A Dexter man who was dismissed as part-time code enforcement officer for Benton is suing the town, saying it discriminated against him because of his age and because he alerted selectmen about a possible illegal meeting of the Planning Board about a controversial cell tower proposal.

Albert Tempesta, who was 60 when he was told March 8 that he would not be reappointed to the job, alleges in a civil lawsuit that the town violated the state’s Humans Rights Act, Whistleblower Protection Act and Freedom of Access Act.

Kennebunk attorney Laura White, representing Tempesta, writes that municipal officials fired Tempesta without cause and told him a replacement was chosen who was “younger” and “a better fit.”

The suit was filed April 14 in Kennebec County Superior Court. The town, through Bangor attorney Fred Costlow, filed a motion to dismiss the case May 5, denying the allegations.

Costlow said by phone Thursday that the town was within its rights to not reappoint Tempesta because he was working for the town under a one-year contract.

“People are hired for a term and when the term’s up, it’s up,” Costlow said. “He was not terminated. The term of the contracted expired.”

Tempesta, who also has worked as a code enforcement officer for other communities in Somerset and Penobscot counties for 15 years, was hired for the part-time role in Benton in 2013. He handled five to 20 calls a week, earning an annual salary of $15,900, according to the suit.

He says no one ever complained about his job performance in Benton and that selectmen had reappointed him to the post annually without discussion.

ILLEGAL MEETING?

Tempesta, in his lawsuit, says a sign of trouble arose July 14, when he attended a meeting of the Benton Planning Board about a proposed U.S. Cellular tower on Benton Avenue, a controversial project that the board ultimately rejected in January this year.

Tempesta says he locked up the office after the July 14 meeting and outside he found three of the six Planning Board members — Leo Caron, Roger Averill and Kathy Bolster — and Sen. Scott Cyrway, R-Benton, “having a discussion of the earlier meeting and how to turn down this application.”

Tempesta says he reminded Cyrway “that he should know better than to have a meeting with three Planning Board members and to discuss what they were discussing,” according to a letter the code officer wrote to selectmen on July 21, which is included in the lawsuit. “Kathy Bolster responded that there was always a squealer in the bunch,” Tempesta added in his note to selectmen, which he described as a “cover your butt letter.”

Under Maine’s Freedom of Access Act, a public proceeding requires prior public notice and is defined as “a meeting of a body or agency consisting of three or more persons.”

In his lawsuit, Tempesta says he wrote the letter to selectmen “because he was concerned that the Town would get sued by U.S. Cellular, which had submitted a completed application for the cell tower but was receiving significant opposition and delay in approving the cell tower from the Town Planning Board.”

The proposed cell tower sparked outrage among some residents, with some nearby property owners telling the Planning Board they were concerned about health and safety problems.

U.S. Cellular proposed the 80-foot-high, self-supported monopole tower on land owned by James Carson at 1586 Benton Ave., near the Neck Road intersection. The tower was to be behind commercial buildings on the property in a residential and business area between Benton Avenue and the Kennebec River.

The company said a new tower was needed to ease traffic on an overloaded tower in Waterville.

Jim Herbert, an engineer with Black Diamond Consultants, the West Gardiner-based company that worked on the application for U.S. Cellular, could not be reached for comment Thursday.

Tempesta says in his lawsuit that the Planning Board was “discussing ways to derail the cell tower project, unbeknownst to the applicant U.S. Cellular.

“Mr. Tempesta specifically told the Board of Selectmen, ‘I think you’re going to get sued before this deal is done.'”

Costlow writes that Tempesta’s whistleblower allegation doesn’t meet the law requirements.

“Here, what the employee alleges is that there was a discussion,” he writes. “There is no allegation that this was anything other than an isolated single incident. In fact, on January 26, 2016, the permit application for the telecommunications facility was canceled.”

After the board sent U.S. Cellular a Jan. 12 letter saying that it had rejected the cell tower application because of a lack of information requested, the company asked the town to place its proposal on hold indefinitely.

AGE ALLEGATION

After Tempesta wrote the letter to the Board of Selectmen, Selectwoman Melissa Patterson emailed the Maine Municipal Association about Tempesta, who she said was “trying to be fired,” according to the lawsuit.

Patterson cited “several complaints” about the code enforcement officer’s behavior, which Tempesta said he was unaware of.

The MMA responded that such complaints should be put in writing, that selectmen should “hear the complaint and (Tempesta’s) side of things as well in an impartial manner,” and that a firing could not take place without just cause supporting the termination, according to the lawsuit.

On March 8, Tempesta said, First Selectman Dan Chamberlain called him at home and said he would not be reappointed as code enforcement officer. “We found someone younger who we think will be a better fit,” Chamberlain told Tempesta, according to the lawsuit.

Tempesta says Chamberlain mentioned several times the replacement was younger and that selectmen already had interviewed the replacement a week earlier and decided then to not reappointment Tempesta.

The lawsuit claims that Chamberlain told Tempesta not to attend the upcoming selectmen’s meeting when the replacement would be appointed, because “there’s nothing you can do.” The town appointed Adam Bradstreet as code enforcement officer.

The town, in Costlow’s motion to dismiss the case, says Tempesta’s employment certificate with the town “is crystal clear that the term of office is to expire on March 15, 2016,” and the “just cause” requirement doesn’t apply. Tempesta clearly was classified as a temporary employee, Costlow writes, so “the temporary employment status may be terminated for any reason at any time.”

“Selectmen change, so do city councils,” Costlow writes. “No person can have an expectation that the town’s needs and/or individuals making decisions would in fact continue to be the same indefinitely.”

On the charge of age discrimination, Costlow writes that the allegation amounts to “an acknowledgment that he has failed to exhaust his administrative remedies” with the town.

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