Highway bookkeeper now facing probe

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November 2, 2009

By DENISE A. RAYMO The Press Republican Mon Nov 02, 2009, 11:46 PM EST

MALONE — The Town Council is investigating whether a Highway Department employee disclosed "confidential documents" to the Press-Republican.

But Mark Besio said he did nothing wrong by filling a reporter's Freedom of Information Law request because some of the documents were his to do with whatever he wanted.

He says the Town Council is trying to fire him, or at least cut his work hours and pay, over the incident.

REQUEST FILED OCT. 19
Besio said that on Oct. 19, he received the Freedom of Information by fax from the Press-Republican, which requested "any and all records or portions thereof pertaining to drug-test results and associated paperwork for Thomas Shanty, as well as the daily work logs kept by the Town of Malone Highway Department from Dec. 1, 2008, to Jan. 31, 2009."

Shanty, the deputy highway superintendent, was suspended without pay by the Town Council on Oct. 14, citing a positive marijuana result on a mandatory substance and alcohol test he took in December 2008, following a rear-end collision a vehicle had with his snowplow.

Shanty is running against Ronnie Benware for highway superintendent, since the incumbent, Alvin Livernois, decided not to seek re-election.

The town has scheduled a Civil Service hearing for Monday, Nov. 9, where a hearing officer will review the charge against Shanty and make a recommendation to council members that could include firing him.

HOURS CURTAILED
In the meantime, Besio said he called Town Clerk Susan Hafter to let her know he'd gotten the newspaper's Freedom of Information Law request and then followed that up by forwarding a copy to her via fax.

"I didn't hear anything from her," Besio said, so he filled the Press-Republican's request on Oct. 22.

"They (the town) knew I gave (the newspaper) the documents, and I find it funny that during a budget meeting on Oct. 23, my hours were reduced and my pay cut $8,500," Besio said.

He said he called all of the Town Council members to find out about the proposed pay cut and hour reduction, but no one returned his messages.

Besio said he then made a written request to the Town Council to be added to the agenda for its next budget meeting, scheduled for last Thursday, to discuss the issue.

SUMMONED
On Monday, Besio was given a letter from Town Supervisor Howard Maneely, ordering him to appear at the Town Offices at 11 a.m. Thursday.

"The purpose of this meeting is an investigation concerning your employment, specifically whether you disclosed certain confidential documents to a media representative," the letter states.

"Your failure to attend this meeting without good cause will constitute insubordination."

Besio thinks he is about to be fired.

"Isn't it funny how they are trying to fire me in the morning and the budget meeting is at 5 o'clock that night? They say I gave (the Press-Republican) confidential documents, but they are mine. I can do whatever I want with them. I did nothing wrong."

COINCIDENCE
Town Council member Jack Sullivan said the timing of the release of documents and the scheduled investigation are a coincidence and that the pay cut was talked about among the officials before now.

"I don't think the two are related," he said, adding, "I could really see" how the Town Council's actions could be perceived as revenge by some.

As for the pay cut and reduction in Besio's work hours, "the reason was to bring him in line with other clerical people who work 30 hours."

Sullivan said no other clerical people saw their work hours or pay cut.

Besio was the only clerical staff person on the town payroll working more than 30 hours, he said.

Sullivan said Besio's pay cut had been discussed last week in executive session, but he is not at liberty to say more.

"It's still considered full time," he said, and the bookkeeper would retain his medical coverage if he is not fired as a result of Thursday's probe.

That is a factor for Besio because he has cancer and has his health insurance with the town.

HEARING DOCUMENTS
The release of documents the town is concerned with could pertain to a labor-relations hearing held on Sept. 11, attended by Sullivan and Paul Walbridge, where Shanty answered questions about the December 2008 collision and his work schedule.

Federal transportation laws forbid drivers who have tested positive to operate safety-sensitive machinery, such as snowplows, until the drivers have been evaluated by a substance-abuse counselor and cleared for return to driving duties.

But Shanty told the hearing officer that Livernois assigned him to drive the snowplow at least 14 times between the Dec. 8 crash and Jan. 15, when a substance-abuse counselor finally cleared him to return to safety-sensitive-driving duties.

Besio was also questioned by the labor-relations officer, but he said his repeated attempts to obtain copies of the transcript of his testimony have been unsuccessful.

"My question to the Town Council is: Why haven't they questioned Alvin (Livernois)? They talked to Tom, and they talked to me. But as far as I know, no one has talked to Alvin."

EXPERT WEIGHS IN
"There are portions of a record that 'may' be withheld, but the law does not say that it 'must' be withheld," said Robert Freeman, executive director of the Committee on Open Government, who was contacted Monday by the Press-Republican.

"It sounds like, in my opinion, that this person was disclosing pertinent information to protect the public and let the public know that the driver was required to drive without the qualifications to do so.

"The finding, in my opinion, is with the person who failed to carry out his or her duties by allowing the person to drive," Freeman said.

"That's probably why the town doesn't want it disclosed. But I've said it a million times: Embarrassment has never been grounds for withholding information from a Freedom of Information request."

VOUCHERS
Town officials have said they did not know of Shanty's positive test results, even though as many as four of the five elected officials signed the billing vouchers that state a positive drug test occurred in December 2008.

The documents include the last four digits of Shanty's Social Security number, along with a series of follow-up tests with negative results and the return-to-duty test.

Maneely is also concerned that his name was removed as one of the people to whom positive drug-tests results were reported.

Drug testing is contracted through the Jefferson-Lewis Board of Cooperative Educational Services in Watertown, which requires the contracting entity to submit names of a primary and secondary contact person to send the test results.

Livernois was one of the people, and Besio was listed as the secondary.

The contact person can only be changed if the request is made to BOCES in writing.

E-mail Denise A. Raymo at: draymo@pressrepublican.com