Council Votes Unanimously to End Stearns’ Employment

Galen Stearns concluded his employment with the Town of Derry Tuesday night, Oct. 27, among the kinds of procedural issues that have dogged the current Town Council since it was seated in March 2015.

Stearns, of Windham, served as Derry’s Town Administrator starting in November 2014. He went on medical leave in July and the Council voted to terminate his employment in a nonpublic session Aug. 26; a decision that was not announced publicly at the time.

A 91-A freedom of information request by the Nutfield News for the non-public minutes of the Aug. 26 meeting resulted in a response from Interim Town Administrator Susan Hickey that the minutes were sealed and can’t be released.

Stearns requested a public hearing on his termination and the Council gave him one in line with Section 8.4 of the Town Charter, which states:

• (A) The Administrator may be removed by a majority vote of all members of the Town Council as herein provided. The Town Council shall adopt a resolution stating its intention to remove the Administrator and the reasons therefore, a copy of which shall be served on the Administrator. Immediately upon delivery to the Administrator of the resolution stating the intent of the Town Council, the Administrator shall be relieved of office and all further duties.

• (B) The Administrator may reply thereto in writing within 10 days, and upon request, shall be afforded a public hearing which shall occur not earlier than 10 days nor later than 15 days after such hearing is requested. After the public hearing, if one is requested, and after full consideration, the Town Council, by majority vote of all its members, may adopt a final resolution of removal. The Administrator shall continue to receive full salary until the effective date of a final resolution of removal. The action of the Town Council in removing the Administrator shall be final.

• During the period between adoption of a resolution under Paragraph (A) of this section and final action under Paragraph (B), the Town Council shall, by majority vote of all its members, appoint an interim Administrator to serve at the will of the Town Council for not more than 90 days. If a final resolution of removal is not adopted, the Administrator shall resume office forthwith.

RSA 91:A calls for any “hiring, dismissal, promotion or compensation” of a public employee, along with discipline and investigation of charges, to be held in a nonpublic session “unless the employee has a right to a meeting and requests that the meeting be open” and the “right to a meeting” is based on a statute, contract or personnel handbook.

“Although we feel there is cause to terminate Mr. Stearns, we are doing it without cause,” Chairman Tom Cardon said.

Stearns had a back operation in September and currently walks with a cane.

According to the Web site of the Human Resources Council, “without cause” is defined as “the employee is being terminated for reasons that are not related to misconduct and notice of the termination and possibly severance pay is required as outlined in the employment/ labor standards.”

“With cause” is defined as when “an action or omission by the employee has irreparably damaged the employment relationship between the employer and the employee. Usually, termination with cause occurs when an employee is dismissed for a serious reason related to the employee’s conduct.”

In his time at the microphone Stearns said, “I have enjoyed my work in Derry. It is an excellent town with great people and great town employees.”

Stearns acknowledged that he “started out on the wrong foot” with Derry. He was tasked with coming up with a town budget for 2016 and was asked by the Council to reduce the tax rate.

“I tried to be fair and responsible,” he said. But while the Council asked for a $2 per $1,000 reduction, Stearns delivered a budget with a $1 per $1,000 reduction.

“It did not meet the Council goals,” he acknowledged.

Stearns said he would like to continue as Town Administrator. “I am dismayed that I am being terminated while I am out on disability,” he said. “I am dismayed that I had back surgery and now my health insurance is being terminated.”

Stearns stepped down from the microphone and Cardon read the resolution, which stated the Council’s intent to remove Stearns without cause from being Town Administrator. Councilor David Fischer seconded the motion and the Council voted unanimously to approve it.

“It is a sad day for Derry,” Cardon said.

When Cardon tried to adjourn the meeting, community member and former Councilor Brian Chirichiello said, “You said in the notice that this was a public hearing. If the public is not allowed to speak, that is illegal.”

But Cardon nevertheless adjourned the meeting, and several of the Councilors went back to their private chambers.

A visibly agitated crowd of residents remained, with some saying goodbye to Stearns and others expressing concern about the lack of public input.

“I am a little confused,” resident Jenna Paradise said, while Chirichiello reiterated, “A public hearing is a public hearing.”

But Hickey explained after the meeting that there are two types of public hearings. One is the kind where the public is invited to speak on an issue, for example, when the Planning Board considers approving a subdivision or the Conservation Commission wants to place an easement.

The public hearing for a terminated employee is different, Hickey said. “The public hearing for a terminated employee is not a public hearing unless the person facing termination asks someone to speak on his behalf,” she said.

“Tom should have taken two minutes to explain that,” Councilor Phyllis Katsakiores said.

Katsakiores declined to say why she voted in the affirmative but added, “I liked him and I am sorry about the way the whole thing turned out.”

After the meeting, Councilor Richard Tripp said he voted in the affirmative because “there were issues,” but declined to say what they were.

“Once again, it was a gross violation of the public trust,” Republican State Representative and former Councilor David Milz said. “They charged him with building a budget whose parameters were outrageous.”

Fellow Republican State Representative John O’Connor was more blunt: “He got screwed.”

“I feel an injustice was done to a good Town Administrator,” O’Connor amplified. “He was doing his due diligence for the town.”

Stearns was hired last November after the Town Council conducted its second search for an administrator to replace John Anderson, who terminated his employment with the town in October 2013. The Council had determined to do its own search and save money, and when three finalists interviewed in July did not seem the right fit for Derry, they reopened the search.

Under normal circumstances, Stearns’ contract with the town would have expired Oct. 31, 2017. The contract states that the employer, the Town of Derry, has the right to terminate the administrator’s employment without cause, including a severance payment of 16 weeks of salary.

The employer also has the right to terminate the agreement “for cause,” which would include conviction of a felony, misdemeanor or major motor vehicle offense; conduct that “puts the employer in disrepute;” failure or refusal to perform any duty or responsibility under the agreement; misconduct or gross negligence in carrying out obligations; commission of an act of fraud or dishonesty; and material breach of the employment agreement.

Stearns’ weekly salary was $2,211.

Reached by phone later in the week, Cardon said according to Stearns’ contract, Stearns was allowed 16 weeks of severance pay. This does not include medical and other benefits but is strictly salary, according to Cardon.

At Stearns’ weekly salary of $2,211, that will amount to $35,376.

“It is significantly less than we had to pay John Anderson, the former Town Administrator,” Cardon said.

Cardon said he wasn’t sure what the Council would want to do next, but said it would be discussed at the Nov. 3 meeting, which occurred after Nutfield News press time. He said while he couldn’t speak for the rest of the Council, he was leaning toward opening a new search for an administrator, and he was not in favor of doing this one on their own.