Day 1 of Vilchock v. Nottingham Board of Selectmen

The hearing for former Fire Chief Jaye Vilchock’s case against the Nottingham Board of Selectman began the morning of June 11. It is expected to last three days and involve 11 witnesses. Judge English expressed concern that three days may be insufficient for so many witnesses.

The hearing began a bit after 10:00 am and continued until a bit before 4:00 pm. The first witnesses were Town Administrator White, Selectman Morin, and Charla Stevens (the investigator hired by the town).

Opening Statements

The Town Attorney’s opening statement was that the town’s position was based on two things:

1. That the complaints the town received were sufficient grounds to fire the chief.
2. That the chief is not entitled to the protections of the RSA that allow him a hearing to overturn the board’s decision because he was not appointed chief at the time of his firing.

Vilchock’s attorney’s opening statement was that the town failed to properly follow its procedures, that the town lacked sufficient grounds for firing the chief, and that the issue about the chief’s re-appointment is irrelevant because it was contrived after the fact.

Town Administrator White Testifies

Town Administrator White was the first to testify. Much of her testimony was about establishing for the court many things that those who have been following this case are well-acquainted with. However, there were some surprising bits of new information.

While Town Administrator White was made aware before she started working for Nottingham that there were some personnel issues ongoing, her first day on the job was the day that six members of the Fire Department presented their complaints to the board in non-public session (Monday, March 20, 2023). She was utterly surprised at the extent and the seriousness of the allegations, and the large number of complainants. Her predecessor, Interim Town Manager John Scruton, whose term overlapped with hers for a week, did not tell her any details about what was going to happen at that meeting.

She informed the court that the six complainants from the Fire Department were so concerned about not being able to be identified that they all carpooled together to the meeting in a car that belonged to none of them and that they entered and exited town hall by the back door [which I presume refers to the door to the Food Pantry that is in the side entrance to the building secured by the Police Department].

A couple of days later White met with a member of the Fire Department at the Town Hall, in the early evening. The woman said she was afraid to be seen at Town Hall because there was another member of the department there. She was afraid word would get to the Chief about her being there. She was visibly uncomfortable.

White was asked about how the news of the Chief being put on paid administrative leave was communicated to members of the department. She said she contacted all of the full-time members of the department but did not have a good feeling that the roster correctly listed who was currently a member of the department or whether their contact information was correct. So, she did not contact them.

The Town Attorney asked White about the board’s decision to install a new security system at the Fire Station. White responded that the system had been there a long time. It was believed many former members of the department might still have access to the building. On several occasions firefighters staffing the station reported hearing people bang on the doors yelling “help” or “fire.” When they investigated, they found nothing. New security cameras were installed so that such behavoir could be recorded. In cross-examination White reported that there was no evidence that the Vilchocks were responsible for this behavior.

The Town Attorney asked White many questions about specifics of town policies, particuarly with regard to the handling of personnel issues.

White was asked questions about the damage to Engine #2. She said it may have been brought up in the March 20 non-public session as a safety concern. When Interim Fire Chief Dale Sylvia was installed she asked him to investigate all of the department’s equipment. He found damage to Engine #2. It appeared to just be cosmetic damage. The bumper was slightly out of alignment.

An exhibit was presented showing a February 7, 2023 report written by Firefigher Bruno recording the damage. White said that this was not reported upward to her or the board. The estimate for the damages was $8.8k. The last report of Engine #2 going out on call was on February 5, being driven by the Chief. While it is not documented that the Chief damaged the truck, White believes he was driving when the bumper was damaged.

The Town Attorney asked about the board’s efforts to get Vilchock to meet with them once they received the investigator’s report. White reported that Vilchock’s attorney reported that Vilchock would be unavailable for 3 weeks due to medical appointments and a planned vacation. The board decided to meet without Vilchock. During this meeting they terminated him.

Vilchock’s attorney then cross-examined White. White confirmed that there were no accusations of sexual harrasement. That she recalls no discussion of the board considering using any dispute resolution method, including the one in the Fire Department’s bylaws or the one in the town’s personnel policy. The town did not conduct a hearing, as called for by its personnel policy.

She confirmed that the town never received any written complaints about the Chief, and that the town’s personnel policy at multiple places called for written complaints to be filed as part of an escalation process. She said that new members of the board learned about the complaints by being briefed about them, plus some notes and minutes.

There was a discussion of a February 7, 2023 email from Interim Town Administrator John Scruton to his boss at Municipal Resources, Inc. about hiring a temporary Fire Chief as the board was about to fire its current one. White says she was not briefed about this.

White reported being the author of the timeline the board published on July 17, 2023, and acknowledged that this timeline does not reference the February 7 email.

White was asked if she thought Vilchock was willing to be interviewed by the investigator. She said she knew of no reason for him to be unwilling. She confirmed that the town had no policy preventing accused employees to have counsel with them for interviews. She said it was the investigator’s policy not to allow this and that the town deferred to her. She was asked if the town was bound to follow the investigator’s policy. She said no.

Vilchock’s attorney had White confirm that the damage to the bumper was cosmetic. It appeared to be from hitting a snowbank. The board had no information to conclude that the damage was a safety issue. An exhibit of the repair estimate was presented. The attorney asked if the truck was unsafe to operate in this condition. White responded that she did not have the expertise to assess this.

There were further questions about the town’s sexual harassment policy where White elaborated on the separate procedures for sexual harrassment accusations versus other accusations. She was asked how the board decided what procedure to follow. White said normally the board would not be deciding on a procedure. They would just follow what the policy manual said to do. The attorney asked White how employees were to determine what procedures the town was going to follow literally and the ones the town wasn’t going to follow. She replied, by what they read.

The Town Attorney asked if White thought the outcome would have been different had the town followed its stated procedures. White said that regardless of the process the town would have fired Vilchock.

Testimony of Selectman Morin

The Town Attorney asked questions to establish Morin’s long service to the town and that he was the board’s liaison to the Fire Department in the period leading up to the accusations. Morin reported that he had heard no substantive complaints about the Chief prior to March 20, 2023.

Morin was asked whether he was aware of the election and appointment process for the Chief. He said he was now, but he never looked into it prior to the subject being brought up. The board’s appointment process for the Chief was that the document was brought to them by the Town Administrator. Morin said he was unaware of any discussion about not re-appointing the Chief in 2023 but he did recall that the board was advised by Chairman Danis not to do it. An exhibit was presented dated January 23, 2023 from the Fire Department for the board to sign to re-appoint the Chief. The document had not been signed.

Morin said he was unaware of what was going to be presented in the March 20 non-public meeting, and that he was shocked and appalled by what he heard in that meeting. He never expected it. The presentation lasted about 45 minutes.

Morin was asked if the board asked Vilchock to meet with them. He said yes, but Vilchock did not do so. The Town Attorney had Morin note that the Chief’s termination letter said that the town could discipline Vilchock for failure to appear.

The Town Attorney asked if Morin felt that Scruton and White had adequately performed their jobs to keep the board informed and to advise the board. He said yes.

Vilchock’s attorney then cross-examined Morin, who revealed that it was former Chairman Danis who advised the board to hold off on re-appointing the Chief, and that Danis gave no reason to the board for holding off the re-appoitment. Morin revealed that at the time of the February 7 email Scruton wrote about firing the Chief, Morin was unaware that there was any reason for doing so. Morin also disclosed that it was his understanding that the investigator was hire to investigate the whole department, not just Vilchock.

The attorney asked if in his time working with the Chief whether Morin had found him to be generally competent. Morin said yes.

The attorney asked if Morin recalled Vilchock asking the board for a non-public meeting to complain about Scruton. Morin said he did not remember very well, but he did remember discussion concerns about employee scheduling, but there was no result from that meeting. However, as far as Morin was aware, Scruton and Vilchock worked okay together.

The attorney directed Morin’s attention to the text of the termination letter, getting Morin to agree that there was no mention in the letter about the Cheif’s re-appointment or hold-over status, and getting him to reveal that the letter was drafted by the town’s legal counsel for the board to sign.

The attorney had Morin compare various sections of the investigator’s report - which Morin confirmed that he and the board had read and relied upon for their decision - with the termination letter. Morin conceded that while the termination letter said there were HIPPA violations, the investigator’s report made no such finding. Morin said he didn’t know how this got into the termination letter.

The same thing happened with violations of the labor relations act. They are a teremination reason, but not a conclusion of the investigation.

A similar thing happened with the violations of medical reporting guidelines where Morin conceded that he did not know what guidelines had actually been violated, nor had he ever read the guidelines.

There were questions about why the investigator’s interview process took so long. Morin was not aware that one of the reasons was that Vilchock wanted his attorney with him. Morin conceded that he had no objections to Vilchock having an attorney present.

Morin revealed that when Vilchock said he couldn’t meet with the board on its preferred date to discuss the investigator’s findings with him, that the board decided to meet without him rather than extend his paid adiministrative leave. Morin didn’t know how much in total the town paid Vilchock, but he kniew that his stipend was $11k/yr. Morin did not recall how much the investiagton cost or how much was budgeted for it. He did not recall on what basis the investiagaor was paid, but presumed it was by the hour. His recollection was that the hourly rate was around $250.

Morin conceded that the board never discussed the option of not re-appointing the chief as part of their delibaratons about firing the Chief.

Testimony of Charla Stevens

Vilchock’s attorney questioned Stevens first. Questioning began with her background where it was established she had no background or training in emergency response and that her main background was as an employment lawyer representing employers. It was also established that Stevens consulted no outside authorities as part of her investigation, and that the investiation was limited to inverviewing members of the department.

Stevens did not recall providing the town with an estimate for her services, but that she billed somewhere around $20k for them. She charged somewhere between $350 and $375 per hour for her work for the town.

Stevens decided on what witnesses to interview by starting out with the six complainants and then asking them who she should also speak to. Members of the department were all free to ask to be included. Stevens also chose interviewees on the basis of age and gender to ensure no underrepresentation.

The attorney inquired about Stevens’ understanding of mutual aid. She gave a general overview. The attorney asked if mutual aid decisions were a function of resources available. She said she didn’t know, but it would make sense for them to be so. She was asked whether it was important in mutual aid decisions to consider the resources that were being taken from other towns. She said she was not qualified to answer that question.

Stevens was asked to give a summary of the incident described to her regarding the Chief overturning a mutual aid request for a woman with a broken leg.

A woman and her husband were cutting trees on their property. A tree fell upon the woman, pinning her and breaking her leg. The husband got her unpinned. Two Firefighters from Nottingham arrived. The decided that they needed mutual aid to bring in someone qualified to provide pain meds. Exeter was the closest location that could respond. The Firefighters also thought they needed more assistance to bring the woman out of the woods.

The investigator’s report said that the Chief overruled the mutual aid request and directed the Deputy Chief to the scene to assist.

Stevens conceded that she did not know how long it took to get the patient to the hospital, or whether the patient would have gotten there faster had there been mutual aid from Exeter. She was not aware of any complaint that came from the patient.

The attorney asked why Stevens considered this incident so concerning. She responded that it was because the Chief was not on the scene. Many of the interviewees said that the people on the scene were the most knowledgeable about what was needed. Stevens then conceded that Vilchock had been Chief for nearly 17 years. The attorney asked her if she thought a Chief with that kind of experience was likely to be correct. Stevens refused the question. She said that was not the issue and not what she was deciding upon in the issue. The staff who objected also had many years’ experience. Many of these thought that it was because the Chief had an issue with the Firefighter who called for mutual aid, and that the Chief simply didn’t like to call for mutual aid.

The attorney asked Stevens if she asked the Chief why he canceled the mutual aid call. She said essentially that she learned from the Chief that he thought this was something that could be handled by NFRD personnel and that mutual aid was called prematurely. She conceded that this may have been the case, but the interviewees convinced her that it was the staff on the scene who should have been the ones with authoity to make the decision and not the Chief.

The attorney next brought up the incident of the person who had fallen into a well. The attorney asked if Stevens had talked to anyone in the Durham Fire Department to corroborate what had happened. She said that interviewing anyone outside NFRD was outside the scope of the project she had been given. The attorney pressed, so what if you had been told by the Durham Chief that mutual aid had been called off because they got the party out of the well? Stevens again said that this was outside the scope what she was asked to investigate.

The attorney moved onto the issue with the TEMSIS (medical incident) reports which the investigation concluded that the QA was faulty. After a discussion of the details, Stevens conceded that she made this conclusion because interviewees claimed it was true, and not based on any consideration of the regulations. Her concern was that this QA situation could expose the town to legal action.

Next there was a discussion of the accusations that the Chief gave unsolicited negative employee references to other departments. Stevens conceded that she did not speak to anyone in any other departments in making this finding. She maintained that the point of the conclusion was that this behavior exposed the town to liability and was harmful to morale.

There was a discussion of the incident on page 18 of the report regarding cutting a lock off of a locker. Stevens said she had asked the Chief if there was a policy against having locks. She was pretty sure the Chief said there was a policy but the person assigned to cut the lock claimed there wasn’t. The attorney said that this wasn’t the issue. The issue was that the chief had told her that the employee didn’t ask permission. In the Chief’s tenure no one ever put a lock on their locker. “We don’t have locks here.” Stevens said that if he had said that to her it missed the issue. The issue was that there was no policy. The differnce was that the staff were not aware of it. Stevens conceded that no one else complained that they were not allowed to have a lock.

The attorney moved onto page 9 of the report, about standard operating procedures (SOPs). Stevens gave an overview of the complaints about the SOPs and conceded that she did not investigate any of the complaints or review any guidelines about SOPs. She noted in her report that she made no finding on this matter. It’s just noted as an issue that was widely raised.

The attorney brought up the incident Stevens investiagted about the fire in the state park in which the Chief was accused of saying he distusted one of his staff. Stevens pointed out that this was the same Firefighter whose call for mutual aid was overturned. There’s a pattern of there being a relationship issue. Stevens conceded that the Chief was responsible for personnel management and had the authority to treat employees differently based on their competence, but she objected to that assessment becaused the interviewees thought this assessment was unwarranted.

The attorney asked if Stevens had recommended Vilchock be fired. She said she did not. She absolutely does not make recommendations about whether people should be fired. She recommended a variety of interventions including training and coaching, not just for the Chief but on some issues for the whole department, particularly about workplace behavior.

The Town Attorney then cross-examined Stevens. Many of the questions were about Stevens’ qualifications to do the investigation and her methods for ensuring accuracy, particuarly associated with evaluating testimony.

The Town Attorney then brought up the issue of whether the accused should have an attorney with them for their interview. Stevens said this is not a good practice. It hinders rapport. She doesn’t allow it - although there have been exceptions. It is seldom requested, and there’s no legal right to it.

There was a discussion about how one knows when to stop interviewing. Stevens said when reports start becoming redundant. Stevens did say that there were people she was recommended to interview who she chose not to. She reiterated that it was inappropriate to interview anyone outside the department.

Stevens said that one thing that was out of the ordinary for her investigation was the intensity and the pervasiveness of fears of retaliation. This made her write her report in ways that made it difficult for a reader to determine who said what. Only the Town Attorney got the key to who said what.

The other thing was a credibility issue with the Chief. The Chief categorically denied all accusations. Normally what one sees is that the accused gives a different version of events, not a denial of events. Further, there was a witness who appeared to support the Chief who described witnessing a couple of the denied events, although saying they didn’t happen in the way the accusers had claimed.

There were questions about why it took so long to get an interview with the Chief and the lengthy negotiations on how it would be conducted. Stevens found this odd because usually the accused is eager to be interviewed

There was a discussion about the safety of the equipment, particularly the brakes on the utility vehicle. Stevens pointed out the liability exposure for the town and her conclusions of significant risk.

On the issue of SOPs, Stevens pointed out that the concerns were based on the interviewees complaints of lack of being trained on them. The interviewees were concerned about lack of pre-planning for potential flamables, and lack of information about points of ingress and egress for the large businesses in town, the park, and the industrial facilities. Further, the staff raised these concerns with the Chief. The Chief was unreceptive to them. The Chief was resistant to suggestions from staff that had worked elsewhere or who had different certifications or more recent certifications. For example the younger staff wanted to use an app called “I Am Responding.” The Chief rejected its use.

The Town Attorney then brought up the slurs Stevens had learned about. These were “spic,” “chink,” “pussy,” “homo,” “faggot,” “rug-muncher,” and “crutch.” Except for “crutch” there were no accusations against the Chief that he had used any of these slurs. The accusation was that he was aware of the problem - both from complaints and because sometimes it happened in his presence - but he failed to do anything it. This constitutes a toxic work environment, for which the employer is responsibe and which could subject the employer to lawsuits and complaints filed with the EEOC. The Chief’s use of “crutch” was associated with a disabled person on the staff who didn’t want a task because of her disability. Some of the slurs were said to have come from the Chief’s wife, Lieutenant Sandra Vilchock. There were no disciplinary actions taken against her for this behavior.

Stevens said a lot of her report was related to threats of retaliation. She said she found the accusations credible. There were also accusations about the inconsistency of discipline.

Stevens concluded that it was not a well-functioning workplace. She rejected the idea that there was collusion to make up lies to get the Chief fired. She thought that had the board done nothing to address the problems in the department that several members of the department would leave. There was a risk of claims against the town for a hostile work environment. Her biggest concern was about the risk of retaliation, as the town had a duty to protect the employees from retaliation.

That was the end of Stevens’ testimony. Tomorrow there will be 4 or 5 more witnesses.

Photo byDoug Bates