Investigation into charges against Dewey town manager questioned

The attorney representing more than a dozen Dewey employees calling for the removal of Town Manager Marc Appelbaum is questioning the impartiality of the attorney hired by the town to investigate the issue.

In a July 18 letter to Dewey town attorney Fred Townsend, Wilmington-based attorney Richard Cross said attorney Max Walton, hired by the town to investigate employee accusations against Appelbaum, has a prior relationship with the town manager. Accusations against Appelbaum include sexual harassment, offensive language, misuse of town funds, racial discrimination and jeopardizing public safety.

“Mr. Walton’s engagement is just the latest troubling step in the council’s and your purported ‘independent’ investigation of the claims of my client,” writes Cross in the letter.

As evidence of the previous relationship, Cross provides Townsend with a series of emails sent by various town officials, during a period of time that stretched from November 2009 to July 2010.

Walton represented the town’s board of adjustment in a 2009 case against Dewey Business Enterprises, owners of the Lighthouse Cove development project, who questioned the board’s decision to deny a request to lesson the required minimum lot size for residential units in the mix-used structure. In a July 2009 decision, Judge E. Scott Bradley ruled in favor of the board, but ultimately, the decision was overturned a year later by Supreme Court Justice Carolyn Berger.

In a November 2009 email from Appelbaum, then a commissioner, to former town attorney Glen Mandalas and former Commissioner Rick Solloway addressing a future lawsuit, Appelbaum said he is the point person for council on litigation matters and then recommends Walton.

“From my perspective Max did a terrific job on the case, the outcome was positive,” Appelbaum writes. “Please let Max know how much I respect and appreciate all he is doing to help the town out in these difficult times.”

Cross also accuses Walton of lying about representing the town previously.

“I had spoken to Mr. Walton when he was first hired to do the investigation. I had asked him if he had a previous working relationship with Mr. Appelbaum. He expressly indicated that he did not. None,” writes Cross.

Walton said those matters ended several years ago. “My prior representation of that board and the individual defendants does not in any way limit my firm’s ability to conduct an unbiased review of the complaints made against the current town manager,” he wrote in a July 19 email.

He said he accepted the appointment as the independent investigator knowing of, and following disclosure of, his representation of the individual defendants and the board in the prior cases.

Townsend could not be reached for comment.

Dewey Mayor Dale Cooke said as of right now, the town is staying with Walton. “If it gets to the point where commissioners think there was too much contact, then that might change,” he said. “If it’s just some minute relationship that took place 10 or 15 years ago, I don’t know if that would be enough to change the commissioners’ minds.”

The issue with Appelbaum began June 14 when 12 employees, including police Chief Sam Mackert, beach patrol Capt. Todd Fritchman and Building Inspector Bill Mears, sent a letter to town commissioners asking for the immediate removal of the town manager. The 13th, 14th and 15th complaints were submitted to the commissioners June 27 by Alderman Court clerk Diane Jones, and June 28 by Martha Sweeney, Highway One Properties comptroller, and former Alderman Court clerk Barbara Kyewski. Complainants 16 and 17, both submitted July 5, are property owner Robert Belmonte and former Commissioner Rick Solloway. Former town clerk Katrina White became the 18th person with her July 10 submission.

Cross filed a complaint with Delaware’s Public Integrity Commission June 29 and then filed a lawsuit July 13 in Chancery Court seeking an emergency injunction to stop Appelbaum’s interference with the operations of the police department, beach patrol, building inspector and Alderman Court. The court denied the injunction, instead telling the town and the complainants to work on a scheduling order for discovery in the case.

Townsend announced June 29 that Walton had been hired by the town to conduct the independent investigation, and his hiring was reaffirmed by council during its July 14 meeting.

Cross also notes that if town council has any true interest in an independent investigation, it should join in the request to have the integrity commission perform that investigation.

The integrity commission has said it won’t look at the issue until its August meeting, at which time members will decide if they’ll conduct an investigation.

But Cooke said waiting until August just for the commission to make a decision is too long. “We don’t even know if they’re going to take it up,” he said.

In a letter to Walton July 19, Cross accused town officials of holding closed-door meetings with town employees in an attempt to get the stories straight.

Cooke said he hasn’t had any closed-door meetings and that he regularly talks with employees from both sides of town hall to make sure needs are being met.

Commissioners respond with statement

In a July 24 statement, town officials have said they spoke with Townsend and concluded Walton has had no meaningful relationship with Appelbaum.

“His only contact with other town officials ended approximately seven years ago,” the statement reads. “The email in which Mr. Appelbaum expresses admiration for the quality of Mr. Walton’s legal ability does not suggest a lack of independence. There is simply no basis to conclude Mr. Walton lacks the necessary independence to fairly conduct this important investigation.

The statement said Townsend will direct Walton’s team to proceed as quickly as possible to complete the investigation.

The statement then goes on to accuse the complainants, on the advice of their counsel, to not participate in the investigation.

“We believe our charter obliges us, in the interest of all parties, to resolve this matter in a timely and fair manner,” says the statement. “To that end, we would urge those alleging violations, the town manager, and any others who have evidence relevant to the charges to arrange to meet with Mr. Walton’s team as soon as possible.”

The statement acknowledges the complainants have turned to the Delaware Public Integrity Commission, and say their independent investigation may be helpful to that process.

“We cannot shirk our responsibility to investigate these allegations and obtain a full and clear understanding of all relevant facts. As elected town officials, it is our obligation to protect the rights and welfare of all the employees involved.”