by Frank Schroth

On April 13, 2011, the Board of Selectmen (BOS) sent a letter to Chief Wells informing him that they had retained former Attorney General Scott Harshbarger, Senior Counsel at Proskauer Rose LLP, to review 4 matters involving the Milton Police Department. Mr. Harshbarger submitted a memo reporting his findings on June 10, 2011. Last Thursday, the Selectmen voted in executive session to release the resulting report and related documents to the public. The following summary of the issues involved and Mr. Harshbarger’s findings are based on those documents.

The Harshbarger Report concerns itself with 4 specific matters that revolved around a difference of opinion between the Chief of Police and Town Administrator, and by extension, the Board of Selectmen, on the boundaries of the Chief’s authority and whether he had exceeded them on these occasions. All the matters concerned an issue of authority. As Harshbarger notes in the opening of his report, ” this ‘authority’ issue is the issue and, since the ‘devil is in the details’ needs explicit clarification by the BOS.” (underline is Harhbarger’s)

In researching the 4 issues identified by the Selectmen, Harshbarger met with Town Administrator Kevin Mearn, Chief of Police Richard Wells, and the Chief’s attorney Douglas Louison and reviewed related materials. The 4 specific issues identified in a memo from the Board of Selectmen are:

Harshbarger identified the issue regarding compensatory time as the most serious issue. In October of 2009, the Chief negotiated with 2 police unions. Only the BOS can negotiate and authorize changes to a collective bargaining agreement. The Selectmen ratified the Chief’s action but “made it clear henceforth any such changes needed to be approved first by the BOS, and the Chief could not proceed to negotiate or change terms and conditions unilaterally.” He needed to abide by this even if he felt such negotiations essential to managing his department. The Chief did express that to the Town Administrator in 2009.

Regarding the vehicle given to the Quincy Police Department, it was given because the Chief “felt Milton has benefited greatly from Quincy’s valuable investigative experience.” Examples include assistance with the shots fired on Belvoir Road in 2009, assistance on several occasions with lockdowns at Milton schools, and help with enhancing videos related to the Tisdale incident and a homicide investigation in 2008. The vehicle was labeled as “junked,” although the report notes that it had recently received $10,000 in repairs and was in use by the Quincy force.

The Zodiac boat was acquired “through State Police LEA/DOD surplus property process without cost to the town, according to the Chief, except for training,”  The TA only learned about the acquisition after the fact and pointed to certain memos that “demonstrate that the Chief was ‘excluding theTA and BOS from important and relevant staffing decisions. . . the BOS had not authorized a marine unit.'” The Chief believed he had the operational authority to acquire the asset but agreed the BOS approval was needed to implement a full Marine Unit program.

Whether or not these were useful decisions by the Chief – or whether he was required by policy or rules to disclose in advance his plans to exercise his discretion – is for you to decide and evaluate. I found no specific rules or regulations were violated by the Chief, and his defense that these decisions by custom and practice are left to the Chief seems plausible. On the other hand, the view of the TA that the Chief released an asset with appropriate approvals and acquired equipment that, if used, exposed the town to risk and/or liability , is surely relevant. . . regular communication about the activity and actions of the Chief to the BOS wold be useful if only to alleviate concerns about issues like this.

The other boat was also a surplus property acquisition at no cost to department, but may be worth $100K. It is sitting in the MPD parking lot. The report notes “the question relates to his authority to make operational decisions as opposed to needing formal BOS approval. On the one hand, the Chief’s creativity and innovative style is evident; on the other, the BOS may wonder what would occur if all department heads operated with such creativity and innovation, outside the established town oversight and approval process.”

The report concludes:

The bottom line is that more regular communication between the BOS, the TA and the Chief could have clarified the facts and circumstances of each of the Chief’s actions, expeditiously and contemporaneously, and avoided much of the current speculation and potential controversy. In any event, the BOS has a responsibility to resolve the process and authority issues directly with the Chief.

The Selectmen in a vote of 2-1-0 (Mr. Shields voting no) recently approved a one year contract with the Chief that reflected a 2% increase in salary and runs until June 30, 2012.