East Providence council votes to permanently remove Kirby as manager

Same 3-2 vote as one to initially suspend him from duties

Story By Mike Rego; Photos By Rich Dionne
Posted 9/21/16

EAST PROVIDENCE — As expected the East Providence City Council voted by a slim 3-2 majority during a special public hearing held Wednesday night, Sept. 21, to permanently terminate Richard Kirby from his position as city manager...

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East Providence council votes to permanently remove Kirby as manager

Same 3-2 vote as one to initially suspend him from duties

Posted

EAST PROVIDENCE — As expected the East Providence City Council voted by a slim 3-2 majority during a special public hearing held Wednesday night, Sept. 21, to permanently terminate Richard Kirby from his position as city manager.

And just as the initial vote taken during a similar special session to initially relieve Mr. Kirby of his duties back on August 11 of this year, Councilors Tommy Rose, Tracy Capobianco and Tim Conley voted in the affirmative while their counterparts Helder Cunha and Bobby Britto voted against the move.

Of those is favor, only Mr. Conley, who is up for re-election this term from Ward 4, took the opportunity to explain his vote. He did so, however, among catcalls from the audience such as "you're a puppet" and "come November you're out." It was noted a number of times Mr. Rose and Mrs. Capobianco are not seeking a return to public office this cycle.

Mr. Conley said while not one of the eight charges levied against him was cause for termination, taken as a whole he did not "feel comfortable entering into a long-term commitment with Mr. Kirby."

Mr. Britto, like he was from the outset, was a vocal advocate of retaining Mr. Kirby. He said, "despite all of the evidence, despite all of the information provided" during the hearing his peers on the council were unwilling to change their minds. He said the evening cost taxpayers money and "it's going to cost even more money down the line." He added, "This is a clear case of politics at its best in East Providence."

Without saying his client was planning on engaging the city in a wrongful termination suit, Max Wistow numerous times and in so many words, intimated one was in the offing. He repeatedly referred to Mr. Kirby's actions as that of a "whistleblower," a public employee who has protections under the law. He advised the council he was putting a "litigation hold" on all correspondence pertaining to Mr. Kirby's case and asked them to pass a motion acknowledging this tactic, which the body did.

He said his defense of Mr. Kirby "was very, very simple...All of this is a retaliatory step because Richard Kirby had the temerity to file (an ethics) complaint against Mr. Rose." Later, Mr. Wistow, noting a pair of independent investigations approved by the council, said the gist of the other charges against his client, that he acted improperly in removing former city Human Resources Director Kathleen Waterbury from her position, were also erroneous.

At the conclusion of his some 55-minute presentation on behalf of Mr. Kirby, Mr. Wistow said, "I implore the council, don't get the city more in hock with lawyers. This is going to a very bad place."

It's likely it started there, anyway.

The hearing was plenty contentious almost from the beginning.

Acting City Manager Tim Chapman, who was the subject of countercharges made against him throughout the night by both Messrs. Wistow and Kirby, began the evening by claiming a conflict of interest with his other current position as city solicitor and introduced attorney William Dolan as the city's representation during the hearing.

This immediately drew the ire of Messrs. Cunha and Britto, the latter claiming specifically to having not being notified of the move prior to the proceedings.

Mr. Dolan was challenged almost from the outset of his remarks. He initially wanted to limit the number of speakers from the public to 10 and hold them to a three-minute time limit. The council, however, voted against limiting the amount of speakers and adhered to the five-minute maximum afforded during regular sessions.

A handful of speakers approached the dais, most of them in support of Mr. Kirby. The words "embarrassing" and "stupid," among others, were uttered in regard to the council's action to terminate.

From there, Mr. Dolan went through the eight charges against Mr. Kirby, which led to his being suspended with pay and later terminated. They are as follows, verbatim, as they appeared on the hearing docket:

1. Failure to investigate allegations by a City employee of sexual harassment, retaliation and discrimination pursuant to the City’s Sexual Harassment Policy exposing the City to potential substantial liability.

2. Due to the failure of performing charge #1, unnecessary costs totaling, to date, approximately $150,000.00 of City funds have been appropriated in the termination process of a City employee violating her due process rights.

3. Insubordination for failure to respond to City Council members repeated telephone calls and e-mails.

4. Violating City Charter by hiring outside legal counsel at City expense.

5. Violating Rhode Island state law by waiving interest and/or penalties of taxpayers.

6. Violating Rhode Island state law by removing taxpayers from City tax sale.

7. Failure to take any action to address an alleged violation of the City’s Sexual Harassment Policy.

8. Failure to abide by Hiring Resolution No. 31 by authorizing and allocating the amount of $7,319.55 to former Acting City Manager Paul Lemont in the form of “unused vacation time” when Paragraph #3 of said Resolution called for no benefits to be paid.

Mr. Dolan's presence at the meeting, because of the Mr. Chapman's perceived conflict, was also challenged by Messrs. Cunha and Britto, who both noted Mr. Kirby's rationale for hiring outside counsel in the Waterbury case was for the same reason.

Mr. Dolan also said Mr. Kirby, according to a 1967 State Supreme Court ruling on what he opined was a similar case, was not due legal counsel, however it was agreed in fairness to him it would be allowed with some restrictions.

At that time, Mr. Wistow took the microphone and offered a compelling defense on behalf of Mr. Kirby.

He told those in attendance the ethics complaint his client filed against Mr. Rose stemmed from the latter's personal use of a rented car. When a check Mr. Rose used to pay for the vehicle bounced, the rental company sought payment. Mr. Rose then attempted to bill the city, but a municipal employee brought it Mr. Kirby's attention. He then filed the ethics complaint as well as one with police.

Mr. Wistow called Mr. Rose's actions in the matter "gross corruption" and "outright attempted fraud."

In his opening remarks, Mr. Dolan said nothing discussed at the hearing should be seen as an admission of the city's culpability in the Waterbury case, to which Mr. Wistow scoffed. The latter said, "Of course her attorneys will use it" since it's the key for Mr. Kirby's termination. He continued, "You will see her lawyers say it is an admission by the town (sic). I promise you."

Mr. Wistow then referred to a report filed by Vincent Ragosta, an attorney authorized by the council to investigate the Waterbury matter earlier this year at a cost of some $60,000 before her eventual termination and lawsuit against the city. Mr. Wistow read from the conclusion of the report, which said Ms. Waterbury's claims were based on "uncorroborated evidence or inconsistently described incidents." Mr. Ragosta also wrote, Ms. Waterbury "was not entirely forthcoming or believable."

Also, Mr. Wistow referred to another report, an evaluation of the HR Department in the year prior to Ms. Waterbury's eventual termination. He said the report impunged the director's performance and came to three conclusions. One, would be to retrain department employees at a considerable expense, two would be to put Ms. Waterbury on administrative leave or three terminate her services.

Answering some of the other charges, Mr. Wistow noted an email exchange between former manager Lemont, Ms. Waterbury and Mr. Kirby last fall where Ms. Waterbury signed off money owed to the former. Mr. Wistow said he "would be embarrassed to present" not responding to phone calls or emails of councilors as a charge. In referring to the tax sale charge, Mr. Wistow turned the tables, saying he had evidence Mr. Rose had five properties owned by he or his family canceled in the same manner last year.

Again, in summation, Mr. Wistow said the council was setting the city up to face "a horrendous set of legal fees," adding Mr. Kirby's termination "was nothing but a pretense to punish someone who had the gaul to say stop stealing from the town (sic)."

In reply to Mr. Wistow's defense, Mr. Dolan said "you did not refute any of the charges."

The penultimate act of the night came next when Mr. Wistow said Mr. Kirby wished to speak on his behalf. Mr. Dolan balked, but the council eventually allowed him to do so.

Like his counsel, Mr. Kirby called the proceedings and the actions of the council majority a "farce," "totally political" and "retaliatory."

Mr. Kirby immediately cited both state law and city ordinance to defend the payment to Mr. Lemont, calling Mr. Dolan's reading of the issue a "joke."

Mr. Kirby, as Mr. Wistow did earlier, next implied malfeasance on the part of Mr. Chapman regarding his personal notes while serving as manager. Mr. Kirby said Mr. Chapman made copies of said notes without his knowledge before returning the property to him after he was put on leave.

In defending some of his actions while waving fees associated with a transactions like the one made by the Agawam Hunt Club with Kavanagh's Bakery, Mr. Kirby said he did so to assist both sides, saying Agawam was trying to relieve itself of a mortgage payment while Kavanagh's was expanding its operation.

Ultimately, Mr. Kirby said he was not "begging" for his job back, but wanted the opportunity to "defend the work I did and defend the people I worked with to move the city forward."

He concluded, "There's a saying in politics, if you have the votes, you vote…There's ample evidence of these being specious charges…Vote the way you're going to vote, but don't think you're fooling the residents of East Providence."

To that, Mr. Kirby exited the stage to a standing ovation of the audience, but his and the efforts of Mr. Wistow apparently did nothing to dissuade the majority of the council. In short order, a motion by Mr. Cunha to immediately reinstate Mr. Kirby to his position fell by a 3-2 vote, then the same 3-2 vote by the same councilors was backed supporting Mr. Kirby's final termination.

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