May 22, 2018
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Sheriff disagrees with attorney

By Diana Graettinger

MACHIAS, Maine — A disagreement between the sheriff and the Washington County manager over how much information the sheriff can disclose in his monthly reports about personnel disciplinary actions was made public Wednesday.

Sheriff Donnie Smith took issue with a copy of a memo he received Wednesday from the county’s attorney that said Smith should not reveal disciplinary actions in the reports he releases monthly to the news media and others.

In response to the county attorney’s memo, the sheriff fired off an e-mail to the media and others defending the reports, saying he had run for office in 2006 on a platform of transparency and the public’s right to know.

County Manager Linda Pagels-Wentworth said Wednesday she applauded the sheriff’s belief in transparency, but disagreed that details of personnel matters should be made public in the reports.

Pagels-Wentworth, who also serves as the county’s human resources director, had asked for direction about an employee’s privacy rights from county attorney Peter Marchesi.

In his Oct. 27 memo to the county, Marchesi wrote, “I have reviewed the material that you forwarded to me in connection with the sheriff’s [September] monthly report. I concur that personnel references should not be made to the media or otherwise made public. … As you are aware, as a general rule, matters relating to allegations of misconduct and investigations thereof are not subject to public disclosure, with the exception of the final written decision following an investigation.”

Asked what particular issue the attorney was referring to, Smith said, “I just don’t know. I don’t know if it was over the last firing of an individual; I guess he wasn’t fired, letting go of an individual … on an action I had taken, I don’t know.”

However, Pagels-Wentworth confirmed Wednesday night that the report the attorney was referring to involved the termination of Sgt. Rodney Merritt.

According to Smith, Merritt was terminated because he failed to report to work for 58 days and falsified his time sheets.

Pagels-Wentworth, however, in a final report on the matter, said Merritt had a medical condition and was unable to perform his duties. The county manager said Merritt’s record was clean.

In his report, the sheriff disagreed with how the county had handled Merritt’s termination.

Smith disagreed with the characterization that Merritt’s record was clean.

“[The county manager] said a certain individual’s record was clean — that was the furthest thing from the truth; that is wrong. There is stuff I put in [his personnel file], plus other sheriffs have,” Smith said.

Merritt could not be reached for comment Wednesday night.

“The attorney feels I should not be revealing disciplinary actions in my report. They feel [the news media] should receive this by way of the Freedom of Information Act. I totally disagree,” Smith said in his e-mail to the press. “I have said and will continue to say this is a transparent administration and will continue to be. This is one of the reasons I ran for sheriff because I know that many things were covered up and not ever reported. My feeling is that this is public funds and should be public knowledge.”

Smith said he has researched the issue. “I’ve just read that online, but I believe that once discipline is taken that’s public information,” he said.

But Pagels-Wentworth said county personnel had rights and expectations of privacy and after she and Smith disagreed over how much he could reveal in his monthly report, she sought the county attorney’s opinion.

“That is what brought us to where we are today,” she said.

The county manager said the public did have a right to know, but only the final written decision. “It gives you the final ruling, the final statement of fact, not the he said or she said that is part of the process and there is an expectation of privacy in some of that,” she said. “Even when somebody makes a mistake they still have rights and we still have to respect that.”

Smith said that he felt constrained by the attorney’s memo. “I am not questioning the county commission, they have a right to do that. I just wanted you [the news media] to know that things are going to change as quick as next week,” he said, referring to the information he would be releasing about personnel matters. “I might just tell you disciplinary action has been taken but I won’t be telling who so you will have to file with the Freedom of Information Act to get it because that is what the letter said. … I just wanted you guys to know that this wasn’t something that I got up one morning and said ‘well, I am just not going to give it to you any more.’”

Pagels-Wentworth said that no one was trying to muffle the sheriff. “Investigation records are always kept separate from the personnel file until the investigation is complete and then a written summary decision and decision is put into the file if there is merit to the investigation. If it rules in the employee’s favor all of that goes away.”

Marchesi said Wednesday that any legal advice he provided to the county was confidential. “So I can’t speak to the specifics of the situation in Washington County,” he said. “But I can tell you as a general proposition that there is certain information regarding public employees that is subject to public disclosure and certain information by law that is not subject to public disclosure.”

Reading from the law, Marchesi said, “[If] disciplinary action is taken the final written decision relating to that action is not confidential.”

Marchesi said that most public officials agree that transparency is important. “But that does not mean that everything that happens that relates to a particular employee has to be or should be disclosed in the interest of transparency; the countervailing interests are the privacy rights of individual employees.”

Pagels-Wentworth said she anticipates the matter will be placed on next month’s county commissioners’ agenda.


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