County Report Cites ‘Offensive' Behavior, but Sees No Illegality

By JONATHAN BURKE

Though he found instances of improper treatment by Dukes County officials, including "inappropriate and offensive behavior" by one commissioner, a human resources expert concludes in a report released yesterday that there was no unlawful treatment of Marsha Smolev, county employee.

Ms. Smolev, assistant to the county manager, alleged sexual harassment by Robert Sawyer, county commissioner; unfair treatment in the workplace by both her supervisor and peers, and negligent supervision by the county.

Thomas Saltonstall, who headed up the Boston office of the Equal Opportunity Employment Commission from 1982 to 1985, was engaged by Dukes County in mid-March to investigate the allegations. He was not asked about, and did not make any inquiry into, a vulgar e-mail which Ms. Smolev received from Steven Borer, spouse of Carol Borer, former county manager, and which is the subject of civil litigation.

"The issues involved - in arguably sharp contrast to the e-mail received by Ms. Smolev on Jan. 3, 2003 - do not rise to a level of gravity warranting litigation," he writes.

His report is part of an administrative investigation and is addressed to Diane Powers, acting county manager. He concludes the parties involved "should attempt in good faith to resolve any outstanding issues between them promptly and voluntarily so that county government may get on with its central mission of serving the taxpayers of Dukes County in a manner unfettered by ongoing controversy."

On Ms. Smolev's allegation of sexual harassment, Mr. Saltonstall said an offer of a kiss by Mr. Sawyer "was sexual in nature, it was unwelcome, and it was offensive." Mr. Sawyer, he said, had asserted that at the time of that comment he had a piece of candy - a Hershey's Kiss - in his hand, but Mr. Saltonstall said he found that assertion "not credible at all."

Mr. Saltonstall noted that Mr. Sawyer attempted later to deny the incident to his fellow commissioners.

Mr. Saltonstall said that Mr. Sawyer, whether he was joking with Ms. Smolev or not, should have known better, following a complaint by Ms. Smolev three years earlier that he had behaved in a sexual and inappropriate way. Mr. Saltonstall said Mr. Sawyer's later attempt to deny the offer of a kiss to his fellow commissioners was inappropriate.

Noting that Ms. Smolev had not made any complaints in the intervening three years, and that she had not interpreted Mr. Sawyer's behavior in 1999 "as an attempt to coerce her into a sexual relationship," Mr. Saltonstall concluded that Mr. Sawyer's behavior was not pervasive or severe enough to constitute unlawful conduct.

On Ms. Smolev's more general allegations of a hostile workplace, Mr. Saltonstall found that Ms. Smolev overstepped her own boundaries when Mrs. Borer refused to increase her responsibilities and give her a pay raise in her third year of employment.

"Following Mrs. Borer's decision not to modify Ms. Smolev's job description, according to many of those interviewed, the frequency of Ms. Smolev's complaints increased," he wrote.

Mr. Saltonstall found Mrs. Borer's management style to be viewed by county employees as "authoritarian and directive," but not improper.

"Ms. Smolev, as well as other employees, arguably might have had a higher level of job satisfaction had Borer's management been characterized by a more supportive, personable, and motivational style. Such clashes in style between managers and employees, however unfortunate, are commonplace in workplaces and do not give rise to successful, actionable claims of wrongdoing in and of themselves," he wrote.

According to Mr. Saltonstall, a comment by T.J. Hegarty, the county's rodent control officer, that Ms. Smolev might have been the author of the vulgar e-mail message of which she complained was "inappropriate - to say nothing of the fact that it was subsequently proven to be incorrect," but not defamatory.

Mr. Saltonstall did not find any evidence of negative or defamatory statements by Steve Berlucchi, county engineer.

Mr. Saltonstall found that the county acted reasonably to protect Ms. Smolev following her receipt of the e-mail, changing the locks in the weeks following the incident and giving Ms. Smolev paid leave. And he found that the county did not behave improperly by placing Ms. Smolev on paid administrative leave after her attorney lodged an informal complaint with the county.

Mr. Saltonstall mostly cleared Leslie Leland, county commissioner and then chairman, of any wrongdoing. He said Mr. Leland acted to the best of his ability under difficult circumstances following Ms. Smolev's receipt of the vulgar e-mail.

His failure to change the locks to Ms. Smolev's office right away, notwithstanding the credible threat poised by the e-mail, was not grounds to find that he acted unreasonably, said Mr. Saltonstall. Mr. Saltonstall notes that Mr. Leland asked Ms. Smolev if she would like a few days off with pay.

But Mr. Saltonstall was critical of Mr. Leland's failure to cause an investigation into Ms. Smolev's allegation that she was physically assaulted by Mrs. Borer.

"However casually presented, and whether or not action on his part was requested, commissioner Leland should have caused an investigation into the allegation to be conducted, and promptly," he wrote. "An allegation of assault in the workplace is a serious matter, and a prudent employer should move quickly to gather the facts and take such action as may be appropriate based upon the facts obtained."

After his investigation, Mr. Saltonstall said he did not find evidence that Ms. Smolev had been physically assaulted by Mrs. Borer.

"There is therefore no basis for a claim of negligent supervision," he wrote.