Ellis goes to court

Hooksett Editor — Thu, 17 May 2007 14:32:00 GMT

BY NICHOLAS BROWN

A state Superior Court judge ruled that Epsom selectmen can’t fire Road Agent Gordon Ellis until the court decides on Ellis’ claims that he was unjustly fired by selectmen last year.

At a Thursday, May 10, hearing, Judge Carol Ann Conboy also ordered Ellis and selectmen to meet for a mediation, and urged both sides participate in “good faith.”

“That will go nowhere,” said Selectman John Klose, who said one of the reasons he ran for selectman was because he didn’t like the previous board’s treatment of Ellis. “This will just end up back in court.”

Ellis was handily elected to the road agent post – for the third time – in 2007, but is looking to recoup lost wages and attorney’s fees. His attorney, Lee Nyquist, also said Ellis seeks an official reinstatement for the time he was fired so the 60- year-old doesn’t lose five years toward his pension benefits.

Last October, selectmen – three of whom are still on the board – unanimously voted to fire Ellis for four charges related to his job performance.

The charges were that Ellis failed to get selectmen’s signatures for a work contract; that he allowed bridge work to commence without having the required DES permits in hand; that he failed to give selectmen and the town’s Road Advisory Committee, known as RAC, work schedules; and that he failed to submit a timely budget to the RAC.

In court filings, the town’s attorney, Catherine Costanzo, has supported the four charges as legitimate causes for Ellis’ dismissal.

“The facts establish that (Ellis) conducted his work in a negligent and intentionally uncooperative fashion,” Costanzo wrote in response to Ellis’ suit.

The town claims Ellis “both neglectfully and intentionally failed to carry out his instructions and duties,” according to court papers.

Meanwhile, Nyquist has argued that the charges are part of a “malignant plan” by selectmen to remove Ellis and that “minor and isolated acts and omissions ... amount to minutiae,” according to court filings.

Nyquist also said selectmen have engaged in numerous procedural errors since firing Ellis, in what he describes in a bench memorandum requesting injunctive relief as a “sad tale.”

In November, selectmen agreed to Ellis’ request to hold a public appeal hearing. At that hearing – which took place in the town’s fire station since nearly 200 people attended – Ellis and two other residents gave testimony on his behalf.

Selectmen didn’t testify during the meeting, and former Selectman Mary Frambach described the board merely as a fact-finding panel.

Weeks later, despite objections from Nyquist and Ellis, the board ruled on Ellis’ appeal in a nonpublic session that pushed about 75 eager residents out of the town hall chambers. Out of the public’s view, the board unanimously upheld the firing.

Nyquist claims the “evidence” used to justify the firing came from Selectmen Don Weaver and Bob McKechnie – both one-time members of the RAC – and neither of whom shared their information in public sessions.

“The path that the (board of selectmen) took down the road to terminating Mr. Ellis was one of one violation after another,” Nyquist said. “It is appropriate that the ultimate violation was presenting secret evidence in secret session to form the basis of whatever support there might be for the termination of Mr. Ellis.”

Selectmen claim, however, that their treatment of Ellis after his firing was fair, especially considering Ellis wasn’t legally afforded any public appeal hearing at all, said Costanzo.

“(Ellis) has complained vociferously about a whole host of supposed procedural errors in a hearing to which he had no legal entitlement in the first place,” Costanzo wrote.

The two sides are also in dispute about what evidence – including local newspaper reports – should be admitted into Ellis’ case.

Costanzo said Ellis has waged a public relations campaign and used the court to engage in political “mudslinging” for “what should be a simple and sober application of the law to the facts.”

A Superior Court hearing is scheduled for Sept. 18, after the two sides enter into their court-ordered mediation. Conboy said the town, in the meantime, if selectmen find cause, has the right to seek relief from her order that they don’t try to fire Ellis.

Nyquist said he’s not aware that selectmen are currently looking to discipline or fire his client.

But, he said, “History has taught us we must be ever-vigilant.”

Epsom road agent sues selectmen

Hooksett Editor — Thu, 01 Feb 2007 20:34:00 GMT

BY NICHOLAS BROWN

Epsom’s fired road agent, Gordon Ellis, is firing back with a lawsuit alleging selectmen, “with a predetermined plan and with malice,” contrived the four charges that led to his firing.

The suit, filed in Superior Court in mid-January by Ellis’ attorney, Lee Nyquist, also claims selectmen had no right to fire Ellis since he was an elected official, not an appointed one.

“Mr. Ellis has a vested and expected liberty and property right to continue in his elected office for his full term in office and is subject to judgment by the people at the next town election,” the suit claims.

Selectmen fired Ellis on Oct. 30 after claiming that he failed to heed written and verbal warnings about his job performance as head of the highway department. Selectmen specifically claim Ellis failed to obtain selectmen’s signatures before proceeding with some contracted road work, failed to get proper permits for some bridge work, consistently failed to provide selectmen with weekly work schedules and failed to submit a timely budget to the town’s volunteer Road Advisory Committee.

Three of the five current selectmen have been on the Road Advisory Committee within the last year.

Ellis appealed his firing, and was twice supported by hordes of residents at public hearings before selectmen upheld the four charges, and Ellis’ termination, during a Dec. 19 deliberation out of the public’s view. That deliberation followed a November public attended by nearly 200 people, many of whom cheered Ellis and jeered selectmen, whom cochairman Mary Frambach then described as a “fact-finding” panel. Ellis’ suit repeatedly alleges the nonpublic deliberations, and the temporary sealing of those nonpublic meeting minutes, were in violation of the Right to Know Law.

The suit also claims selectmen harbored prejudice against Ellis throughout the appeal process.

“There was an actual conflict of interest for the selectmen to serve as prosecutor, fact finder and judge,” Nyquist wrote. When interviewed, Nyquist said, “I think the entire proceeding was infected with conflict of interest and bias.”

Ellis, who was elected road agent in 2003 and again in 2005, said he plans to run for road agent again this year.

Ellis seems to have some support in his rift with selectmen. Six warrant articles, all submitted as citizen petitions, up for discussion at this year’s annual Town Meeting, would either alter the makeup of the current board of selectmen or ostensibly diminish the board’s authority. One article asks whether to give department heads authority to manage department budgets based on Town Meeting results. Another article would strip the selectmen’s authority to draw from a road reconstruction fund, and give that authority to the road agent.

Three warrant articles call for the removal of the board’s incumbents: Co-chairman Joni Kitson, Peter Bosiak and Bob McKechnie.

Kitson had nothing to say about matters related to Ellis.

“I’m not going to comment on that lawsuit whatsoever,” she said.

A hearing on Ellis’ lawsuit is scheduled for Monday, Feb. 5, at Merrimack Superior Court.

Epsom News : Gordon Ellis

Ellis goes to court

Epsom road agent sues selectmen