Vilchock’s attorney asked questions to establish Danis’ background. Danis served on the Nottingham Board of Selectmen from 2014 to 2023. She was Chairman several times, as the position is on rotation, including her last year on the board. Her professional background was in high tech. She ran a training organization for a software company. Her title was Director of Customer Enablement. She built her final employer’s first training organization.

She first learned about complaints against the Fire Chief in early 2023 from Interim Town Administrator John Scruton. The general nature of the complaints she heard were about interactions with the Chief. Employees felt they were not being treated fairly. She did not receive many specifics from Scruton. She never spoke with any employees of the Fire Department about the matter. Scruton told her that the employees didn’t understand the process they should go through for making a complaint.

She was asked about how the role of Chairman differed from just being a Selectman. She said it differed little, except that it involved the task of working with the Town Administrator to determine meeting agendas. This was a collaborative process.

She was asked about how Selectmen worked with the Town Administrator. Danis said that it was important to meet with them regularly. When she was Chairman she met with the Town Administrator weekly. She also thought it was important to have the department heads seeing that there were regular meetings.

The attorney asked what was the relationship between the board and the department heads. Danis said that frequently a member of the board would be assigned to be an advocate for a particular department. For example, Danis was for many years the advocate of the Recreation Department, particularly during the creation of the Marston Fields recreation area. The department heads met with the board at least once a year to go over their budgets, and often twice or more

Danis was asked about her impressions of the Fire Department prior to the complaints. She said what she could recall was that in her early years on the board there were many discussions about acquiring a Quint truck. In later years there was a discussion about increasing staffing to provide improved coverage. Chief Vilchock had advocated for this.

The attorney asked if the Fire Station was fully staffed during this period. Danis did not recall. She just recalled that the department was a mix of volunteers and full-time employees.

The attorney directed Danis to an exhibit of the August 8, 2022 board meeting minutes. Danis said she did not recall the meeting. Danis was asked to read the section about the fire in the state park in which the board praised the performance of the Fire Department. Danis remembered the fire and believed the minutes accurately reflected the meeting.

Danis was asked whether she or anyone on the board, or the Town Administrator, had heard any complaints about the Fire Chief prior to those in 2023. She said didn’t recall any.

The attorney asked Danis to look at the exhibit of the February 7, 2023 email from John Scruton to Alan Gould of MRI. Danis could not remember what “MRI” stood for, but she recalled that MRI was the firm the board used to fill management positions in the town. The attorney asked why she thought Scruton was emailing his employer, MRI, about filling an upcoming opening for Fire Chief. Danis said that at that time there had been complaints to him from employees. She thought Scruton was doing his job as Town Administrator in being proactive. What the board expected of a Town Administrator was that when the board met it would be provided with all of the information we needed, and all of the board’s options. She thought Scruton was just trying to be prepared.

Danis said that Scruton had not shared with her at that time that there had been complaints. She said that she did not know whether Scruton had discussed any complaints with the Chief.

The attorney had Danis look at another email dated February 7. In this email Scruton says the vacancy hasn’t happened yet, but says the board is looking to see about filling the position. Danis disclosed that Scruton had never discussed this with the board.

Danis was asked whether she would expect the Town Administrator to discuss departmental problems with the department head. She said she would expect so.

The attorney brought up another email, also from February 7, at 1:22pm. He asked if Danis recalled writing the email. She did. Danis said in that email that Heidi did not like the Chief. The attorney asked why she said this. Danis said it was her own personal impression and observation. It was one she formed early on, beginning with a department open house during her first term, around 2016, where the public was invited. It appeared that there was tension between the two. She made a leap in judgment on this.

The attorney asked if she typically made such leaps in her role as Selectman. Danis said no.

Danis was asked about the town’s overtime policy being changed in 2022. She remembered that there was a lot of discussion about the subject, but she doesn’t remember details. She could not remember who was Town Administrator at the time. All she can remember is that the discussion had something to do with changing the shifts.

The attorney directed Danis’ attention to an exhibit of an email to Danis’ personal email address. This was interrupted by a discussion of whether this evidence should be sealed because it had personal information. [The email had been released via a right-to-know request without the address being redacted.] It was decided to proceed. The email was from Chief Vilchock to Police Chief Woodman, cc’ing Danis. Danis remembered receiving the email.

The attorney asked if Danis recalled specifically why the Fire Department had shifted to 24 hour shifts. Danis did not recall, but she assumed it was for better coverage. She could not recall whether by February 2023 the department had made this change in shifts. She was asked about Vilchock’s comment in the email about unilateral moves. Danis thought this was about Scruton, because Scruton disagreed with the overtime policy. The attorney asked if Scruton wanted changes expedited. Danis thought “expedited” wasn’t the right word. Scruton was experienced and used to moving things forward. He thought he was doing the right thing.

Danis recalled sending an email in reply to hold off on making the changes. She said this because she thought they were not getting anywhere in their discussion. Moreover, the town was close to getting a new Town Administrator on board. She thought it was important to have the input of the Town Administrator because they would be living with the consequences of the decision.

The attorney asked if Danis had an impression during this that the Chief was being insubordinate. Danis said that she would not use that word. She thought he was challenging the issue and pushing back. She did not recall, however, the Chief’s justifications for pushing back.

The attorney brought up another exhibit regarding the February 27 email to Danis from Scruton saying that he thought it would be nice if the Chief would talk with him about the Chief’s concerns. Danis recalled that the Chief had made a request to speak with the board in non-public session about the Town Administrator’s advocacy of the new policy. The Chief advocated for needing more time to learn about how other towns handled similar situations with overtime.

Danis said she was unaware of conflict between the Chief and Scruton. The board agreed to give the Chief more time. She did not recall any board members who disagreed with this decision.

The attorney directed Danis' attention to another email and asked if Danis was aware of the Chief outright refusing to to do anything that was part of his job. Danis said no. The attorney then asked why Scruton said in his email about the Chief dragging his feet and outright refusing and might require a written order. Danis said that Vilchock had in his mind a way thing should be and he followed that belief. However, he was willing to negotiate with the board, especially regarding budgeting.

The attorney asked if Scruton had ever asked the board to give an employee a written order. Danis said no. The attorney pointed out that Scruton said he wanted a written order. Danis said that he did, but the board never gave one.

The attorney asked about a March 3, 2023 email, which came after the Chief’s non-public meeting with the board. The attorney asked if Danis had told Scruton that she wanted him to quit pushing on the overtime policy. She said yes. Part of the reason was the resistance, part was the differing opinions, but the most important thing was that she thought the new Town Administrator should handle the issue. As of March 3 she was unaware of any employee complaints against the Chief. She heard the complaint on March 20.

She said the complaints took up most of the time of the non-public session. The complaints were not solely about the Chief. The complaints about the Chief were about his management style, safety issues, and retribution for non-compliance. What concerned her the most about the complaints were the safety issues, but she was also particularly concerned about the morale issues. She thought that complainants were ready to leave the department and that this would put the town in a bad position of not having Firefighters. Because of the complaints, the board decided to have an investigation conducted. This decision was made at a subsequent meeting.

The attorney asked Danis if she remembered what happened at the March 23 non-public meeting. She said she didn’t remember the details, but she read a letter to go to the Chief. She did not recall who wrote the letter. She couldn’t remember who was taking minutes. She did remember that the Chief had not at this point been informed of the complaints. She said that she did not think that the complaints had been put into writing.

The attorney asked if she thought it was a good practice to put complaints into writing. Danis replied, probably yes.

The attorney asked if Danis recalled deciding on a course of action for investigating the complaints. Danis said yes. The board was given two options for doing so, one from MRI and one from the Town Attorney. The board’s consensus was to go with the recommendation from the Town Attorney because the board had more of a connection working with her which gave them more trust in the Town Attorney’s recommendation. She thought it was better working with the Town Attorney than with someone from MRI who did not know the town well.

The attorney asked if Danis knew of any financial incentives for Scruton - a subcontractor for MRI - to bring in business for MRI. Danis said she did not. The attorney inquired whether the town had a conflict of interest policy. Danis said there was one. [COMMENTARY: I’ve looked for this in the past on the town website and have been unable to find one, only a long-ago discussion in meeting minutes that the town should have such a policy.] The attorney asked if the board had any concerns about a conflict of interest with MRI. Danis said they didn’t . MRI specialized in these kinds of services. She had worked with them in the past and had found them to be extremely professional. The board had MRI assist in hiring Ellen White as Town Administrator. They helped find and screen candidates, but were uninvolved in the final interviews. Working with MRI on this was like working with the HR department of a corporation. Danis could not recall how MRI got paid for recruiting White. She thinks it was a flat fee and not a percentage of salary. Danis mentioned that the board had asked MRI to recruit a Public Works Director for the town. She was impressed that MRI said that they would be unable to do so because such individuals were so scarce.

The attorney asked if, once the board had put the Chief on paid administrative leave, whether the board had made any provision for replacing Vilchock as the town’s State Fire Marshal. Danis recalled nothing about this or anything about letting the state agency know about the situation.

Danis’ last board meeting was March 28. She did not have any role in the investigation or subsequent actions.

The attorney inquired about Danis’ understanding of the process for choosing the Fire Chief. She described that the position was elected by the members of the department and then appointed by the board. She conceded that the board always appointed whoever was elated, except in 2023. Danis did not recall a specific discussion about why they didn’t. She did recall that a couple of years earlier Vilchock had mentioned that his retirement was coming up. She thought this had to do with questions about when he was retiring. The board had no information that there were complaints about the Chief at the time it did not act on the appointment.

Danis was asked about her professional experience involving terminating employees. She did have occasion to fire staff. She had not had occasion to deal with morale issues and had no particular thoughts on how to deal with them.

The Town Attorney had no questions for Danis.

Testimony of Brent Tweed

Vilchock’s attorney asked Tweed questions about his background. Tweed is an on-call member of the Fire Department since 2020. He is a certified EMT. He is working on getting a Firefighting certification. He is employed at the Seabrook Nuclear Power Station as a Nuclear Systems Operator. He was also once elected to the town’s Budget Committee.

Before Interim Chief Sylvia changed the scheduling system, Tweed reported he responded to about 10 calls a month.

There was a discussion of mutual aid and how it works. The attorney asked if Vilchock disliked mutual aid. Tweed said not at all. The Chief thought mutual aid was necessary and beneficial. Tweed recalled when he was in training at the department and Vilchock trained him to call for mutual aid early. Tweed reported never being instructed to not call for mutual aid when it was needed. Tweed knew of no instance he was involved where the Chief canceled mutual aid.

There was a discussion about how on-call members were compensated.

Tweed reported all the way up to the time that the board first heard complaints about the Chief that Tweed heard nothing about dissatisfied employees.

The attorney asked if Tweed were to have an issue at the department with another employee, what would Tweed do. Tweed answered that he’d talk to an officer. Or perhaps the Chief, because the Chief’s door was always open. The Chief was easy to approach. Tweed never observed the Chief not being interested in input or taking offense to it.

Tweed said he had received training from both Chief Vilchock and Lieutenant Sandra Vilchock. He never observed any inconsistent discipline nor heard any complaints about it.

Tweed said he received an email announcing there would be an investigation and that people were invited to talk to the investigator. Tweed did not contact the investigator because he thought the Chief was doing a great job and that the investigator was just looking for negative things.

Tweed said that he had no discussions of the investigation with other members of the department while the investigation was in process because there had been a departmental meeting and the staff were told not to discuss the case. Tweed didn’t discuss the case with anyone until after the Chief was terminated.

The attorney asked if Tweed spoke with any of the complainants. Tweed said he did not know who they were. No one volunteered that they had complained. He tried to talk to other members of the department to figure out why the Chief was fired. He asked almost every officer. He especially did this once the investigator’s report became public. He didn’t think it was accurate. He’d never heard about any of those issues. But when he’d ask, nobody seemed to be able to go into any detail on the problems.

When Tweed read the investigator’s report it did conform to what he had observed in the department? Tweed said he had been in the nuclear industry for 20 years and knew that Vilchock had been in the industry. The way people work in that industry is very organized. The Chief ran the department well. There were functioning processes. Equipment was well maintained. The report claimed the opposite. It didn’t seem accurate.

Tweed was asked about the SOPs (Standard Operating Procedures). He said he was aware of them and that there was a binder of them. He said there was a process for improving the SOPs. It started with talking to the officer in charge, or the Chief. Tweed, however, never found anything he could improve upon.

Tweed reported that the Chief was frequently at the Fire Station. Usually there every Tuesday night for trainings or meetings. The Chief responded to a lot of calls. Sometimes he would cover shifts. He was often there when Tweed was there. Tweed attended the trainings. Attendance at trainings was mandatory, depending on one’s role.

There was a discussion about vehicle maintenance policies and procedures. Tweed thought the vehicles were well-maintained and that there was a process for reporting problems and restocking needs. For critical problems one could always contact an officer. He described the use of the vehicle checklist. He said in his experience the equipment was always properly maintained.

He was asked if this standard of maintenance continued after the Chief’s termination. Tweed said he didn’t know. After that he didn’t volunteer as much as he used to. He wasn’t there much anymore. He thought the firing was unfair and he wrote to the board saying so.

There was a discussion of the TEMSIS reports, which are a state requirement. Other states use different reporting methods. These are medical records. There was a discussion of the format: check boxes and narratives regarding the details of the calls. There were requirements for the reports regarding accuracy and completeness.

Tweed reported that filling out the reports was not always intuitive. They’re not easy to fill out. One of the former officers, Jeremy something, wrote a guidebook on filling them out. It was common in the QA process for the QA people to make requests for corrections. It regularly happened to him. The corrections were usually about the parts that were non-intuitive. It was inevitable that people would make mistakes as the reports weren’t created often. Tweed wrote only 3 or 4 a month.

Tweed acknowledged that he sometimes disagreed with the QA changes. Sometimes they seemed arbitrary.

There was a discussion of inappropriate workplace communications. Tweed reported that he never heard the Chief use a slur. The Chief was never unprofessional. He never heard Sandra Vilchock use slurs. He did know that some people thought Lieutenant Vilchock was overly direct with an attitude that was too take-charge. Tweed said she never berated anyone or acted unprofessional in any way. He received training from both of them. He never found their feedback inappropriate or harsh.

Tweed said he never observed the Chief calling anyone out or disparaging anyone’s performance publicly. He did not find the investigator’s report on this believable. He never witnessed the Chief discipline an employee. The Chief’s meetings were professional, informative, and well-organized. They were focused on issues such as call volume, mutual aid received and given, discussion of the maintenance list.

Tweed said that the Chief had high standards for the safety of his staff. He ran the department in a well-organized way. Employees were encouraged to report problems. He did not micromanage. Tweed felt empowered to take initiative and did not find the Chief to be an impediment.

Tweed reported that he can’t say morale at the department is currently good. There are complaints about the situation with the Chief. He personally has cut back on participation to the point that he’s now at almost zero calls per month.

The Town Attorney cross-examined Tweed.

Tweed acknowledged he had been publicly supportive of the Chief. He posted support on Facebook. He considered the Vilchocks to be friends.

Despite this, the Town Attorney wanted to know, why didn’t Tweed speak with the investigator?

Tweed said he had never made suggestions for improvements and so never experienced what happened if one did.

The SOP binder was discussed. Tweed said he had reviewed it once or twice.

The Town Attorney asked if Tweed was familiar with the concrete plant in town. Tweed said yes. Were there pre-plans about how to deal with a fire there? Tweed said no. Pre-plans for other facilities? No.

The deficiency report for the Utility Vehicle was discussed, then the apparatus and equipment malfunction report. The Town Attorney asked if Tweed was familiar with the abbreviations used in the report. He said a few of them, which he named. He was asked to interpret the report. He said it was about the Utility Vehicle needing front brake pads. He identified the person who made the report and the date of January 2. The truck was repaired on January 4.

Testimony of John Scruton

Vilchock’s attorney asked questions to determine Scruton’s background. Thirty years’ experience in municipal management. Town Administrator in several towns, Town Manager in some others. Worked in many communities either part-time or as an MRI contractor. He began working in Nottingham in the fall of 2022 on an open-ended interim contract through MRI, paid hourly, approximately 30 hours per week. He did not recall being briefed about any particular issues with the town before taking the position. He said he was responsible for keeping things running smoothly until the permanent Town Administrator came onboard. He clarified that MRI was not his employer, but that he was a subcontractor. He was not involved in selecting the town’s new Town Administrator.

Scruton did not recall the earliest date he received complaints about the Fire Department.

He was asked to review an email. He recalled sending it. The board had received the papers from the Fire Department to re-appoint the Chief. He did not present them to the board for signature because he wanted to check with the Chief to see if he was retiring. However, prior to this he had heard complaints about the Chief. He did not know if the Selectmen had heard any complaints. He did not know what the board wanted to do. He did not recall advising the board not to re-appoint Vilchock. He did recommend that as the board got closer to the March meeting that they investigate the complaints received so that they could suspend the Chief with pay to have a fair investigation.

Scruton did not remember discussing with the board a decision not to re-appoint the Chief.

The attorney asked if the Chief reported directly to him. Scruton said that it was not clear to him. The statute gave a lot of responsibility to Chiefs. He thought the Chiefs had responsibilities that were independent of the Town Administrator’s oversight.

Scruton did not discuss any of the complaints with the Chief. The attorney asked if ordinarily he would. Scruton said it would depend on the position. Fire and Police chiefs have lots of independence. It was the role of the board to discuss complaints with them, not his responsibility. He did not think he had direct supervisory authority over them. He thought the law was clear that he was there to advise the board.

There was a discussion of the written personnel policies. Scruton recalled reviewing the document during his tenure. The attorney pointed out the organizational structure on page 6 where it says that department heads report to the Town Administrator. The attorney asked if it was Scruton’s understanding that “department head” does not refer to the Fire Chief. Scruton pointed out that the date on the document was February 2023 and that he was trying to get this document to clarify responsibility.

The discussion moved on to the complaints. Scruton recalled what the complaints were about. That they were from employees of the Fire Department and that he recalled no complaints received from the public.

The attorney asked if the complainants at the March 20 meeting organized the meeting through Scruton. Scruton said that the complainants wanted to tell the board what they had told him. They wanted to remain confidential. He told them that the only way to do this was to tell the board during non-public session. They did not submit written complaints at the meeting. Whether they did afterward he did not know. However, he was not aware of any written complaints. Scruton said he did not speak with the Chief about the complaints because of the complainants’ request for confidentiality.

The attorney asked if Scruton thought it was appropriate to give a department head a heads up that there were complaints. Scruton said he thought about this but thought it better to not violate privacy.

The attorney asked if Scruton thought the complaints were incapable of being resolved. Scruton said the employees were fearful of the consequences of approaching the Chief. The consequences were that he’d make their lives miserable. Scuton could not remember whether any said they were going to quit, but he did remember that some said they wanted to stay.

There was a discussion of the Chief’s working relationship with Scruton. Scruton said from the beginning there was a mutual desire to make it work. One difficulty was scheduling. Scruton worked during the day during the week. The Chief worked weekends and evenings. At one point - and Scruton didn’t know what caused it - there emerged difficulties in communicating with each other. The Chief appeared to think that Scruton was trying to take action against him. Scruton didn’t know why the Chief might have thought that.

Scruton’s last official day was March 20, 2023, the day the complaints were presented to the board or perhaps a day or two later. After this his involvement ceased.

The Town Attorney declined to cross-examine Scruton.

Testimony of Chris Sterndale

Vilchock’s attorney asked questions to establish background. Sterndale is currently the Town Administrator for Auburn. He was previously the Town Administrator for Nottingham, from the spring of 2015 until September 2022. Before that he ran a homeless shelter.

Sterndale described that he had a good working relationship with the Chief. They were not friends, but they were friendly. They had no contact outside of work.

Sterndale recalled no employee complaints about the Chief during his tenure.

There was a discussion about the dramatic change to double the number of full-time employees of the Fire Department and how that came to happen. Earlier the department had been staffed by volunteers and part-timers. The department made the change for several reasons. One was to improve response times. This was widely believed by all involved. Another was to help with hiring and retention of career personnel. The question was presented to the voters as a warrant article. It passed.

The Chief was closely involved. The warrant article was the culmination of a multi-year process. A couple of years prior the voters were asked to fund improvements to the station to allow 24/7 coverage. The Chief was the main advocate of this. It took several years because the facility improvements had to come first. The station had to provide sleeping accommodations. The budget amounts were large. It was broken into pieces to give the voters clear choices and ensure voter buy-in.

The hiring of the three new full-timers produced difficulties. The department started recruiting in the summer of 2022. It did not go well. The reasons for this were discussed, but Sterndale did not recall specifics except that in general it was difficult for small departments to hire. In part this was because of pay scales. Nottingham paid below average for the region. Sterndale did not recall the pay figures. The town was trying to be competitive, but it was a bit lower than average for similar towns and lower than average for larger towns.

Sterndale said he saw the Chief at least once a week. The Chief would also contact him after hours, on rare occasions, about extraordinary things such as structure fires and deaths. There was a policy about reporting major things. The Chief adhered to the policies.

Sterndale said the Chief did not directly report to him. He was not his direct supervisor. The Chief reported to the board. The Town Administrator is in an administrative role, not an authoritative role. However, towns may define the job as they wished.

Sterndale said he had a written contract with the town and a written job description, although the job evolved over time.

Sterndale was asked whether the Chief was responsible for the boilers at the Fire Station. Sterndale said that generally the station was the Chief's purview, but he’d be in communication about matters and involved. He didn’t recall any specifics about the boilers there, but his lack of recollection didn’t mean nothing happened. The town had lots of boiler problems. If there was something substantial the Chief would need to contact the Town Administrator, and he did so.

The Fire Department generally stayed within budget. There were no budget issues that Sterndale thought came from mismanagement; only ones from things unexpected, such as equipment failures.

There was a discussion of how Covid affected the department. Sterndale said it was a nightmare for the responders and it drove up costs. There were probably other problems he was unaware of. During all of this the Chief performed consistently. There was no drop-off in services.

The Chief was not a full-timer. He was on a stipend. He was fully engaged and spent many hours working. Sterndale said he received no complaints about him, nor about any of the department’s other officers. He was aware of no issues with abusive language or any bigotry. He never observed the Chief acting inappropriately. If he had on any of these he would have talked with the Chief about it.

When questioned about whether he was aware of any issues with morale, Sterndale responded that “issues” was a strong word. He was aware that the department had cliques. However, lots of departments are like that.

When asked if Sterndale ever pulled the Chief aside, Sterndale responded that he coached the Chief on public-facing things. This was not done as a corrective, but about planning on how best to tell the public. With regard to the Chief’s receptivity to suggestions, Sterndale said he was receptive; however, he had his own style, and his style could not be changed. His style was that he was deliberate. He was careful with his words. He was guarded. It’s a style that takes some people time to get accustomed to. But, once you figure it out, Vilchock was a good communicator.

There was a discussion about the policy for reporting damage. Sterndale said he was aware of it. While he was not aware of a case in the Fire Department where someone was disciplined for violating the policy, it was too common of a thing for it not to have happened. He recalled one incident involving damage to a dump truck.

The attorney asked if the town had a progressive discipline approach. Sterndale said it did, with tiers of disciplinary actions.

Sterndale said he advised the board on termination decisions and that the board typically sought his input.

He said he’d been following this case online a bit. He’d read the pre-trial materials he’d been named in. He remembered reading a report on the investigation. He reviewed the redacted copy of the investigation. He chuckled once at the off-color language. He thought there was a lot missing because of the redactions. The contents of the report, however, did not match his recollections of the department. They were surprisingly different. Some shockingly so.

Sterndale reported that the Chief did not use coarse language - or at least not worse than his own. Although he noted that it was his experience that most firefighters and police knew how to use coarse language.

He said he had no concerns about the Chief when he switched to working for Auburn.

Sterndale said he had received complaints from employees in departments other than the Fire Department. He heard directly from employees. His approach to the situation depended upon the severity of the complaint. First he got a sense of the breadth of the complaint, then he would talk to the supervisor. He said he never had an employee tell him not to discuss the matter with the supervisor. If he had, he’d have to consider the nature of the complaint. He might honor it for something very serious, such as something criminal or for sexual harassment. There could be situations in which one would not talk to the supervisor. But such a request would be unusual.

Sterndale said he left Nottingham for a job that was a better opportunity. He was not asked to leave. He had no ax to grind, nor any ill-will against the town.

The Town Attorney cross-examined Sterndale.

There was a discussion of the notification policy involving town property. Sterndale said that in cases where the damage was not serious he would not normally get notified immediately. He’d only get notified immediately if it was for something big, like wrecking a police cruiser.

There was a discussion of progressive discipline. Sterndale conceded that there were instances that would not be progressive but would go straight to termination. The Town Attorney asked about the investigator’s report. Sterndale said that if all of those things in the report applied, then it would not surprise him that progressive discipline would not be applied.

Testimony of Vash Rosfield

[Note: Many parts of Rosfield’s testimony were inaudible to me. Twice during the testimony the plaintiff’s attorney had to stop the proceedings because he could not hear the testimony. It was worse for me. I was in the public section further back in the courtroom than the attorneys. Because I was taking notes, just the sound of my typing substantially interfered with my ability to hear the testimony. Some of the parts of testimony that I could barely hear did not seem cogent. The primary cause for this would be that the testimony provided a lot of details for which no connection was made to the point. The Town Attorney used a different style of questioning with Rosfield than she did with the other witnesses. Her questions often carried a lot of background information in them rather than using questions to elicit the background information from the witness.]

The Town Attorney asked about Rosfield’s background. He is currently employed at Nottingham Fire and Rescue as a Firefighter and an AEMT. He had inaudible certifications. He’s been there two years. He started in the fall of 2022. He began work to become a Firefighter when he was in the Boy Scouts in 2004. He does not remember when he got his first full-time firefighting job, but it was in Epsom. He still works for Epsom, but no longer full-time. He is full-time in Nottingham. He previously worked on call in Pembroke. He worked in Laconia for 3-4 months.

He was one of the complainants on March 20. He spoke about events leading up to the meeting. There was a phone call with the Town Administrator. He and other members called.

The plaintiff’s attorney interrupted to say he could not hear the testimony.

Rosfield was extremely nervous about going to the board. He was afraid of retaliation.

Before the meeting the complainants met at a location outside of town. They carpooled in his wife’s vehicle, which had never been driven to the fire station. They entered Town Hall via a back door to prevent being seen. [COMMENTARY: I was there. I saw some of them. When I was leaving the conference room at the end of the public session, people I was unfamiliar with entered the room for the non-public session.]

The general nature of the complaints was about safety, morale, pay structure, retaliation, and the apparatus. The presentation of the complaints to the board took 1.5 to 2 hours, perhaps more.

Rosfield did not recall how he left the meeting.

The board gave no indication at the meeting what they were going to do about the complaints. The first he heard was that he got a call that the Chief had been put on leave pending an investigation.

He discussed the SOPs with the investigator. He said there were no SOPs. There was just a binder with standing orders; although he conceded that some people might call these SOPs, but it was just a bunch of things the Chief had compiled.

The Town Attorney said, you’ve worked with several departments. What is typically in the SOPs? Rosfiled replied, … inaudible… how to operate vehicles, reporting of accidents, pre-planned for highly targeted.

The Town Attorney asked Rosfield to tell the court about some acronym agency name I did not catch. Rosfield said it was a body that provided suggested policies. However, none of their suggested policies were in the binder. There were no pre-plans in the binder. There should be pre-plans. For example, there should be a pre-plan for the gas station. There’s a gas station that has an auto repair shop and a little store. Pre-plans let us know what we’re getting into. For example, they can let us know about hazardous materials or materials that react to water. [The facility in question is Liar’s Paradise and HCR Automotive Repair. Previously the auto repair business in this location was Curry Automotive, owned by Matt Curry, who was at the time of the complaints the Deputy Chief of the Fire Department].

Rosfield said that he was not aware of any pre-plans for any facilities in Nottingham. He had made suggestions about SOPs, but the Chief received them dismissively, in both demeanor and language. That happened not only with him. The Chief didn’t think the suggestions of the full-time staff were worthwhile. All of the other full-timers received the same treatment Rosefield did. None of their suggestions were ever implemented.

There was a discussion of racial slurs. Rosfield said he was exposed to them at the department. He agreed that Frankie Bruno received the slurs. He said the Chief called Bruno a “spic” more than once. Sandra Vilchock also used slurs and said other racist things - while the Chief was in earshot of her. Sandra Vilchock also used homophobic words, such as “fag,” “rug-muncher” and inaudible. These were also made within earshot of the Chief.

A couple of days before the Chief was put on leave he pulled Rosfield aside and said, “it’s good you are on my side because inaudible [presumably a slur] are trying to run this place.”

The Town Attorney said, you have a disability, dyslexia. You are unable to write your signature. What has happened because of that? Rosfield said he got written up because of his inability to write his signature.

There was a discussion about blood carbon monoxide detectors, but this was inaudible. Vilchock’s attorney again complained about the witness being hard to hear.

There was a discussion of the TEMSIS reports. Rosfield said they were not difficult to fill out. They’re all digital. They vary in length. He described some of the fields on the form. He said that the QA team at the Fire Department requested changes to more than 75% of his reports. He would receive these changes in his departmental mailbox - an unsecured mailbox. These reports contained identifying information about patients. This information was moved around the department in unsecured mailboxes. There were paper copies. At some point these might be on the Chief's desk. In an unlocked office. Not locked up in a file cabinet.

There was a discussion of one incident where he was asked to remove a carbon monoxide reading. The instrument distinguishes between a reading of zero and no reading. He was told to remove all readings of zero. He was given no explanation.

TEMSIS reports are shared with hospitals. Rosfield described the sign-off process for these reports. It involved a time-stamped signature. He recounted an incident when he was working for Epsom that the time-stamped signature was relevant. Much of this was inaudible. But at NFRD he was told not to sign.

He did not agree with most of the changes he was asked to make in his TEMSIS reports, but he was not allowed to disregard the changes. If you did you got reprimanded.

He described the process for changing a TEMSIS report. He described steps I could not make out. He said that every login and every keystroke was recorded by the system. [Which presumably means that there was a record of every change, who did it, and what the original version said.]

There was a discussion of deficiency reports. Rosfield was asked if he knew the abbreviations. He was asked the meaning of some of them. The report was about the Utility Vehicle. He said he was involved in this report. He was asked to check the noise. It was suspected the brakes were metal to metal.

The Town Administrator pointed out that Rosfield had a BS in automotive engineering. She asked him to explain what metal-to-metal meant. Rosfiled said that this prevents you from stopping. She asked why Kustra signed it. Inaudible. She asked what Rosfield did after this. He put a note on the vehicle not to drive it. The vehicle was repaired on January 4. The records say that Ashly drove it on January 2. He did not know why the vehicle had been driven. He could not remember seeing the vehicle with the note having been removed.

He concurred that the department had low morale. He described a meeting the full-time Firefighters had with the Chief to go over some changes. The Chief called out Frankie Bruno at that meeting for putting a lock on his locker. Frankie had asked why his lock was cut off. The Chief said we don’t put locks on here. Frankie wanted to be reimbursed for his lock. The Chief declined to do so. Frankie got heated. The Chief told Frankie he was being insubordinate. This event took place in January or February 2023.

Rosfield said there was no written policy against locks, nor any meeting where it was said locks were prohibited.

The Town Attorney asked if there were talks of unionizing in that meeting. Rosfield said there were. The Chief said something in the meeting. Inaudible.

Rosfield said the Firefighters were starting a union. They had begun the process with a document to get signatures.

The Town Attorney asked how Rosfield took the Chief’s comment. The response was inaudible.

Something here about unionization for better pay and some other things that were inaudible.

Rosfield said he had read the investigator’s report. He found it to be an accurate representation of how the department was functioning.

Rosfield was not aware of any issues involving overtime policy changes. He was not aware of any dispute the Chief might have had with anyone on the board or the Town Administrator.

He denied that anyone had asked him to manufacture complaints.

The Town Attorney asked him if he was comfortable being here today. Rosfield said he was not.

Vilchock’s attorney then cross-examined.

There was a discussion of how blood carbon monoxide readings were taken. The result is a digital number, without decimals. The results are precise. There are background levels of carbon monoxide that vary among people. Smokers, for example, have high levels. This range is large. Rosfield didn’t know about how measurements might be rounded.

The attorney asked about what Rosfield meant by “within earshot.” Rosfield replied, around the corner. Or outside the office with the door open.

Rosfield said his previous position was in Laconia where he stayed only 3-4 months. When asked why he left, he said quite a few reasons. What were they? Issues, personnel, personal reasons. It had to do with racism. He had been unemployed for a couple of months before joining Nottingham. He didn’t recall receiving any other job offers. He couldn’t remember what pay he was offered, or what he received at Laconia. His current rate is $24/hr.

He never saw any locks on lockers at the Fire Station, except for the one associated with Frankie Bruno. But, he said he never paid attention. He did not know whether this was an application of policy or whether it was inconsistent.

Testimony for the day ended. Day 3 will have more witnesses, including former Chief Vilchock, and will conclude with final statements.

Photo byDoug Bates