NEW SCOTLAND — The restructuring of the highway department in January brought up long-term complaints by employees of supervisory misconduct, but those who attended the February town board meeting were not allowed to speak. Town officials said that the issues raised are of personnel, not policy.

“It takes a lot to speak up. There’s a lot of shady stuff that goes on there,” James Bess, a former highway department employee, told The Enterprise.

“We follow every letter of the law,” Superintendent Kenneth Guyer responded through The Enterprise.

Harassment and alcohol use

Bess claimed that a recently demoted highway foreman is being harassed. A potato effigy of an employee was hung and allowed to remain, he said. Anonymous writing on a white board was found twice, he said — aimed at an unnamed employee who was directed to use soap and water.

Guyer said that claims of harassment are invalid, and that employee interaction at any workplace involves “joking, there’s ribbing — none of that falls into the legal description of harassment. It’s just joking around.”

“One gentleman came to me and said there was writing,” Guyer said. He said that he erased the words, which reappeared the next day, at which point he erased them, again.

At the next daily meeting, Guyer told The Enterprise, “It was addressed immediately.” The messages on the board stopped, he said.

Guyer said the town has no written policy about harassment.

“It is not anything illegal — it’s not legal harassment. I just attend to it as it comes up,” he said.

The Enterprise asked town attorney Michael Naughton if there were a town policy that covers harassment, and what the town’s process is for addressing similar concerns.

“I generally do not comment on behalf of clients,” Naughton wrote in an email to The Enterprise. “And in matters involving personnel issues, I generally caution clients not to comment due to legal and privacy concerns.”

Councilman William C. Hennessy Jr., the new board liaison with the highway department, said that he was unfamiliar with the issues brought up by Bess, but he referred to them as “a personnel matter” about which he could not comment.

Supervisor Douglas LaGrange, however, told The Enterprise that the town does have a policy about the legal definition of harassment.

“Yes, we do,” LaGrange said.

Across the United States, employees are protected against misconduct based on age, sex, race, religion, marital status, pregnancy, disability, and sexual orientation. The complaints against the highway department “don’t rise to the level of the definition,” LaGrange said.

Additionally, he said, the town has a workplace violence committee that will meet in the next few weeks.

“If you keep drawing the line back,” LaGrange said, “nobody’ll be able to speak to each other. You have a bunch of guys. Eventually, you’re talking about a group of grown-ups and they have to [address their work]. The majority of the guys up there do just that. There’s always joking around and kidding around. It’s part of life.”

Bess told The Enterprise that five of the department’s 15 employees attended the February town board meeting because of “a pattern of a hostile work environment.”

One town employee spoke after the meeting about town officials who like “the sound of their own voice.”

“That’s why the sheriff is out there,” said another of the uncommon presence of an Albany County Sheriff’s deputy at the February board meeting.

Bess told The Enterprise that alcohol use by operators is allowed on the job, and that employees have driven, and flipped, trucks with alcohol levels at .04.

Bess brought up the alcohol incidents at the town board meeting, saying that Guyer had been told an employee smelled of alcohol, but did nothing about it.

“How is that looking out for your employees?” Bess asked.

“This is a town board meeting,” said Naughton. The meeting “is not for open discussion of personnel issues.”

LaGrange told Bess that he could request an executive session with the board.

“If it’s ethics, we have an ethics board,” LaGrange said.

“Everything at the New Scotland Highway Department is handled promptly and by the book,” Guyer told The Enterprise, “especially when we deal with alcohol…There is absolutely no alcohol tolerated at the highway department.”   

“All our drivers are safe. We do have accidents, as anybody does,” he said.

“We had an accident in our yard two weeks ago — very minor,” Guyer continued. “The driver was immediately taken for drug and alcohol testing. He passed. There was no issue.”

In his complaints, Bess provided a photo of an overturned highway truck.

Guyer said that a truck had overturned two years ago at Indian Ledge Road, when it hit an icy corner on the road and slowly tipped over.

“The driver of that truck…[had] absolutely zero alcohol,” Guyer said. “No alcohol at all.”

Civil Service position

Bess told The Enterprise that the restructuring of the department, with the addition of a deputy highway superintendent position and the elimination of a foreman position, violated Civil Service Law because the town did not select a deputy from a Civil Service list of candidates who passed an appropriate exam.  

“There was already a deputy highway superintendent position,” Guyer told The Enterprise. “I used to be the deputy highway superintendent. It has not been filled, but it’s been on the books.”

Guyer said that the deputy highway superintendent position is an unpaid title, and that the employee, Chris Van Praag, is employed as an operator.

“Any title that is unpaid is not classified under Civil Service,” Guyer said. “The deputy works at the pleasure of the highway superintendent.”

Van Praag can now sign for or fill in for Guyer if the superintendent is unavailable due to sickness or absence, Guyer said.

The deputy position is not provisional under Civil Service Law because it is untitled, Guyer said.

John Marsolais, director of the Albany County Department of Civil Service, clarified for The Enterprise that the town must submit a form for the new position, which does not appear in his records as having been assigned to Guyer in the past.

“Jurisdictions use in-house titles,” Marsolais said. “We get this question a lot.”

Because the position of deputy highway superintendent is an existing job title with the Civil Service Department in four other towns, he said, “We’re going to need that new description form to come back to us. We have to make sure it’s classified properly.”

Because highway superintendents are elected, their positions are unclassified with the Civil Service Department; to have their deputies be exempt from competing for positions is not unusual, Marsolais said.

Once New Scotland sends the form for the creation of a new position to the Albany County Department of Civil Service, “We would submit paperwork on their behalf to take it out of the competitive class,” he said.

“Currently, it is an exempt position for the towns of Bethlehem, Coeymans, Guilderland, and Westerlo,” Marsolais said. He did not anticipate that a decision by the state’s department would go differently for New Scotland.

“We have to get it approved by the state,” Marsolais said of New Scotland’s deputy position. “In government, there’s always more paperwork. It’s not an unusual position to take out of the competitive class.”

“It was researched beforehand,” LaGrange told The Enterprise, “to make sure we were doing everything right. It’s uncompensated. [Van Praag] is still an Operator II.”

Clarified on Feb. 19, 2016: The phrase "Bess said had been driven by a drunk operator" was removed from the original story since the tipped-over truck was driven by a different worker than the one Bess alleged had come to work smelling like alcohol.