Published July 12. 2013 4:00AM
Montville - The assistant supervisor of the Water Pollution Control Authority who was fired in June 2012 was "incapable of consistently performing the essential functions of the position in a satisfactory manner," according to a report prepared by the town's law firm.
The report by town attorneys recommended that Tom McNally be fired or otherwise disciplined for his actions during two workplace accidents and for his use of a town computer for personal reasons.
McNally, who is the chairman of Republican Town Committee and secretary of the Board of Education, sued the town, alleging that he was fired for political reasons. That lawsuit was settled in February.
The Day requested a copy of the report on the investigation conducted by the firm of Suisman, Shapiro, Wool, Brennan, Gray and Greenberg, P.C., in May 2012. That report was provided to members of the Town Council and WPCA, and was also given to McNally.
The town refused to release the report to The Day, saying it was exempt from disclosure under state law because it was a preliminary draft and involved attorney-client privilege. At a Freedom of Information Commission hearing in April, The Day argued that the report was a public document and subject to disclosure. The Day also argued that there was a strong public interest in releasing the report because it involved the public safety of WPCA operations.
The FOI commission found that the town broke the confidentiality of the document when it gave a copy to McNally. The commission also found that because the report became the final recommendation of the town, it is not a preliminary draft. On June 26, the commission ordered the town to provide The Day with a copy.
In addition to written statements from those involved and emails among McNally, Mayor Ronald McDaniel and town attorney Eileen Duggan, the report includes summaries of interviews with WPCA Superintendent Michael Didato, McNally, WPCA Collection Systems Operator Jon Lilly, WPCA mechanic Robert Tobey and WPCA employees Gregg Bassetti and Bob Fish.
The first incident occurred Dec. 23, 2011, when Didato and Lilly went to the Avery II pump station to determine whether a cracked valve could be repaired and called McNally and Bassetti to assist them. McNally opened and closed the valve before leaving with Bassetti to pick up tools.
While McNally and Bassetti were gone, the valve exploded and covered Didato and Lilly with wastewater. The wastewater got in their eyes and covered stitches on Lilly's neck.
McNally claimed that when he returned he did not clearly see the two workers and that he believed they had fixed the valve and that the reason they were wet was from rainwater.
Lilly and Didato said that they were visible to McNally and clearly covered in wastewater. In his interview, Didato said that he did not expect McNally to leave because "no normal person" would have left them there in that situation.
After McNally left, Lilly and Didato sought medical attention. McNally filed a report of their injuries on Dec. 27.
The attorneys did not find McNally to be "credible" and concluded that he was in a rush to leave work on Dec. 23, which may have contributed to his actions. They also found that McNally should not have opened the valve and that "if McNally did not know that opening the valve was inappropriate, his qualifications for the assistant superintendent position are questionable."
After visiting Avery II, the attorneys also found that McNally would have been able to see Lilly and Didato when he returned to Avery II and would have noticed that they were covered in wastewater.
The other incident, in which Tobey claims to have injured his back, took place Dec. 28 at a site called Haughton Cove. While the attorneys found that McNally was not aware of the injury that occurred as they were pumping a manhole, they said the incident was "still very concerning." The report concluded that McNally was distracted, and that if he had not been on his cell phone the injury could have been prevented.
The lawyers decided to investigate McNally's computer when they discovered a password that McNally admitted "may not be the most appropriate."
Computer records showed that McNally routinely accessed Facebook, personal banking sites, eBay and match.com during work. He also engaged in political conversations over email. During the interview, McNally alleged that using computers for personal reasons is not uncommon at the WPCA.
The lawyers investigated claims by McNally that he was being harassed at work and that employees did not respect the rules he set but found those did not "rise to the level of workplace harassment."
The attorneys recommended that if the town did not fire McNally, he should receive other discipline and attend counseling on workplace conduct, among other measures.
The report also said that Didato should be required to attend additional management or human resources training but did not elaborate on the reasoning behind that recommendation. It suggested changes to WPCA operations, such as not allowing non-employees to operate equipment and educating employees on the computer policy.
"Obviously, I strongly deny any claim of failure to perform duties as claimed in the draft report," said McNally in a statement provided by his attorney Thursday, "but I am not permitted to comment further based on the terms of the settlement agreement."
"I think that anyone who knows me and my record of service to the Town of Montville will draw their own conclusions," he said in the statement.
McDaniel did not return a call asking for comment on Thursday. In a statement, Duggan said that Montville did not want to disclose the documents because the town considered "maintenance of the attorney-client privilege significant, and desired a ruling by the FOIC."
"While the Town disagrees with the FOIC's decision, it respects the same and has now disclosed the report," said Duggan in the statement.