October 28, 2013. Hallsmith's 8-page memo responds to and critiques Fraser's assessments of the controversy. She affirms that he is her boss. She suggests that he has defamed her. She lays out specific details of the conflicts of interest on the planning commission. And she lists seven ways she sees that her "rights as an employee and a citizen have been violated," including denial of due process of law by the City.
October 31, 2013. Without making any formal inquiry and without holding any meeting, the Montpelier city council issues a statement of "unanimous and unequivocal support" for Fraser and Hollar in "this personnel matter." The statement suggests that Hollar has been all but uninvolved.
N0vember 6, 2013. City manager Fraser places Hallsmith on "immediate paid administrative leave." He says "there is just cause to support your dismissal." He denies that his action has anything to do with public banking. In the course of four angry pages, Fraser makes many rambling accusations about events and motives, but he does not make a coherent case for "justifiable cause" for her dismissal. "You have made it impossible to perform your work effectively for the City," Fraser writes, then offers to meet with her before making "a final decision based on the information I currently possess." Then he directs her to turn in her keys. Later that day Hollar issues a statement saying, "I have had very little to do with this matter." The next day Fraser publishes a misleading and dishonest op ed in the local paper defending the mayor and attacking Hallsmith.
Hallsmith accepted the invitation for a meeting, which turned out to be what the City made clear would be a "Loudermill hearing," a designation that is most useful when an employer has already decided to fire an employee. "Loudermill" refers to a 1985 U.S. Supreme Court case (470 U.S. 532) in which the court held that a public employee deserves the minimal protection of an informal, non-evidentiary hearing where she could respond to whatever the employer was calling just cause for firing her. The Loudermill hearing is not a due process hearing, it's a temporary, legal preliminary alternative to a constitutionally valid hearing. "Loudermill" is one of those legal niceties that sounds like protection but is easily abused, usuaally without serious consequence to the employer.
The City says the law is satisfied by the performance of a charade
On November 25, 2013, the City of Montpelier provided Gwen Hallsmith with her Loudermill hearing. It lasted an hour and listening to the tape is a dismal experience. City attorney Bernie Lambek calls it a "due process hearing," which is false. It's not a constitutional, due process hearing in any meaningful sense, as he later makes clear. He says it's a chance for Hallsmith to tell Fraser whatever she wants. Hallsmith and her attorney John Franco make reasonable representations that none of what Fraser has alleged amounts to just cause for termination. They also try to engage Fraser with explanations and suggestions. Fraser does not engage, he does not argue, he quibbles over a few trivial details. Assistant city manager Jessie Baker is there but never speaks, except to identify herself. Several times Hallsmith explains how she sought guidance and help with the City's problems, but never got help. No one contradicts her. There is no smoking gun for "justifiable cause." At the end, attorney Lambek says he doesn't know when Fraser will make a decision. Lambek advises Hallsmith and Franco that if they want to make a proposal for going forward constructively, they should do so soon. Franco says they want to do something collaborative, something that will help people work together. Lambek talks about the weather. Fraser says nothing. He does not invite, or make, any conciliatory offering, he does not say he will fire Hallsmith the next day.
The Loudermill hearing was an empty legal fraud, not a meaningful opportunity to assess any of the mostly non-specific allegations against Hallsmith. For most of the final 15 minutes of the meeting, she alone spoke in a quiet, conciliatory manner. The three City officials present responded with silence, except for a couple of quibbles by the city manager. They offered total silence on conciliation. The next day, November 26, without further consideration, Fraser fired his director of planning.
After Thanksgiving, Hallsmith, believing it was her right, asked for a formal, public "grievance hearing," in which the parties could present evidence and question witnesses before a neutral presiding officer. Attorney Franco had made all this clear to the City in a five-page legal memo before November 25, when he reminded the City of Hallsmith's right to due process of law under the Fourteenth Amendment of the U.S. Constitution. Franco put the City on notice that, among other things, in his legal opinion, "Ms. Hallsmith cannot under any circumstances be removed, without more, following today's 'hearing' [as per Loudermill]."
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