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.