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Board of Assessor search extended; director choices awaited

Town Seal

Jim Doherty, 2010Doherty

Search for new director of assessments goes on

UPDATED, June 20: The search to fill a vacancy on the Board of Assessors has been extended through 4 p.m. Monday, June 23, and five have applied.

The process to name a director of assessments continues, too, as 14 have applied. In both cases, the applicants' names have not been released.

The jobs, which deal with determining accurate property values and establishing annual tax rates, became open when:

    -- John B. Speidel, under a confidential agreement, voluntarily resigned the position he had held since September 2011 on April 18; and

    -- Longtime member of the assessors Jim Doherty resigned May 21, offering no reason.

O'Connor ignores speculation

That has led to speculation, proffered Monday, June 9, to selectmen by Precinct 13 Town Meeting Steve Harrington that Doherty resigned to seek the director job. He called it a "fear" that this would be the result and said such a move "is seen as a big negative."

Mary Winstanley O'Connor, one of two remaining assessors, responded that "personnel matters don't get discussed in public" and that she had no comment "to the rest of that soliloquy."

The personnel matter to which she referred is the agreement Speidel reached with the town to leave. The reasons for his departure have not been made public and were redacted from the agreement YourArlington received. Efforts to reach Speidel have been unsuccessful.

As two processes aimed at making the Assessing Department whole again go one, here are some of the facts:

Vote to postpone decision after legal clarification

On June 9, the selectmen voted 4-0, with Kevin Greeley absent, and assessors 2-0 to postpone a decision about filling the Board of Assessors' vacancy to a date set by Selectman Chairman Steve Byrne. Applications for the position are open through June 23.

Board of Assessors Chairman Kevin Feeley was asked twice this month how many applicants there are for the board position, and he has not responded. YourArlington has learned the number from another sources and is trying to confirm the identities.

Town Counsel Doug Heim, citing Massachusetts General Law (Ch. 41, S. 11), said a candidate need only be a registered voter of the town, the vote for the candidate is by a simple majority and the vacancy does not require public posting.

The candidate will serve until next April's town election, completing the unexpired term of Doherty, whose May 21 letter of resignation to the town clerk does not give a reason for leaving. Two calls to his home have not been returned.

Heim said there was confusion about the time frame in which the appointment to be made. First believing the appointment would have to occur June 9, he revisited the statutes and found this was not the case, giving the board's more time.

Loreti raised timing issue

Chris Loreti, a former member of the Redevelopment Board, raised the reading of the statute on the Arlington email list June 5. He disagreed with Selectman Dan Dunn's reading of it and asked whether he would "publicly commit to moving that the board cancel the appointment of the Assessor scheduled for Monday, June 9 and then conduct an honest and open process to fill this vacancy following a well-publicized search with a reasonable time for candidates to respond?"

Dunn responded to the email list Sunday, June 8:

"After receiving a polite email questioning the 7-day appointment deadline, I went back to Town Counsel again and asked him to double-check. His original email and legal opinion about the appointment process was the one I have been relying on.

"He then did more research and went back to the state, and then late last week he informed me (and the rest of the board) that his original interpretation was in error. While there are a number of good reasons to promptly fill a vacancy on a 3-person board, we aren't required to do so in the 7-day timeframe he had originally told us about.

"My intent at tomorrow's meeting is to seek to postpone the appointment of the vacancy until our next meeting so that we more broadly announce the vacancy."

On June 9, that's what Dunn did. He first asked that the appointment be put off until June 23, but O'Connor, an attorney, said she would be in Beirut from that day until June 3, during that time presenting a paper.

Selectmen Joseph Curro Jr. agreed with Dunn's suggested delay and asked that the board set out its timeline and procedure about deadlines. He noted his experience on the School Committee, when he resigned his seat to run for selectman, and cited the committee's process. That included interviewing finalists for committee seat in public.

Dunn asked by when the Board of Assessors needed to have three members. O'Connor said Feeley was due to go in the hospital in 45 days. Two are needed for a quorum. "We don't want a vacancy for very long," she said.

Byrne suggested three weeks to receive resumes. Curro thought it should be two. The boards settled on June 23. When the appointment will be made remains to be determined.

Assessment-director issues

As for the assessment-director position, Caryn Molloy, town human-resources director, responded to two basic questions Wednesday, June 11:

The advertised annual salary range for the position, as of July 1, is $78,870 to $113,972. Speidel's annual salary in the last year he worked here was $92,275.

She deferred two other questions to Feeley: How many finalists are expected, and when is a new director expected to be named?

Asked about those, Feeley wrote Wednesday, June 11, "The remaining members of the board will begin to develop a process early next week."

YourArlington first learned about the opening May 13 and was directed by a reader to a posting at the town website, which had a May 28 deadline for applicants. The press of work delayed pursuing the story until later.

Molloy, said the town has advertised the position on the town's website, the Mass. Municipal Association, Mass. Association of Assessing Officers and

When he was assessments director in Bedford, before he came to Arlington, Speidel was president of the Mass. Association of Assessing Officers.

On June 5, Molloy responded to a public-information request asking for the agreement under which Speidel left town employment. With a number of the provisions blacked out, the agreement says "... the parties wish to resolve all issues related to Mr. Speidel employment with the Town, including his separation therefrom."

What the confidential agreement says

The points follow:

"1. Resignation. Mr. Speidel voluntarily and irrevocably resigns his employment with the Town effective Friday April 18, 2014. Thus, this paragraph #1 shall constitute Mr. Speidel's voluntary and irrevocable resignation of employment with the Town, which the board hereby accepts.

"2. [redacted]

"3. Settlement Compensation. In consideration for the general release and waiver of rights contained in this Agreement, Mr. Speidel will receive settlement compensation equivalent to 8 weeks of salary $14,137 minus withholdings for state and federal taxes and other withholdings required by law or authorized by Mr. Speidel. Mr. Speidel acknowledges that absent this Agreement, he would not be entitled to such settlement compensation.

"4. Vacation Pay. On the next regular pay date after Mr. Speidel’s resignation becomes effective on April 18, 2014, the Town will pay Mr. Speidel for his accrued but unused vacation leave. minus withholdings for state and federal taxes and other withholdings required by law or authorized by Mr. Speidel, Mr. Speidel' accrued but unused vacation leave as of the effective date of his resignation will be 82 hours of vacation leave.

"5. Sick Leave Buyback. On the next regular pay 'date after Mr. Speidel' resignation becomes effective on April 18, 2014, the Town will pay Mr. Speidel for 25% of his unused sick leave, minus withholdings for state and federal taxes and other withholdings required by law or authorized by Mr. Speidel. Mr. Speidel' sick leave buyback as of the effective date of his resignation (April 18, 2014) is $2,674.20.

"6. The Town Has Satisfied All Payment Obligations to Mr. Speidel. Other than the payments set forth in paragraphs #3, #4 and #5 of this Agreement, the Town has satisfied all payment and benefit obligations it has 01' had to Mr. Speidel and Mr. Speidel acknowledges receipt of said payments and benefits.

"7. Waiver of Mr. Speidel' Appeal Rights. Mr. Speidel agrees not to appeal, or otherwise challenge his resignation referenced in paragraph #1 p the treatment of the disciplinary proceeding in paragraph #2 or the payment of settlement compensation and/or benefits referenced in paragraphs #3, #4 and #5 of this Agreement.

"8. [redacted]

"9. [redacted]

"10. General Release and Waiver of Rights. In consideration of the terms provided in this Agreement, including but not limited to the settlement compensation referenced in paragraph #3, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Mr. Speidelm on behalf of himself, his executors, heirs, administrators, assigns and anyone else claiming by, through or under him, remises,
releases, covenants not to sue, commence proceedings against and forever discharges the Town of Arlington and all of its departments, attorneys, former and current employees, principals, administrators, officials, agents, representatives, committee members (past and present), elected officials, appointed officials, independent contractors, insurers, successors and assigns (the "Releasees") from and with respect to any and all debts, demands, actions, causes of action, suits, covenants, contracts, wages, bonuses, promises) charges, complaints, grievances, obligations, attorneys' fees, expenses, costs, damages and any and all claims; demands and liabilities whatsoever of any name and nature, both in law and in equity ("Claims"), which he now has or ever had against each of the Releasees by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of execution of this Agreement, arising out of, based on or connected with Mr. Speidel's employment with the Town of Arlington or his separation therefrom and any causes of action, charges or claims arising under or based on the Civil Rights Act of 1886, 42 U.S.C. §1981; Section 2 of the Civil Rights Act of 1871,42 U.S.C. § 1985(c); 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., as amended by the Equal Employment Opportunity Act of 1972,42 U.S,C. 2000e et seq. and the Civil Rights Act of 1991, 42 U.s.C. §1981aet seq.; the Equal Pay Act of 1963, 29 U.S.C. §206(d); the Rehabilitation Act of1973, as amended by the Americans With Disabilities Act and the 1991 Civil Rights Act; 29 U.S.C. §§ 706(8), 791, 793, 794. 794a; the Americans with Disabilities Act of 1990, as amended by the Civil Rights Act of 1991, 42 U.S.C. §12101, et seq.; the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq.; Executive Order No. 11246, 3 C.P.R 1964, reprinted as amended in 42 U.S. C. §2000e; the Family and Medical Leave Act of 1993, U.S.C. §2601 et seq. (hereinafter referred to as the "FMLA"); the Massachusetts Fair Employment Practices Act, M.G.L. 151B; the Massachusetts Equal Rights Act, M.G.L. 93, §§102-103; the Massachusetts Civil Rights Act, M.G.L. c. 12, §11H, Ill; the Massachusetts Privacy Act, M.G.L. c. 214, §lB; Massachusetts General Laws, chapter 71; the Massachusetts Civil Service Law, M.G.L. c. 31; Massachusetts General Laws chapter 150E and any other state, federal 01" municipal employment law. statute, public policy, order, by-law, ordinance, rule or regulation affecting or relating to the claims or rights of employees and any and all actions of whatever nature in tort, contract, or arbitration, judicial, quasi-judicial or administrative, and any claims or suits relating to the breach of an oral or written contract, misrepresentation, defamation> interference with prospective economic advantage, interference with contract, intentional and negligent infliction of emotional distress, negligence, breach of the covenant of good faith, or fraud which Mr. Speidel had, now has, or claimed to have, known or unknown, suspected or unsuspected against the Releasees, Mr. Speidel understands that by signing this Agreement that he is expressly and voluntarily releasing a claims he has, may have, or could have brought against the Releasees from the beginning of the world to the date of execution of this  Agreement arising out of, based on or connected with Mr. Speidel's employment with the Town of Arlington or his separation therefrom.

"11. Waiver of Massachusetts Wage Act~ Mr. Speidel acknowledges that he is voluntarily and knowingly waiving any and all lights and claims that s/he may have pursuant to the Massachusetts Wage Age, M.G.L. c. 149, §§ 148 and 150.

"12. ADEA Waiver and Revocation Period. Mr. Speidel acknowledges, warrants and represents that:

"(a). he was advised in writing to consult with an attorney of his choosing and that he was given an opportunity to consult with his attorney prior to executing this Agreement; and

"(b). he has carefully read this Agreement and understands its contents; and

"(c). he understands that, through this Agreement, he is waiving, among other things, his right to bring any claim, for age discrimination against the Releasees under the provisions of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. 621, et seq., and under the provisions of Massachusetts General Laws Chapter 151B and

"(d). by entering into this Agreement, he is receiving compensation that he would not otherwise be entitled to receive;

"(e). he has been offered a period of at least twenty-one (21) days within which to fully consider this Agreement; and, if it is found that he has executed this Agreement in less than the 21 days allowed to him, it is his voluntary choice to waive the balance of the 21~day period; and

"(f.) he understands 'that, for a period of seven (7) days following the execution of this Agreement, he may revoke this Agreement and this Agreement shall not become effective or enforceable until after the revocation period bas expired. Any such revocation shall be in writing and shall be delivered to:

"Caryn Cove Malloy
Director of Human Resources
Town of Arlington
730 Massachusetts Avenue, 3rd F100r Annex
Arlington, MA 02476

"Absent timely revocation, this' release shall be binding. If Mr. Speidel exercises his right to revoke this Agreement, all promises under this Agreement shall be null and void, including but not limited to the promises contained in paragraphs #2; #3, #4 and #5 of this Agreement.

"13. Acknowledgement that no Claims have been filed. Mr. Speidel confirms that he has filed no claim. charge, complaint action against any of the Releasees in any forum or form, In the event that such claim, charge, complaint or action is filed, Mr. Speidel shall not be entitled to recover any monetary relief or recovery therefrom, including costs and attorney's fees.

"14. Indemnification. Mr. Speidel on behalf of himself, his executors, heirs, administrators, assigns and anyone else claiming by, through or under him, agrees to indemnify and hold harmless the Releasees from and against any and all actions and events released, and for which he has covenanted not to sue, under this Agreement and agrees to pay all costs, attorneys' fees, expenses, judgments or awards incurred by the Releasees defending against any such actions and events.

"15. No Wrongdoing or Liability by the Releasees. Mr. Speidel acknowledges and understands that the execution of this Agreement by the Board of Assessors and any action taken by the Town and the Board of Assessors pursuant to this Agreement is for the purpose of the compromise and settlement of any claims for which wrongdoing and liability are expressly denied by the Releasees, and that this Agreement is not in any way to be construed as an admission of liability or wrongdoing, both of which are expressly denied by the Town, the Board of Assessors and the Releasees.

"16. Confidential. "Mr. Speidel agrees that he will not disclose the terms of this Agreement except that he may disclose the terms of the Agreement to his attorney, members his immediate family and as required by law. The Town agrees it will not disclose the terms of this Agreement except as required by law.

"17. Governing Law. This Agreement shall be interpreted, enforced, governed, and construed by, under, and in accordance with the laws of the Commonwealth of Massachusetts.

"18. Severability. If any term(s) 01' provisions of this Agreement shall be held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the validity 01' enforceability of the remaining terms and provisions shall not be affected, and such invalid and/or unenforceable terms) and/or provision(s) shall be deemed modified to the extent necessary to make it or them enforceable.

"19. Voluntary Agreement. John B. Speidel acknowledges that he is executing this Agreement voluntarily with full knowledge of its provisions.

"Agreed to by the parties on the dates indicated below:

"For the Town of Arlington
Board of Assessors,

"Kevin P. Feeley Chairman

As per the agreement, both Feeley and O'Connor declined to discuss the matter.

This story was published Wednesday, June 11, 2014, and updated June 20.

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