I.                   CALL TO ORDER

Mayor Rose calls the meeting to order at 7:02PM.

II.                SALUTE TO THE FLAG

III.             HEARING

A.    Hearing in public regarding removal of Mr. Richard Kirby as City Manager pursuant to City Charter Section 2-11 as requested by Mr. Kirby on August 23, 2016. 

Acting City Manager Chapman discusses the reason for the outside legal counsel presiding over the hearing due to a potential conflict with members of the Law Department.  The outside counsel is Bill Dolan who is present on behalf of Donahue and Barrett law firm.  The hearing is held pursuant to 2-11 of the East Providence City Charter. The RI Supreme Court provided case law as located in Renoylds v Lamb. It informs the way in which this public hearing that has been requested and is to be conducted. The court noted 2-11 only provides for a hearing if the manager requests it. Mr. Dolan outlines how the public hearing will proceed:

First members wishing to speak would be chosen by a lottery draw, limited to 10 and limited to 3 minutes each. He will then present in some level of detail the facts set forth in the preliminary resolution with respect to specific documents to review.  After this he will turn over the floor to Mr. Kirby and Mr. Wistow and they will be limited to 30 minutes.  There is no language from the Court which even allows for this but they wanted to fair to those wishing to speak and although there is no language in the ruling from the Court entitling Mr. Kirby to legal counsel they have decided to allow this. At the conclusion the Council may wish to consider what they want to do for the next steps.

Mr. Wistow rose and argued there has been 50 years of case law since Reynolds vs Lamb and also referenced the Whistle Blower Act. 

Assistant Mayor Cunha asked if they can allow Mr. Wistow to speak longer than 30 minutes. 

Mr. Dolan stated that the Council may consider that or any changes they wish to consider provided that they vote.  

Councilman Britto expressed frustration that the process was not brought to the rest of the council and that the tax payers are paying for this.  Adding that he would like to allow the Mr.

Kirby’s counsel to have more than 30 minutes and wants to make this motion including for anyone in the audience who wishes to speak no matter how many and for as long as they want.  Assistant Mayor Cunha seconded this motion.

The motion is further clarified as to amend what the legal counsel (City, Mr. Dolan) said and to have any members of the public come up and speak with a limit to 5 minutes each and for the legal counsel for Mr. Kirby to have as much time as needed, the motion is made by Councilman Britto, seconded by Assistant Mayor Cunha and on a roll call vote it is unanimous.   

Public Statements:

Steve Gianlorezo states he would like to see a conclusion and a stop to the bickering and for all to work it out.

Tom Riley states this is an effort to choke off discussion.

Thomas Andrew Ciavola states he is not supportive of Mr. Kirby as he was cited last year for violations on his property and Mr. Kirby entered his property and discussed concerns regarding Mr. Ciavola’s mental health.   He added that he had to throw Mr. Kirby off his property.

Bob Clarkin stated there are two people who are leaving this Council who are going to pass on any problems.

Patrick McKenna stated that it seems fishy with the Human Resource Director and asked if it is cost effective.

John Braga stated he is in support of Mr. Kirby and this is just spending money and some of the Council members are lame ducks and they should let the next Council take care of it.

Joe Winalton asked how it can be allowed that the Mayor gets a vote when he is under an Ethics Commission complaint by the person who this hearing is for.

Rick Lawson stated that everyone is torn apart and he was hoping it would be deferred to the next Council.  Mr. Lawson added positive words about Councilwoman Capobianco and stated that he has known her for many years and she is not controlled by anyone and he trusts she has her reasons.   

Public Comment ended and Mr. Dolan stated that at this point he would go through the facts set forth in the preliminary resolution.  He handed binders out to each Council member to follow along as well as one for Mr. Wistow.

Mr. Dolan discussed the public hearing as required by Charter 2-11 and entered the Docket as exhibit A. He went through the past history of the removal of Mr. Kirby and the meeting dates of August 23rd and September 14^th.   He reviewed Mr. Kirby’s request to move the meeting to September 16^th and notice was provided as Exhibit B.  He discussed the nature of the charges were discussed.  He reminded the Council that this is a public hearing under 2-11 of the Charter as interpreted by the RI Supreme Court it is not a judicial proceeding it is simply a public hearing.  The subject is not permitted to have counsel however they are allowing this but it is not like a courtroom and he cannot call witnesses.  Mr. Dolan went through each charge in detail noting that detail could not be issued on the first, second and seventh charge as it can be seen to affect the liability of these claims.  He stated the cost the City has incurred in defending this case is quite substantial. The allegation that Mr. Kirby failed to investigate the second charge incurred $150,000 cost to date.  Regarding the 7^th charge Mr. Dolan offered the quote from Channel 10 news on 2/2/16 and reads the quote. On the 4th charge violating the City Charter hiring outside legal counsel at City expense he referred the Council to an engagement letter to Hinckley Allen and Schneider.  Through Robert Flanders they hired 2 attorneys to deal with Ms. Waterbury’s claim at $520 and $800 an hour without the consents of the Solicitor which has been the custom and practice for many years.

Assistant Mayor Cunha asked if this was not the same thing happening today, Mr. Chapman hiring Mr. Dolan at the rate of $175 an hour.

Councilman Britto questioned this as well.

Mr. Chapman stated there was no cap by Hinckley and Allen.

Mr. Dolan continued with the 8th charge of failure to abide by the hiring resolution of former City Manager Paul Lemont’s unused vacation time where paragraph 3 called for no benefits to be paid.

Assistant Mayor Cunha stated that per the City Charter these are allowed after a year.

Mr. Chapman stated that as he understands these payments were made by an arrangement between the two.  The hiring resolution of Mr. Kirby his also covers this.

Mr. Dolan discussed the fact that Mr. Kirby continued to engage Mr. Lemont well after Ms. Waterbury’s complaints exposing the City to further damages.  He discussed the 5th charge which is the waiver of taxes and penalties to King Phillip.  The waiver is a violation of State law 44-5-8.1 and submits this as exhibit G.  

Assistant Mayor Cunha stated these are all questions and it is his personal opinion that all items, that if Mr. Kirby was doing them and Council didn't agree as with any other business or corporate structure they would sit down and talk about them and come to a solution.

Councilman Britto asked where all this information was at the time Mr. Kirby was released or suspended.  

Mr. Dolan responded that each of the charges are in the preliminary resolution. Adding the counsel, the legal fees and expenses resulting from the Waterbury case are in excess of $150,000.

Councilman Britto stated but tonight won't stop this either way so why do we need legal representation.  This should have been brought to the public’s attention to put their mind at ease.

Councilman Conley asked who suspended her with pay?

Councilman Britto stated Mr. Kirby.

Mayor Rose stated a judge ruled and Mr. Kirby put her back on immediate suspension.

At this point, Mr. Wistow speaks on behalf of his client Richard Kirby.

He noted that he felt Mr. Dolan was acting as a prosecutor and not giving good advice.  He added the Waterbury case absolutely will be used.  He noted the case law cited is 50 years old.  He made notation of the Whistle Blowers Act.

He added that he believes this hearing to be made up items, and fabricated items as a retaliatory nature because of a complaint against Mr. Rose by Mr. Kirby to the Ethics Commission. He passes out paperwork from this complaint.  He states this is gross corruption and an attempt to fraud.

Mr. Dolan states that is an allegation. It is an allegation and there have been no findings in that case.

Mr. Wistow argues this was a whistle blower step by his client.  He submits several items as part of the record including a July 29th resolution posted for a hearing on August 1st which was removed. He also submits an August 11, 2016 Council meeting which gave a sentence first and a trial later.  One of the issues tonight was the fact that he was handed a little book containing a series of documents with barely an opportunity to read them. He notes when he first got involved in the case several days ago he wrote an email regarding a file left on a conference room table and requested a copy of that file.  Mr. Dolan responded the following Monday that he had asked the client for these and hoped to get these to him today and that was it. He adds that he believes that Mr. Kirby has been singled out as a whistle blower against the City of East Providence.  There are individuals who will have liability to Mr. Kirby apart from the City. The whistle blower also protects people who make complaints to the Ethics Commission and that is exactly why Mr. Kirby is being retaliated against.  He asks the City not to destroy email and or correspondence.  Reynolds vs lamb was regarding a City Manager who didn't live in the City and there was a request that he be a resident of the City.  There have been many public employee litigation matters since then.  Mr. Wistow discusses and passes out the Ragosta Report and the Lever Report. 

Assistant Mayor Cunha stated there was supposed to be a salary cap regarding the Ragosta Report which the Council agreed on which is now up to $60,000. 

Assistant Mayor Cunha made a motion that no one is to destroy any emails or documentation from this meeting, the motion is seconded by Councilwoman Capobianco and on a roll call vote it is unanimous.  

A motion to allow Richard Kirby to speak is made by Assistant Mayor Cunha, seconded by Councilwoman Capobianco and on a roll call vote it is unanimous.

Richard Kirby speaks stating the actions are a farce.  Adding Mr. Dolan is wrong on the law, state law and city ordinance state that a person is entitled to vacation and balance of after one year and that the resolution passed by the City Council is contrary to that.  The City Council asked him to please make the transition with Mr. Lemont smooth and to keep him on as a consultant as he could be helpful.  Mr. Kirby states he did this and he gave Mr. Lemont 3 week’s vacation balance and $1000 a week as a consultant fee until the end of the year.

Regarding the repeated failure to return phone calls and emails he printed out all the emails he has handled for Council.  The one reference to Councilwoman Capobianco he notes he issued an apology email. 

Once the preliminary resolution was passed he asked for some of his personal items back.  Mr. Chapman was on vacation.  When Mr. Chapman returned Mr. Kirby was allowed to collect these which had been removed from a closet and left in boxes on the conference room table.  He explains he took copious notes in his tenure as City Manager and kept a personal journal with information on appointments and information on family members.  While that personal journal was in the boxes so was a red folder which contained an identical copy and he was told by Nikki Santiago, the City Manager’s Assistant, that Mr. Chapman had been looking for this as he had instructed the copy be made. 

He states that the move to terminate him is completely political and retaliatory.  He worked for 10 months and is here to defend the work he did and the people he worked with.  This is retaliatory because he filed an ethics complaint and a police report against the Mayor. 

He notes that Senator DaPonte published a letter in the paper stating that recommending him was the worst mistake of his career but in that letter he doesn’t mention all the facts about the Waterbury case.  He reads the judge’s ruling and states that is exactly what he was doing when he was let go. 

He discusses the tax sale removals and explains that these were in the best interest of the City and the businesses. 

He discusses 10 King Phillip Road and reminds the Council that they passed a zoning law changing it for the Live Work Space Development and that this was not a tax but a fee on a water line that hadn’t been used in years.  He added he apologizes if this was wrong but he felt as though he had the Council’s confidence to work for a better East Providence. 

He closes adding that if there are 3 votes there is not much he can do or say other than the charges are nothing more than retaliatory.

Assistant Mayor Cunha makes a motion to reinstate Mr. Kirby at the same pay as before and with the same privileges, this is Seconded by Councilman Britto and on a roll call vote the motion fails 3-2 with Councilwoman Capobianco, Councilman Conley and Mayor Rose voting Nay.

Councilman Britto stated that despite all the evidence and all the information provided, in a positive way, obviously that had nothing to do with it.  The vote is being done regardless of what was said.  This is unfortunate for the City to be in this position again and more tax dollars will be spent now and in the future because of it.  Politics supersede what was presented today.  All the information provided where Mr. Kirby saved the City money and it is a clear case as politics at its best.

A motion to accept the preliminary resolution from the August 11, 2016 Council Meeting is made by Councilwoman Capobianco, seconded by Councilman Conley and on a roll call vote Councilman Conley states: This is a difficult decision.  Mr. Kirby worked honorably for the City of East Providence but at the end of the day the Council needs to make a decision based on performance.  The Waterbury case was poorly handled.  Mr. Kirby ignored the advice of Mr. Chapman and Mr. Desisto to handle things with progressive discipline.  The Ragosta Report was conducted at the advice of Mr. Desisto because everyone else was conflicted out.   Certain behavior of certain City employees was deplorable and Mr. Kirby supervised and took no action and this is very problematic.  Regarding Agawam Hunt there is a series of checks and balances and policies and procedures that must be followed.   He closes stating that constituents of his are still trying to receive tax relief after months regarding assessments and deals are being made with country clubs.  Not one of these alone were cause for firing but when added up together he notes he was just not comfortable with making a long term commitment to Mr. Kirby.  the motion passes 3-2 with Councilman Britto and Assistant Mayor Cunha voting Nay.

The City Clerk is asked to read the vote. 

B.     Consideration of Final Resolution regarding Item A as provided under City Charter Section 2-11.

IV.             ADJOURNMENT

A motion to Adjourn is made by Councilman Conley, seconded by Councilwoman Capobianco and it is unanimous. 

Approved By Council:  October 4, 2016

Attest:  _______________