The East Hampton Town Board has suspended its Natural Resources Director, Noyac resident Larry Penny, following a hearing on charges of “misconduct,” “incompetence” and “insubordination” levied against the decades-long town employee.
Last Wednesday, East Hampton Town Attorney John Jilnicki served Penny with 16 disciplinary charges and suspended him for 30 days without pay.
“If you are found guilty of the above charges, the penalty or punishment imposed upon you may consist of dismissal from the town, demotion in grade or title, suspension without pay, a fine or reprimand,” wrote Jilnicki. “Please be advised that the proposed penalty is termination.”
All 16 charges stem from Penny’s alleged storage of animal carcasses in the basement of the natural resources department, as well as formaldehyde, Penny’s management over clearing projects within the town, keeping permits in place, and his administration of the natural resources department.
Penny has until today, Thursday, to file a response to the claims if he chooses. After that, a hearing will be set that will determine his fate. If unsatisfied with the outcome, Penny could always choose to bring the matter to a higher court of law.
On Monday, Penny’s attorney, Thomas Horn, Jr. Esq. — a Sag Harbor resident — questioned why the town would choose to suspend Penny without pay when it could have moved forward with the hearing regardless of whether he was suspended. That this occurred during the holiday season for a non-union employee — one without access to free legal representation — Horn called “Grinch-like.”
Horn also noted that it appeared the town board was taking just a handful of alleged incidents in bringing these charges against Penny, rather than looking at the whole of his almost 30-year tenure with the town. He also said that he questioned whether or not the town board had specific policies in place that back up their charges against Penny.
According to the complaint, in September of 2011, it was discovered Penny had been storing “various animal carcasses and/or parts in a basement storage room.”
The complaint states that the East Hampton Town Supervisor emailed Penny on September 15 asking for an immediate plan to dispose of the animal remains. Without a plan from Penny, the town retained an outside contractor to do the work, states Jilnicki. However, it was his failure to comply with a supervisor’s directive to submit a plan that constitutes insubordination, or misconduct on Penny’s part, states the complaint.
In the second charge of insubordination, the complaint states that on October 6 Jilnicki sent a directive to Penny asking the remains be removed, which was also not heeded.
The third charge — for misconduct — states that Penny did not have permission to keep the animal carcasses on town property and that they were not necessary for him to complete his job as natural resources director. That charge is specifically for Penny’s conduct, and the “improper collection and/or storage of animal remains.”
Penny is charged with incompetence for allegedly storing the animals “without proper safeguards to protect others from noxious odors and possible contact with such remains and any pathogens such remains may host.”
He is also charged with misconduct by the town for “unauthorized use and/or storage of formaldehyde” on town property without permission, and for the way the formaldehyde was stored, which the complaint states was not in compliance with proper rules laid out by the Occupational Safety and Health Administration (OSHA) as well as the state, including exposure monitoring. That, says, Jilnicki, put the town under potential liability for non-compliance. For the same reasons another charge of incompetence was levied against Penny.
While Penny did in fact have permits in place for the collection of animals, according to the complaint, some of those permits were no longer current, also putting the town in potential liability.
In addition to the storage of animals, the complaint also references permits the town earned from Suffolk County to remove vegetation at the Barbara Hale Preserve in Springs. The complaint charges that Penny — in violation of these permits — authorized the removal of trees by mechanical means and permitted a private contractor to take the trees without town or county approval.
It also points to a state grant the town earned for East Hampton Harbor Habitat Restoration, which in part required the removal of 15 acres of Phragmites. According to the complaint, that has not been completed to date and Jilnicki also points to an alleged clearing on Squaw Road where Penny did not complete a full investigation as another form of misconduct.
Lastly, he is charged twice with failure to supervise his department and one charge of failing to perform his duties as Natural Resources Director.
Penny has led the department for 26 years.
“Larry Penny has been conducting himself the same way this year as he has done for the past several administrations, including the first two years of this administration,” said Horn. “He has used his independent judgment, which is part of the job of a department head. His job is to implement board policy and local law. His job is also to run his department.”
Horn added that if the town board had implemented a policy specific to the situation, Penny would have been obligated, and happy, to follow that town law or risk termination. However, without a policy in place, said Horn, it is up to the department head’s judgment.
“But to get into the cab and steer rather than point the way is I suppose a way to go, but it is not the way government is supposed to work,” said Horn.
Horn said he did not want to discuss the specifics of the case, simply because he and Penny were still going over the claims with very little time on their side.
“We are open to solving this and having Larry continue on as a department head and implement the policies the board sets in place,” said Horn. “He wants nothing more than to be an effective department head in a job he has really cared about for a number of years.”