When is violation of a town policy not a violation? When the town decides to change that policy after getting caught violating it.
Last week, the Morristown Select Board deleted a section of the town personnel policy that required employees to tell their boss in writing if they are working a second job.
The change came only after it was discovered that Todd Thomas, the town zoning administrator and planning director, was running a consulting business on the side, and had never filed a letter asking for permission.
Town administrator Dan Lindley acknowledged he’d never made any employee do it, either.
“We’ve never required it in writing,” Lindley told the select board Nov. 4. “I’m recommending to the board that we remove the ‘in writing’ requirement.”
The requirement has been in the personnel policy for more than a decade, a policy that Lindley would have had a hand in crafting.
The policy was approved June 29, 2009, almost a year after Lindley was hired as town administrator, and it had been amended 10 times before last week.
The section of the policy dealing with outside employment states that “the primary occupation of all full-time employees shall be to the town.”
Until last week, the policy also stated, “Prior to accepting any outside employment, employees will disclose their intent to their department head in writing and obtain prior clearance from the town that such employment does not constitute a conflict of interest.”
The amended policy strikes “in writing” from that sentence.
There was scant discussion about the change during the meeting and no explanation from Lindley or anyone else as to why it was necessary, other than it had not been followed.
All five members of the select board were asked to comment on the sudden change in policy, but only select board chairman Bob Beeman responded.
Beeman was asked, isn’t it better to have something in writing rather than not?
“There’s no need to have extra paperwork if we don’t need it,” Beeman said.
Lindley admitted last week he didn’t decide to ask for the policy change until after the News & Citizen asked for Thomas’s letter of intent for his side job, and discovered it didn’t exist.
Beeman has known about the potential policy violations since the newspaper spoke with him about the issue in late October, and said he said he talked about it with at least two board members, Chris Towne and Eric Dodge, on separate occasions.
“We have these little splinter conversations, but we do it in the right way so we’re not having a quorum,” Beeman said.
But Beeman acknowledged that perhaps the select board rushed to change the policy without adequate discussion or community input.
“Well, that’s true, now that you bring it up,” he said Tuesday. “I do think it’s a slippery slope when the public doesn’t know what’s going on.”
Work on the side
Thomas owns Vermont Land Use Planning LLC, a consulting business. His LinkedIn page states he’s owned it since 2014; according to the Vermont Secretary of State’s office, he officially incorporated it this past May.
He initially used the town government’s mailing address and his government email address when registering the business with the state, although he changed it to his personal address the next day; he cited a “technical issue” with the Secretary of State’s website.
The News & Citizen has found three instances where Thomas performed consulting work, or offered to.
In 2016, he provided an expert opinion on Newark’s town plan for the law firm Valsangiacomo, Detora and McQuesten. The town had lost a 2012 lawsuit, in which a developer accused Newark officials of illegally changing the town plan to block a wind turbine project. The law firm brought in Thomas to vouch for the new plan.
Thomas worked with the law firm again in 2017 when it represented Middletown Springs residents who opposed an industrial solar array in town. Thomas testified the array would have a negative effect on the area, calling it “a good project in a terrible location.”
In the Middletown Springs case, Thomas not only touted his Morristown credentials, but asserted he is the state’s only statutorily appointed planning director.
“I am without peer in Vermont within my profession,” he testified to the Vermont Public Service Board.
This summer, Thomas offered to rewrite Lyndon’s flood zone bylaws on behalf of a longtime friend.
This week, Thomas downplayed his side work — “I probably average about 20 hours a year (not per month) doing consulting work,” he said in an email Tuesday — but didn’t identify any other clients.
He did answer an email question about conflicts of interest — what if, for instance, the client he represented in Lyndon or the Valsangiacomo law firm had a project in Morristown?
“I have never taken on any consulting work that involves the town, specifically to avoid a conflict of interest. I have never even accepted consulting work inside Lamoille County to avoid even the appearance of a conflict of interest,” he wrote.
He added, “In the very unlikely event that VDM, or another party that I have worked with, is working on a proposed development in Morrisville, I will consult with the town administrator and, if necessary, recuse myself from the proceedings.”
He wrote that he has told Lindley about any consulting work he has done, and “has been cleared ahead of time in each instance.”
But none of that was done in writing, as required — until last week — by Morristown’s personnel policy.
Thomas wasn’t just bound by Morristown’s personnel policy —the American Institute of Certified Planners, to which Thomas belongs, lists written disclosure of side work among its rules of conduct.
The Institute’s rule reads: “We shall not, as salaried employees, undertake other employment in planning or a related profession, whether or not for pay, without having made full written disclosure to the employer who furnishes our salary and having received subsequent written permission to undertake additional employment, unless our employer has a written policy which expressly dispenses with a need to obtain such consent.”
Failure to abide by the Institute’s rules of conduct could lead to sanctions, including the loss of institute certification.
No letters required
Lindley said other town employees have second jobs, but he’s never made any of them comply with the personnel policy and submit letters of intent, either.
“Everybody at the department head level has come and told me that they’re doing it, which is the right thing to do,” Lindley said. “I don’t think we’ve ever really found a conflict of interest."
The town adopted a conflict of interest policy this year, but it applies only to elected and appointed officials, not paid employees of the town.
According to Lindley, the personnel policy doesn’t apply to employees who are part of collective bargaining groups, which includes highway, police, fire and rescue employees.
“It’s really bad policy, because it’s nothing we’ve ever looked for,” Lindley said in late October, but didn’t say why requiring something in writing is “bad policy.”
Added Beeman in an email Monday, “We set the policies and we can change them as we see fit.”
However, Beeman acknowledged earlier that not requiring Thomas to file a letter of intent was “definitely against the policy, and I guess that’s bad on Dan’s part.”
At last week’s select board meeting, Lindley told the board he didn’t even apply the policy to himself.
“I’ll be the first to say that, even in my position here, I’ve worked at outside jobs before,” he said. “I’ve told the board verbally that I’m doing it, but I’ve never done it in writing.”