Portsmouth City Manager Derek K. Allen has a trait that is obvious to those who know him best and can drive people crazy if they don’t. He is detail oriented. Ask him a multi-point question and he will break it down one point at a time and answer it, to wit a recent exchange of emails with Portsmouth Mayor and Fourth Ward Councilman Jim Kalb.
“I had recently asked you about vacant positions and if and how they were being filled. You were also asked about not filling or delayed filling of those positions and if there was an agreement or a ‘memorandum of understanding’, if this was the case,” Kalb said in his email to Allen. “I have recently heard from a couple of long time employees that some positions that are being filled are being done in violation of the bargaining agreement. I was told that the vacancies were not posted to offer existing employees a shot at the available position.”
Kalb asked Allen to clarify whether the city is following contract language and if they are not doing so, Kalb asked if there is an agreement or understanding with the unions?
“I also thought I understood you to say that the filling of the cemetery positions was handled properly and there was no problem, but then see that we are heading to arbitration over that matter,” Kalb said. “Please explain.”
Allen recalls in his email that he was asked about the vacant positions and how they were being filled at the City Council meeting, and, at the same time says he remembers answering the question directly at the meeting, but –
” if you feel that I did not answer your question sufficiently, please do not hesitate to come see me so I can fully answer your questions,” Allen said..
“Either you or Second Ward Councilwomen Jo Ann Aeh asked me at the meeting about a ‘Memorandum of Understanding.’ If I remember correctly Jo Ann Aeh thought that I was violating Article 15 of the AFSCME collective bargaining agreement. Please correct me if I am wrong about who brought it up,” Allen said in his response. “Article 15 has to do with promotions and not hiring entry level positions. As a former full-time mayor dealing with the unions I thought you would have immediately recognized that this was in error. There is not a Memorandum of Understanding nor is it necessary to have one to fill positions.”
Allen told Kalb there is no minimum manning in the AFSCME bargaining units.
“Since I felt that there would be doubt in an answer coming from me as the city manager, I asked our personnel attorney Ben Albrecht for a legal opinion,” Allen said.
He then called Kalb’s attention to a long and detailed legal opinion from Albrecht regarding the AFSCME labor agreement. Allen said if Kalb wants to discuss it, he (Allen) is available to discuss it. In his opinion, Albrecht said – “pursuant to Article 10, Grievance Procedure, ‘a grievance is defined as an allegation that the terms of this Agreement have been violated.’ Consequently, the Union may not believe that a violation of the Agreement has occurred. Article 15 which was referenced by City Council is titled Job Postings and Promotions, not entry-level positions often referred to as original appointments. Consequently, unless the 16 vacant positions are promoted positions, the City can argue that the terms of the collective bargaining agreement do not apply as Article 15 relates to promotions.”
Allen said he has delayed the filling of positions for financial reasons due to the complaints from employees about being shorthanded, specifically in Water Distribution.
“I agreed to hire two for water and one for sanitation to replace an employee that transferred out to Water Distribution,” Allen said. “We also hired one person for the water plant and another transferred in from another department (we had one retirement and two terminations). Even with those two new employees the water plant is still down a person.”
Allen said one person transferred from the Utility Office to the water plant and one employee did not successfully complete probation at the Utility Office so two were hired for the utility office. He again referenced that he believes that was reported in his written city manager’s report.
“If you believe that I am required to fill every position can you please educate me on the basis of this opinion,” Allen added. “Unfortunately, I do not know which ‘long time employees’ you spoke with, but is that not an administrative matter and not a legislative matter? Do you wish to tell me who is complaining? I can assure you the labor agreement is not being violated. Please rest assured that I am following contract language in all labor agreements.”
Allen goes on to say the cemetery position was handled properly and that he does not believe there is a problem.
“Again, as a former full-time mayor you surely recognize that even if a situation is handled properly the union still has the right to grieve and arbitrate an issue. I am confident in the city’s position. For your convenience I have attached both the city’s brief as well as the union’s brief on the arbitration,” Allen asked. “How did you handle informing city council regarding arbitration cases when you were mayor? I am just wondering what your expectations are regarding this matter. Communication regarding this would be helpful, I would love to have a dialogue with you about this. Maybe you could come and visit sometime.”
In his correspondence, Kalb asked about the demolition of the 617 Second St. property.
“You stated that you thought that the proper permits were obtained and that proper procedures were followed. Is that still your stance? I believe that we have determined that proper procedure was not followed because the demolition didn’t go before the Design and Review Board,” Kalb stated. “Have you checked to see if a permit was issued? If not, will you check? If a permit was not issued and procedure wasn’t followed, what is your next plan of action for penalties and how do we prevent this from happening again? This is not the first time something like this has happened. Do we need to revise the penalties and enforcement for issues like this? I have people awaiting answers about this incident.”
Regarding 617 2nd Street, Allen said the city does need a city engineer. He said, as things stand now, the city has a department with no department head. The applicant should have gone through the Downtown Design Review Board (DDRB) before being issued a demolition permit.
“I spoke with Kirk Donges and it did not go through DDRB. He did not know about the demo until the building was on the ground. I was unaware that the building was being razed. Staff is unaware of the need for building demolitions to go through the DDRB,” Allen said. “I stated permits were issued by the Health Department on Feb. 7, 2017 and by the Engineering Department shortly thereafter. That is what I spoke about at the City Council meeting. I have attached the permits to this email as proof.”
The addressed in the permits is 619 Second St. It is possible it is just a typographical error because the permit deals with the same people with the right subject, demolition of the property.
Portsmouth Codified Ordinances 1317.04 (b) states that the Second Street buildings need a certificate of appropriateness including environmental changes. Environmental changes (demolition) under 1317.08 cannot be issued unless they comply with 1317.11 which states a professional engineer (P.E.) approves the demolition. Allen said a P.E. is what the city wants for a city engineer but they don’t have one. He said the staff in Engineering, a residential building inspector and a secretary neither know and cannot be expected to handle issues outside the scope of their normal job duties.
“My response to your statement of penalties and a response to the violator is – that is a question for the City Solicitor,” Allen said.
Allen concluded that since the issues were raised in a public meeting with the (Daily Times) newspaper there, he copied the newspapers so there would be no question that he responded to Kalb’s statements and that he is able to demonstrate that he does know what he is doing as city manager.
“I’m sure you won’t have any issue with that since you raised it at a public meeting instead of coming in and talking to me about this,” Allen said. “I hope this answers all your questions. Please also consider this a timely response. You mentioned you would like a response ASAP. May I ask what the urgency? It sure would be nice for you to come in and have a conversation with me regarding these matters instead of sending an email.”
Reach Frank Lewis at 740-353-3101, ext. 1928, or on Twitter @franklewis.