Criminal Investigations New Edition Changes Cont.

The new edition of Criminal Investigations features a small new section in the area of “confessions” in Chapter  5. It is followed by the familiar “Reliability of the witness” section.

“Why people confess – new

It has been estimated that 80% of all people will confess to a crime. There are two basic catagories of people who confess,

1. guilty parties who psychologically need to “get it off their chest”

2. persons who are not guilty but who act under some urge to confess.

The reliability of eyewitness identification

eyewitness identification and other information provided by eyewitnesses to a criminal offense are relied on heavily by both the police and courts in the investigative and adjudication stages of our system of justice, yet research indicates that eyewitness testimony may be unreliable.
Eyewitness identification and description is regarded as the most unreliable form of evidence and causes more miscarriages of justice than any other method of proof.
Human perception is sloppy and uneven.
Experts distinguish a number of factors that limit a person’s ability to give a complete account of events or to identify people accurately. The following are among those factors:
1. The significance or in significance of the event
2. the length of the period of observation
3. lack of ideal conditions
4. psychological factors internal to the witness
5. the physical condition of the witness
6. expectancy — means that an individual perceives things in the manner in which he or she expects them to appear.

An eyewitnesses conduct can be influenced by expectations and inferences, which in turn can be influenced by the verbal and nonverbal behavior of investigators, the structure of the identification process and the environment in which the identification takes place.”

Attorney Ronald A. Sellon

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“Deceived” suspect’s testimony ruled valid

The following article contains the basic decision made by the Civil Service Commission. Citations were omitted and tenses changed to allow for easier reading. The entire decision may be found by clicking here.

Commonwealth v. Tremblay

On the night of April 27, 2002, a boat parked on a trailer near a lake in Chelmsford was extensively damaged by a fire. Police later determined that the fire had been deliberately set. An investigation led to the indictment of Mark D. Tremblay, the defendant, who was convicted by a Superior Court jury of malicious burning of personal property, damage of property for the purpose of intimidation, and a civil rights violation. On appeal, the defendant claims that the motion judge improperly denied his motion to suppress certain oral statements he made to a State trooper “off the record.”

In April, 2002, a man we shall call Harold Nelson lived in a house near a lake in Chelmsford. Nelson owned a motor boat that he kept on a trailer parked on his lot. The defendant owned the house next door to Nelson’s and, on the evening of April 27, was holding a small party for some friends. At about 11:20 P.M., Nelson’s boat suddenly erupted in flames and was extensively damaged.

Massachusetts State Trooper Peter Cummings, who worked with the fire and explosion section of the State fire marshal’s office, investigated the case and quickly determined that the fire had been intentionally set. As a result of an interview Cummings conducted on May 8, 2002, the defendant became the investigation’s principal target.

At about 4:00 P.M. on May 8, Cummings telephoned the defendant’s home and spoke with his wife, explaining that he wanted to speak to the defendant as part of his investigation. In reply, Ms. Tremblay told Cummings that her husband was at a baseball field, and gave Cummings a cellular telephone number where the defendant could be reached. Cummings telephoned the defendant, identified himself, told the defendant why he was calling and said he would like to meet with him. In response, the defendant said that he had been expecting the call.

Cummings asked where and when the defendant would like to meet, and offered to come to the ballfield. The defendant said that he preferred to meet elsewhere, so Cummings suggested the Chelmsford central fire station and they agreed to meet there in five to ten minutes. As planned, Cummings and his colleague, Chelmsford fire investigator Hank Houle, met the defendant at the fire station a few minutes later. The trooper and the investigator were in an unmarked vehicle and were dressed casually.

In the conference room at the fire station, Cummings told the defendant that he wanted to discuss the boat fire. Cummings also said that he wanted to obtain a written statement from the defendant, and that he would write the statement in the first person for the defendant’s review and signature. The statement, Cummings said, had to contain specifics. Cummings did not tell the defendant that he was a suspect or a target of the investigation. Moreover, having determined that the defendant was not in custody, he did not give the defendant the so-called Miranda warnings.

During the interview, which lasted a little more than one hour, the trooper’s demeanor was sympathetic. The defendant, who was fifty years old at the time, was cooperative and appeared relaxed, focused, and coherent. On multiple occasions, he left the conference room to engage in cellular telephone conversations. The interview included small talk, during the course of which the defendant discussed work he had performed moving equipment for professional sports teams and installing “kill” switches in police cruisers. At one point Cummings told the defendant that he could leave to pick up his son and resume the interview later if he wished, but the defendant decided to stay and finish the interview.

At some point, Cummings asked the defendant if he had any idea who might have been responsible for setting fire to Nelson’s boat. The defendant responded that he “had his suspicions.” When Cummings pressed him to amplify, the defendant said that Cummings probably had heard about the “gay activities” at Nelson’s house. Expressing reluctance to describe those activities in writing, the defendant said that he would prefer to discuss them with Cummings “off the record.” Cummings said, “Fine, … we’ll go off the record.”

Once “off the record,” the defendant, in an agitated narrative during which he used profanities, expressed his anger about “some of the things that he and his wife [had] been subjected to.” He then described some activities of Nelson’s that he claimed to have witnessed, and ended by saying that he did not want his son looking at Nelson and his “lovers kissing out in the hot tub” at the back of Nelson’s house.

As the motion judge noted, after the defendant finished, he agreed, at Cummings’s urging, to include in the written statement “a watered-down description of the so-called ‘gay activities,’ including the purported sexually explicit conduct that occurred in plain view of the defendant’s house.” The defendant also agreed to include in the statement his suspicion that the fire “may have been caused by a lover’s quarrel” between “same-sex partners” who have “frequent arguments.”

The interview ultimately resulted in a five-and-one-half-page handwritten statement that was reviewed by the defendant, Cummings, and Houle. After the defendant signed the statement, Cummings became more confrontational and told the defendant that he did not believe him. Among other things, Cummings asked the defendant about a conversation the defendant hadwith Peter Karlson, one of the guests at the defendant’s party on the night of the fire, in which the defendant told Karlson that he had changed his shirt during the evening because he had spilled gasoline on himself when he lit the boat on fire. The defendant insisted that he did not know what Cummings was talking about. When Cummings asked if he could see the shirt the defendant had been wearing early on the evening of the fire, the defendant said that he assumed the shirt was at his house and offered to produce it, though he never did.

The interview ended shortly after Cummings asked to see the shirt. As it ended, Cummings told the defendant that he was likely to be indicted for arson, and that “now was the time to start telling the truth.” To that, the defendant responded that he had provided all the help he could, and, accompanied by Cummings’s valedictory, “Good luck, you’re going to need it,” he left the fire station.

On June 27, 2002, the defendant was indicted for malicious burning of personal property, in violation of G.L. c. 266, § 5; damage of property for the purpose of intimidation, in violation of G.L. c. 265, § 39; and a civil rights violation under G.L. c. 265, § 37. The defendant filed a motion to suppress the “off-the-record” statements he had made to Cummings. That motion was denied after an evidentiary hearing. In a thorough and careful memorandum of decision, the motion judge, after canvassing and discussing applicable precedent, found that “[w]hile the defendant was likely misled concerning the ultimate use against him of his more offensive description of his neighbor’s alleged sexual preference and conduct, the defendant was voluntarily talking with the investigators before any promise or assurance, and the essence of these comments was voluntarily included in his written statement. Indeed, the fact that the defendant was sufficiently savvy to ensure that the version which was potentially more harmful to himself was not included in the written statement is another indication of the absence of coercion.”

Following a jury trial where the evidence included the “off-the-record” statements, testimony about the defendant’s “off-the-record” request, and testimony about the kind of language the defendant and his friends used when discussing Nelson and his friends, the defendant was found guilty of all three counts of the indictment. On appeal, his sole argument is that the “off-the-record” statements were involuntary and should not have been introduced at the trial.

In assessing the defendant’s claim, the court started with the familiar proposition that a confession or an admission may be admitted as evidence in a criminal trial only if the defendant made the statement voluntarily. In turn, the test for voluntariness is “whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.”

“In evaluating the voluntariness of a defendant’s statement, a number of factors are to be considered, including the following: age; education; intelligence; emotional stability; physical and mental condition; conduct of the defendant; who initiated the conversation with the police; experience with and in the criminal justice system; the details of the interrogation, including recitation of Miranda rights; and whether any promises or inducements were made by the police.” As the court reviewed the motion judge’s application of those factors and his ultimate decision, we “accepted the judge’s subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing…. We reviewed independently the application of constitutional principles to the facts found.”

The defendant was fifty years old at the time of questioning, and there is nothing in the record to suggest that he lacked education or intelligence. The record reflects that he was emotionally stable at the time of questioning, and that he had no physical or mental impairments. The defendant’s conduct further indicates that the interview was not coercive. He engaged in personal cellular telephone conversations during the interview, and chose to continue the interview, even after he was given the option to leave, pick up his son, and resume later. As the interview progressed, the defendant and the investigators discussed matters other than the boat fire, including the defendant’s familiarity with several State troopers he had met while installing equipment in police cruisers. The police in this case initiated the conversation, but they did not arrest the defendant during or immediately after the interview. The defendant does not challenge the motion judge’s finding that there was no custodial interrogation, and, consequently, does not argue that he should have received Miranda warnings. Thus, the only basis on which one could possibly conclude that the defendant’s statements were involuntary is that he made them after Cummings told him that he could speak “off the record.”

Even if Cummings’s assertion that the defendant’s statements would be “off the record” was viewed as an exercise in police deception or trickery, the exercise does not make the defendant’s statements involuntary. To be sure, Massachusetts decisions do disapprove of police officers’ use of deception as a tactical device, and acknowledge that deception casts doubt on the voluntariness of statements the deception produces. But “[m]isinformation by the police does not necessarily render a confession involuntary.” Particularly in cases such as this, “where the use of a false statement is the only factor pointing in the direction of involuntariness, it will not ordinarily result in suppression.”

Some forms of police deception or trickery are more likely than others to result in a finding that a statement is involuntary. For example, cases in which an officer “suggest[ed] broadly that it would be ‘better’ for a suspect to tell the truth,” but then told the defendant “that a confession would ‘probably help your defense; in fact, I am sure it would,’ ” Commonwealth v. Meehan, 377 Mass. 552, 564-565 (1979); cases where promises of leniency are combined with false statements about “ostensibly irrefutable evidence of guilt,” see Commonwealth v. DiGiambattista, supra at 439; and cases where police use trickery to obtain a waiver after a defendant has exercised his right to remain silent or have requested counsel, see Commonwealth v. Taylor, 374 Mass. 426, 433 (1978), and Commonwealth v. Jackson, supra at 325-326, are likely to call into question the voluntariness of everything the defendant thereafter says. Here, however, Cummings never gave the defendant a promise of leniency, either express or implied, nor did he trick the defendant into reversing a decision to remain silent or to request counsel.

If and to the extent that Cummings employed trickery with his “off-the-record” assurance, then, the case is similar to others in which, given the totality of the circumstances, the deception did not make the defendant’s statements involuntary. Such cases include those in which the court found a defendant’s statements to be voluntary although police suggested he should “tell ‘his side of the story.’ ” \ Even in cases where police made more egregiously false statements or falsely implied, for example, that a defendant’s fingerprints or handprints were found at a crime scene, the court has found that the defendant’s statements were voluntary in light of the totality of the circumstances. In each case, the question is whether the police conduct coerced the resulting statement, not whether their conduct was congruent with some abstract level of propriety

On this record, none of the motion judge’s factual findings was clearly erroneous and his legal analysis was correct. There is no basis, therefore, for upsetting his ultimate finding that none of the statements the defendant made to Cummings was involuntary, and the motion to suppress was properly denied.

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Supreme Court Finds Against Right to Privacy in Department Issued Pagers

On June 17, 2010 in City of Ontario v. Quon, 08-1332 (FEDSC) The Supreme Court ruled against an Ontario Califormia Police Officer in his claim that he had a reasonable expectation of privacy that was violated by the Departments audit of his department issued pager.

In deciding the case the court stated “This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). Though the case touches issues of far-reaching significance, the Court concludes it can be re solved by settled principles determining when a search is reasonable.

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment, ” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra,at 357. The Court has held that the “‘special needs’” of the workplace justify one such exception. O’Connor, 480 U.S., at 725 (plurality opinion); id., at 732 (Scalia, J., concurring in judgment); Von Raab, 489 U.S., at 666–667.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct, ” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’ ” and if ” ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the cir¬cumstances giving rise to the search. 480 U.S., at 725– 726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related pur pose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was suffi cient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F.3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “‘excessively intrusive.’” O’Connor, supra, at 726 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the char acter limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon re dacted all messages Quon sent while off duty, a measure which reduced the intrusiveness ofany further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671; cf. Vernonia School Dist. 47J v. Ac ton, 515 U.S. 646, 654–657 (1995). Even if he could as sume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound manage ment principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises-and given that Quon had re ceived no assurances of privacy-Quon could have antici pated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his per sonal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreason able, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.
The Court of Appeals erred in finding the search unrea sonable. It pointed to a “host of simple ways to verify the efficacy of the 25, 000 character limit . . . without intruding on [respondents'] Fourth Amendment rights.” 529 F.3d, at 909. The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communica tions, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” Ibid.

This approach was inconsistent with controlling prece dents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reason able under the Fourth Amendment.” Vernonia, supra, at 663; see also, e.g., Board of Ed. ofIndependent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 837 (2002); Illinois v. Lafayette, 462 U.S. 640, 647 (1983). That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers, ” United States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the govern ment might have been accomplished, ” Skinner, 489 U.S., at 629, n. 9 (internal quotation marks and brackets omit ted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assum ing there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.

Respondents argue that the search was per se unrea sonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U.S. 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U.S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s gar bage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The other wise reasonable search by OPD is not rendered unreason able by the assumption that Arch Wireless violated the SCA by turning over the transcripts.

Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U.S., at 726. For these same reasons-that the employer had a legitimate reason for the search, and that the search was not excessively intru sive in light of that justification-the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not vio late Quon’s Fourth Amendment rights.”

Commentary,

Take this case, and also take into account COMMONWEALTH vs. JOHN EASON. 427 Mass. 595 (1998) which stated that there is no expectation of privacy in a telephone conversation. The fact that it was a department issued pager weighed heavily hear, and as for the claims of the other parties that they had a reasonable expectation of privacy in texts they sent to him, just refer back to Eason in Massachusetts to get a clear answer to that. Eason stated ” This court stated that any expectation of privacy in a telephone conversation is not objectively reasonable, because a person is not reasonably entitled to assume that no one is listening in on an extension telephone; consequently, at the retrial of an indictment, testimony of police officers, concerning telephone conversations they monitored on a telephone extension without a warrant but with the consent of a party who telephoned the defendant at the officers’ request, will be admissible in evidence.” In other words, once you put it out there, its unreasonable to believe the person receiving it would not be allowed to share it with others absent some specific agreement.

Attorney Ronald A. Sellon

Posted in Criminal Law & Procedure, General, Mass. Labor Law News & Cases | Leave a comment

Civil Service Commission upholds termination of Westfield police officer for untruthfulness

The following article contains the basic decision made by the Civil Service Commission. Citations were omitted and tenses changed to allow for easier reading. The entire decision may be found by clicking here.

The Appellant, Thomas Desharnias, pursuant to G.L. c. 31, § 43, is appealing the decision of the City of Westfield Police Commission to terminate him from his position as a police officer for untruthfulness and conducting unbecoming an officer.

The appeal was filed with the Civil Service Commission on November 16, 2009.

The Appellant is a forty-five (45) year-old male. He and his wife reside in Westfield. They have six (6) children ranging in ages from 11 to 22. He is a veteran of the United States Army and served in Iraq in 1990 – 1991 as part of Operation Desert Storm.

The Appellant was a tenured civil service employee in the Westfield Police Department prior to being terminated on November 12, 2009. He had been employed as a police officer in Westfield since July 15, 1996. The Westfield Police Commission is the Appointing Authority for police officers.

When first hired in 1996, the Appellant served as a dispatcher until the City eventually hired civilian dispatchers. Thereafter, he worked the 12:00 Midnight to 8:00 A.M. shift for five (5) years.

During this five (5) year period, the Appellant became certified as a Drug Abuse Resistance Education (D.A.R.E.) officer. In this capacity, he worked with schools to promote this program until it was discontinued as a result of state budget cuts.

In 2002 or 2003, the Appellant began working the 4:00 P.M. to 12:00 Midnight shift.

The Appellant has no prior record of discipline and has been recognized for his work as a police officer. In 2001, Chief Camerota awarded the Appellant the “Police Star”, the highest honor in the Police Department, for his bravery in removing a trapped and unconscious driver from a burning car.

In September 2007, the Appellant was assigned to take over the Westfield Police “Explorer Program”, a program designed to mentor young people with an interest in

law enforcement about the duties and responsibilities of police officers. In this capacity, the Appellant re-built the program through increased recruitment and fundraising.

Explorers participate in providing security for such events as Taste of the World, the Arts Festival, and soccer matches. Members were also organized to participate in “tobacco stings” and other policing activities. Meetings were scheduled for training in police procedures, and the Police Explorers participated in national competitions.

The Appellant organized the Explorers into a hierarchy of ranks, with a lieutenant as the highest rank, followed by two sergeants.

The Explorers’ lieutenant at the time of the subject incident of this appeal occurred (October 4, 2009) was Heather, a 17 year old high school student, whom the Appellant appointed to this position only a couple of months earlier. Heather had been a member of the Police Explorers for approximately two years, and served as a Sergeant prior to being “promoted” to lieutenant.

On numerous occasions, the Appellant took Explorers, including Heather, on “ride- alongs” for purposes of observation and training.

On Sunday, October 4, 2009, the Appellant was working his regular 4:00 P.M. to 12:00 Midnight shift. Heather was scheduled to participate in a ride-along with the Appellant. The Appellant was driving police cruiser #7. He did not conduct a visual inspection of the vehicle prior to leaving the station nor did the officer who used the vehicle prior to him. The Appellant, with Heather as a passenger, drove cruiser #7 to Union Street in Westfield where a salt barn is located and set up radar. The Appellant stopped two (2) vehicles and issued verbal warnings.

It is undisputed that after completing the radar duties, the Appellant eventually drove into the salt barn on two (2) occasions.

In regard to what occurred while the Appellant was driving into and through the salt barn, the Commission credited the testimony of Heather. For reasons discussed in more detail below, she initially lied to police investigators about what occurred because she felt pressured to do so by the Appellant who had put her in a “tough spot”. In her testimony before the Commission, she acknowledged that this was a mistake. She ultimately set the record straight with police investigators after speaking with her mother. She was soft-spoken and appeared to be somewhat nervous testifying in a formal setting in which the Appellant was present. She appeared to understand the gravity of her sworn testimony before the Commission, however, and was a good witness. She listened carefully to the questions posed to her and appeared intent on ensuring that her testimony was accurate and limited only to what she saw and heard.

On the first occasion when the Appellant drove the cruiser into the salt barn, he “drove really fast and did spins”. The cruiser was “sliding and spinning”. On this first occasion, the Appellant did not hit anything in the salt barn with the cruiser. Later that evening, the Appellant drove back to the salt barn and told Heather that he wanted to do it again because it was his “favorite thing to do”.

On the second occasion when the Appellant drove the cruiser into the salt barn, the

Appellant was again doing “spins” while driving very fast. At one point, he “slammed on the brakes” and “slid into a salt pile that was on the side.” Heather felt the right side of the car “tap” the salt pile. The Appellant slowed down, straightened out the cruiser and then left the salt barn. The Appellant did not say anything to Heather as this occurred.

Although the Appellant acknowledges that he was acting “cowboy-ish” on a slow night, he maintains that he was performing “controlled spins” in the salt barn, that there was no aspect of recklessness to his operation of the vehicle, and that he never suspected that the cruiser made contact with anything, including a salt pile, in the salt barn.

On the morning of October 5, 2009 at approximately 8:00 a.m., Police Sergeant Brian Boldini was called by Police Officer Gamache to observe damage to Westfield Police cruiser #7. Boldini is assigned to the Westfield Traffic Bureau and is the police officer responsible for maintenance of all police vehicles. Police policy on cruiser maintenance requires officers to inspect their cruiser both prior to and at the end of their shift.

After receiving the above referenced call from Gamache, Boldini observed that cruiser #7 was damaged in the manner stipulated thereto. The salt on cruiser #7 was the same kind of salt located at a salt barn located on Union Street in Westfield, MA.

Boldini checked the vehicle key log and found that the Appellant was the last officer to use cruiser #7. At 10:48 a.m. on October 5, 2009, Boldini sent an e-mail to the Appellant (a) stating that the Appellant signed out cruiser #7 on October 4, 2009 at 16:00 hours and (b) requesting that the Appellant contact him [Boldini] regarding the damage to cruiser #7.

Also on the morning of October 5, 2009, Murphy and Gamache notified the Appellant’s supervisor, Police Sergeant Stephen Dickinson, of the fact that cruiser #7 was damaged as shown in the picture. Dickinson viewed said damage. Boldini notified Dickinson that the Appellant was the last officer to use cruiser #7. After being notified that the Appellant was the last known operator of cruiser #7, Dickinson called the Appellant shortly after 11:00 a.m. on October 5, 2009.

During the phone conversation, Dickinson asked the Appellant if he took out cruiser #7 and the Appellant responded that he took said cruiser out at 4:00 p.m. on October 4, 2009; that he picked up Heather; that he performed traffic enforcement on Union Street near the salt piles until 8:00 p.m. at which time he dropped Heather off at the police station; and that he proceeded to the Powdermill Village until 10:00 p.m. at which time he brought cruiser #7 back to the police station. Dickinson then asked the Appellant if he was involved in an accident or whether he bumped into anything with cruiser #7. The Appellant replied “no”.

Dickinson believed the Appellant’s answer and at 2:34 p.m. on October 5, 2009, Boldini sent an e-mail to all personnel asking if anyone was driving in the area of the salt pile on Union Street. There was no response to Boldini’s e-mail to all personnel. When there was no response to Boldini’s e-mails, Captain Michael McCabe and Dickinson, at separate times asked Detective Todd Edwards to view the videotape of the police parking lot. On October 5, 2009, Edwards viewed videotape footage of the police parking lot from 8:00 a.m. October 4, 2009 to 7:00 a.m. October 5, 2009. Edwards is responsible for maintaining the police videotape system. Edwards observed Lt. Lawrence Valliere take cruiser #7 at noon on October 4, 2009 and return said cruiser at approximately 12:50 P.M. Edwards observed that Valliere did not inspect said cruiser before taking it. Edwards observed no damage to cruiser #7 upon Valliere’s return. Edwards observed the Appellant driving cruiser #7 out of the police parking lot at 4:00 P.M. on October 4, 2009, and Edwards also observed Heather getting into cruiser #7 with the Appellant. Edwards observed that the Appellant returned cruiser #7 at approximately 10:00 P.M. on October 4, 2009. Edwards could not discern whether there was damage due to darkness. Edwards observed that the Appellant did not inspect the vehicle prior to and after his shift. Edwards observed that cruiser #7 was not moved from 10:00 p.m. on October 4, 2009 through 7:00 a.m. on October 5, 2009. Edwards informed Dickinson of this fact on October 5, 2009.

After being told by Boldini that the Appellant was the last person to take cruiser #7 and being told by Edwards that said cruiser was not moved after the Appellant returned said cruiser, Dickinson made a second call to the Appellant. Dickinson asked the Appellant whether he was sure that nothing happened when he had cruiser #7. Dickinson asked the Appellant if maybe he bumped into something accidentally or took off quickly. The Appellant stated that nothing happened and that he simply performed traffic enforcement on Union Street.  After talking with Dickinson on Monday, October 5th, the Appellant placed a phone call to Heather while she was at school. Heather and the Appellant offered divergent testimony regarding what was said during that phone call.

The Appellant testified that since he planned on calling Heather in any event to confer about the upcoming week of events, he decided to take the opportunity to confirm that nothing had happened to the vehicle the previous evening. According to the Appellant, he asked Heather whether at any time the previous evening, “did anybody hit us? Did we back into anything? When I was out of the cruiser, when I left you in the car, did someone bump into us from behind, anything like that?” According to the Appellant, Heather responded by saying that no, they were not in an accident.

The Appellant testified that, based on Heather’s answers, he then said to her: “ … well, if anyone calls you, if Steve calls you, tell – you know tell him we weren’t involved in an accident or, you know, we didn’t damage the car. Obviously, you don’t have to tell him that I did – that I went into the barn and spun around with you in the cruiser. You don’t have to offer him – you know, don’t tell him that.”

Heather’s testimony is markedly different than the Appellant’s. According to Heather, the Appellant did not call her to discuss Explorer business. He called her at school and asked her if Sergeant Dickinson had called her and she said no. The Appellant then told Heather, “If he does and if he’s joking around or anything, nothing happened during the ride-along or [you] don’t know anything.” Heather testified that she “just agreed with him,” but “felt like something was going on” and wanted to “know why he was telling me that.”

The Commission credited the testimony of Heather regarding the phone conversation between her and the Appellant on October 5th. The Appellant’s insistence that the primary purpose of the call was to discuss Explorer business is not credible. Moreover, Heather’s version of what was said during that phone conversation rang true to me, but the Appellant’s did not. Shortly after speaking with the Appellant, Heather received a call from Sergeant Dickinson who asked her what happened during her ride along with the Appellant. Heather replied that they ran radar on Union Street, during which time, they stopped two (2) vehicles; one while driving on Union Street and the other while they were parked at the salt piles on Union Street. Dickinson asked Heather whether they may have bumped into something at the salt piles and Heather replied “not that she was aware of.” Because of Heather’s qualified statement, Dickinson met with the Appellant in person at the Powdermill Village Office, at approximately 4:00 p.m. on October 5, 2009, to make a third inquiry regarding the damage to cruiser #7.

Dickinson asked the Appellant whether he remembered bumping into anything with cruiser #7 and again the Appellant responded “No”. Dickinson asked the Appellant if he noticed the condition of cruiser #7 and the Appellant said that the car was filthy but that he was not going to clean it.

At approximately 8:30 P.M. on October 5, 2009, Dickinson spoke with Heather in person and asked if she was aware of the condition of cruiser #7 when she went for a ride-along with the Appellant and Heather said “No”. Heather also responded that she was not aware of any accidental bumping or spraying of salt; and that if something did happen she did not know. Dickinson concluded that he was not getting all of the information regarding what happened on Heather’s ride-along with the Appellant on October 4, 2009. On October 6, 2009, Dickinson submitted his report to Captain Michael McCabe explaining the details of his investigation into the damage to cruiser #7. Sergeant Dickinson was a good witness and I credit his testimony. His answers were responsive to the questions posed to him and he had a good recollection of events, when they occurred and what was said during the various conversations referenced above. Further, he appears to have no ulterior motive for testifying against the Appellant, whom he described as a hard working officer who has done an outstanding job.

On October 6, 2009, after reviewing Dickinson’s report, McCabe questioned two of the three officers that used cruiser #7 from the period of October 3, 2009 and October 5, 2009; those officers being LaValley and Lieutenant Valliere.

Both LaValley and Valliere told McCabe that they had not damaged cruiser #7.

At approximately 3:00 P.M. on October 6, 2009, McCabe visited the Tekoa Country Club to speak with Heather regarding the damage to the cruiser. Heather told McCabe that she did not remember hitting anything but that she could not be sure.

After making these statements to McCabe, Heather called her mother and sought her advice. After talking with her mother, Heather called Dickinson and told him that, while she was in cruiser #7, the Appellant drove said cruiser into the salt barn on Union Street and drove the car pretty fast and then stepped on the brakes thereby making the cruiser spin out on the salt and hitting or tapping a salt pile. Heather also told Dickinson about the Appellant’s phone call to her the day before. After Heather divulged this information to Dickinson, Dickinson (per McCabe’s instruction) asked Heather to come to the Police Department to make a written statement, which she did. Heather testified that if the Appellant had not influenced her otherwise that she would have initially divulged what she knew regarding the damage to cruiser #7.

On or about October 15, 2009, McCabe met with the Appellant, in the presence of the Appellant’s counsel at the time. According to McCabe, he asked the Appellant the following questions and received the following responses:

␣ McCabe: Are you responsible for the damage to car 7? ␣ Appellant: No ␣ McCabe: Are there any circumstances that you can think of that would cause the damage to car 7? ␣ Appellant: No ␣ McCabe: Could any of your driving activities have led to the damage to Car 7? ␣ Appellant: No

McCabe then told the Appellant that this was not the conclusion that he (McCabe) had drawn after looking at the damage to the vehicle and talking to Heather. McCabe then asked the Appellant to describe his driving activities on the night in question. The Appellant responded by saying that he ran radar and that there was “nothing out of the ordinary” that night. McCabe then asked the Appellant if he did any “spins” or erratic driving in the salt barn or the storage location that night. When the Appellant “basically didn’t answer the question”, [McCabe] pointed out that Heather said he had been doing “doughnuts” in the salt barn that night. McCabe then asked the Appellant if that could have possibly caused the damage and the Appellant said, “no”.

During the same discussion, the Appellant initially told McCabe that he never called Heather. Several minutes later, the Appellant contradicted himself and said that he [Appellant] called Heather on Explorer business.

On or about October 15, 2009, McCabe prepared a report which he submitted to Police Chief John Camerota indicating his [McCabe’s] findings that the Appellant had violated numerous provisions of the Westfield Police Rules and Regulations, including but not limited to, Rule 5.2 Truthfulness and Rule 2.3 Conduct Unbecoming an Officer.

McCabe stated that he believed that the Appellant knew that his driving actions caused the damage to cruiser #7 and that the Appellant never disclosed his driving actions to Dickinson despite the fact he was asked on three (3) separate occasions. McCabe also stated his belief that the Appellant’s conduct of calling Heather and asking her not to say anything to Dickinson about the Appellant’s driving of the car on the night in question was particularly egregious given that the Appellant had charge of the Explorer group and is supposed to be a role model for explorers.

Captain McCabe was also a good witness and the Commission credited his testimony. He has over twenty-five (25) years of experience with the Westfield Police Department and has completed dozens of internal investigations. He had a good recollection of events and was able to provide detailed answers that rang true to me. Although he stated during cross examination that he had previously questioned the Appellant’s honesty as a result of prior charges against the Appellant (none of which were sustained), the Commission did not believe that it influenced his investigation of this matter and/or his conclusions.

After reviewing reports from Dickinson and McCabe, Camerota believed that a charge of untruthfulness existed, and that the charge was beyond his level of disciplinary authority.

As a result, Camerota sent written notice to the Appellant dated October 27, 2009 stating that a hearing was scheduled for November 9, 2009 before the Appointing Authority to address the investigation completed by McCabe and submitted by Camerota and determine any discipline.  Enclosed with said written notice was a copy of McCabe’s report. The Appellant filed an appeal alleging that the Appointing Authority failed to comply with G.L. c. 31, §42. Such appeal was dismissed by vote of the Commission on January 7, 2010.

The Appointing Authority conducted a disciplinary hearing on November 9, 2009 and the Appellant was present with legal counsel. Camerota informed the Appointing Authority of his opinion [Camerota’s] that the Appellant’s lack of truthfulness during the course of the police investigation into the damage of cruiser #7, together with the fact that the Appellant called Heather to instruct and/or influence her not to divulge what she knew as how said cruiser was damaged, rose to the level of termination.

On November 12, 2009, the Police Commission sent its decision to the Appellant notifying him of his termination. The letter stated in relevant part:

“The reasons for this decision to terminate your employment are your violations of:

1.      Section 5.2 of the Police Rules and Regulations requiring that police officers be truthful; and

2.      Section 2.3 of the Police Rules and Regulations regarding Conduct Unbecoming a Police Officer.

This Commission has found that you were not truthful during the course of a police investigation regarding damage to police cruiser 7 that occurred on October 4, 2009 and that you engaged in conduct unbecoming an officer when you contacted the female 18 year old police explorer (who was riding with you on that date) and requested, instructed, and/or otherwise influenced her not to cooperate with or divulge information to the officers investigating the damage to said police cruiser.”

CONCLUSION

G.L. c. 31, § 43, provides:

“If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority’s procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained, and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority.”

An action is “justified” if it is “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law.” The Commission determines justification for discipline by inquiring, “whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of public service.” The Appointing Authority’s burden of proof by a preponderance of the evidence is satisfied “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.”

“The commission’s task…is not to be accomplished on a wholly blank slate. After making its de novo findings of fact . . . the commission does not act without regard to the previous decision of the [appointing authority], but rather decides whether ‘there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision’”, which may include an adverse inference against a complainant who fails to testify at the hearing before the appointing authority.

Under Section 43, the Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” The role of the Commission is to determine “whether the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority.”

By a preponderance of the evidence, the Appointing Authority has shown that it had reasonable justification for disciplining the Appellant for untruthfulness and conduct unbecoming a police officer. I base this conclusion largely on the credible testimony of the City’s witnesses, including Heather, the 17-year old police “explorer”. It is the function of the hearing officer to determine the credibility of the testimony presented before him.

The Appellant, the father of six (6) children, is a war veteran who has served our country with distinction. For that, he has this Commissioner’s admiration and gratitude. That distinguished military service, however, and his commendations for bravery as a member of the Westfield Police Department, do not exempt him from the professional standards of conduct expected of all police officers.

On the evening of Sunday, October 4, 2009, the Appellant had arranged for Heather, a 17-year old member of the high school “Explorer” program, to join him on a “ride-a- long”. The Appellant was justifiably proud of his efforts to rebuild the local Explorer program. Over a period of several months, he had recruited additional student members, bolstered the group’s fundraising and re-instituted meetings and other activities such as ride-a-longs.

Most of the October 4th ride-along was routine and uneventful, including two (2) traffic stops at which the Appellant gave verbal warnings to motorists. On two (2) different occasions that night, however, the Appellant inexplicably engaged in reckless behavior, by driving his cruiser into a salt barn and performing “spins” or “doughnuts”. Even the Appellant acknowledges he was behaving in a “cowboy-ish” manner. That reckless behavior, however, was not the basis of the Appellant’s termination. In fact, there is little doubt that his behavior in the salt barn that night, alone, likely would have resulted in nothing more than a relatively minor disciplinary action against him. The basis for termination was the Appellant’s subsequent untruthful statements regarding what occurred on the night of October 4th (untruthfulness) and his attempt to discourage the 17-year old Explorer from providing accurate information to police investigators (conduct unbecoming an officer).

On the second charge, even the Appellant acknowledges that he contacted Heather while she was at school after he learned that questions were being raised about what occurred on the night of October 4th. He acknowledges telling Heather during that conversation, “ … you don’t have to tell him that I did – that I went into the barn and spun around with you in the cruiser. You don’t have to offer him – you know, don’t tell him that.” Even if I were to accept the Appellant’s version of this conversation, which I do not, his admitted statements constitute conduct unbecoming an officer. That the Appellant, a 45-year old police officer, who was in charge of the Explorer program, advised a 17-year old high school student to withhold information during a police investigation in order to avoid potential discipline, is unconscionable.

In regard to the charge of untruthfulness, the Appellant maintains that since he was not aware that the cruiser was damaged or whether he actually caused the damage, that his statements denying any responsibility for such damage were truthful. Unfortunately for the Appellant, his untruthfulness pervaded the entire investigation, and was not strictly limited to his answer to the question of whether or not he damaged the cruiser.

Even after the Appellant was aware that questions were being raised regarding what occurred on October 4th, the Appellant, during a second phone call with Sergeant Dickinson, told Dickinson that nothing happened and that he simply performed traffic enforcement on Union Street on October 4th.

The Appellant was subsequently asked a series of open-ended questions about the night of October 4th by Captain McCabe, including: 1) Are there any circumstances that you can think of that would cause the damage to car 7; and 2) Could any of your driving activities have led to the damage to Car 7? Each time, the Appellant stated “no” and failed to mention that he performed “spins” and “doughnuts” in the salt barn (which he had asked Heather to conceal). Even after being told that Heather had provided a conflicting story, the Appellant, when asked to describe his driving activities on the night in question by Captain McCabe, stated that “nothing out of the ordinary” occurred that night.

During the same discussion, the Appellant initially told McCabe that he never called Heather. Several minutes later, the Appellant contradicted himself and said that he [Appellant] called Heather on Explorer business.

All of the above-referenced statements by the Appellant demonstrate that he was untruthful during a police investigation. An appointing authority is well within its rights to take disciplinary action when a police officer has “a demonstrated willingness to fudge the truth in exigent circumstances” because “[p]olice work frequently calls upon officers to speak the truth when doing so might put into question a search or embarrass a fellow officer.”

The Commission has stated that “it is well settled that police officers voluntarily undertake to adhere to a higher standard of conduct than that imposed on ordinary citizens.” Specifically, there “is a strong public policy against employing police officers who are untruthful.” Therefore, “a police officer that has lost his credibility can no longer effectively perform the duties of the position.” As a result, the Commission has often upheld a police officer’s discharge based upon the officer’s dishonesty.

Having determined that it was appropriate to discipline the Appellant, the Commission must determine if the City was justified in the level of discipline imposed, which, in this case, was termination.

The Commission is guided by “the principle of uniformity and the ‘equitable treatment of similarly situated individuals’ [both within and across different appointing authorities]” as well as the “underlying purpose of the civil service system ‘to guard against political considerations, favoritism and bias in governmental employment decisions.’ ” Even if there are past instances where other employees received more lenient sanctions for similar misconduct, however, the Commission is not charged with a duty to fine-tune employees’ suspensions to ensure perfect uniformity.

“The ‘power accorded the commission to modify penalties must not be confused with the power to impose penalties ab initio, which is a power accorded the appointing authority.’ Unless the Commission’s findings of fact differ significantly from those reported by the appointing authority or interpret the relevant law in a substantially different way, the commission is not free to “substitute its judgment” for that of the appointing authority, and “cannot modify a penalty on the basis of essentially similar fact finding without an adequate explanation.

I have, based on the testimony of credible witnesses and the documentary evidence submitted, reached essentially the same findings as the City. Specifically, I have found that the Appellant engaged in conduct unbecoming an officer and that he was untruthful as part of a police investigation.

Although the Appellant has no prior disciplinary history, that does not warrant the Commission’s intervention in terms of a modified penalty. The serious nature of the charges, including untruthfulness, warrants the discipline imposed by the City – termination.

For all of the above reasons, the Appellant’s appeal under D1-09-406 is hereby dismissed.

-Attorney John J. Maclaughlan

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Civil Service Upholds Medford Bypass of Candidate for Police

The Civil Service Commission upheld the bypass of a candidate for full time Police Officer by the City of Medford in MICHAEL MONAGLE, Appellant v. CITY OF MEDFORD POLICE DEPARTMENT CASE NO: G1-08-56. The City had previously bypassed the candidate for the position of firefighter but lost that appeal.

In deciding the case the Commission stated “The Commission concludes that the MPD has met its burden to establish that “sound and sufficient” reasons justify bypassing Mr. Monagle for appointment as a MPD Police Officer, supported by substantial evidence in the record and application of correct principles of law. Although the MPD was not justified to bypass Mr. Monagle solely based on his interview performance and stale criminal and driving records largely indistinguishable from those of other selected candidates, the MPD did justify its conclusion that Mr. Monagle has not reasonably satisfied the MPD that he has put behind him his past pattern of aggressive behavior in confrontational situations, as evidenced by the fight in July 2006 and his lack of candor in how he responded to the police at the scene and in his testimony.

Mr. Monagle’s Interview Performance
Although the selection process was fair to Mr. Monagle, it does not necessarily follow that MDP proved his bypass was justified by an allegedly poor interview performance. As the Findings of Fact stated, in view of the incomplete records of the interview ranking of the 2007 selected candidates, taken together with Mr. Monagle’s interview ratings of “Acceptable” or better, and the positive testimony by Capt. Clemente that Mr. Monagle gave a generally good interview (contradicting certain of his earlier statements made to HRD in justification of the bypass), the Commission agrees with the Appellant that this record is simply too inconclusive and insufficient to warrant a determination that Mr. Monagle’s interview performance adequately distinguished him from the performances of all six other candidates who bypassed him.
Mr. Monagle’s Driving & Criminal Record
The Commission also accepts the Appellant’s contention that the MPD did not establish that Mr. Monagle’s past criminal and driving record disqualifies him. As set forth in the Findings of Fact, it is hard to justify the MPD’s distinction between Mr. Monagle’s fitness as a police officer from at least three successful candidates based on their respective, similarly stale driving records. In particular, the MPD inexplicably overlooked one selected candidate’s two speeding offenses and five at-fault accidents
over an eight year period, which would appear far more problematic to the fitness to become a police officer as Mr. Monagle’s one responsible speeding violation and a total of two earlier unfounded citations for which he was found not responsible. Similarly, Mr. Monagle’s CWOF on a minor transporting alcohol charge, was the same juvenile offense committed by another successful candidate who was selected but whose record Capt. Clemente overlooked. All other criminal charges against Mr. Monagle were dismissed, most were juvenile offenses, and all of them pre-dated his undisputed honorable military service which Capt. Clemente testified was an important consideration. In sum, for reasons similar to those found persuasive in the earlier bypass of Mr. Monagle by the Medford Fire Dept., the Commission concludes that the MPD has not established by a preponderance of substantial evidence how it distinguishes Mr. Monagle’s paper record of offenses for purposes of assessing his present fitness for appointment as a police officer from the other similar records of selected candidates and how such relatively stale disciplinary records are relevant to one candidate’s present fitness to perform but not another’s. See Monagle v. City of Medford, 21 MCSR 437 (2008), citing, Halliday v. Boston Police Dep’t, 8 MCSR 45 (1997) (“Most of the motor vehicle violations occurred while the Appellant was a teenager or n his early 20s. In any event, only one violation exists within the last 5 years, and Appellant had a credible explanation of the incident.”)
Mr. Monagle’s History of Violence
The MPD’s final reason for bypassing Mr. Monagle was its concern that he had a record of involvement in multiple incidents that suggested he was inclined toward “solving problems with his fists”, which is clearly not an appropriate trait to be carrying into a career as a police officer. The credible history of such risky behavior is sufficientPolice Dep’tto justify his bypass. See, e.g., See, e.g., Preece v. Department of Correction, 20 MCSR 153 (2007), aff’d sub nom, Preece v. Massachusetts Civil Service Comm’n, Bristol C.A. BRCV2007-00510 (Mass.Sup.Ct. July 16, 2008) (credible and reliable evidence supporting the serious felony charges for which applicant was indicted, although later acquitted); Nahim v. Boston Police Dep’t, 20 MCSR 232 (2007) (assault and battery, coupled with subsequent domestic abuse restraining order and “lengthy” history of driving offenses, for which applicant failed to accept responsibility); Thames v. Boston , 17 MCSR 125 (2004) (applicant’s “extensive criminal history” and “further evidence of [violent] tendency in the statements appellant himself included in his application”); Tracy v. City of Cambridge, 13 MCSR 26 (2000)(additional evidence in form of police reports and appellant’s admissions); Lavaud v. Boston Police Dep’t, 12 MCSR 236 (1999) (multiple charges within preceding five years, including two incidents of insurance fraud and unlawful possession of and concealment of a firearm).
Mr. Monagle did provide a reasonable explanation that would seem to warrant discounting some of his past alleged violent behavior (he admitted his responsibility for getting into fist fights as a juvenile in 1994 and justified his use force in a bar fight in 1999 as self-defense). However, Mr. Monagle’s past history of verbal and physical confrontation with the MPD in 1999 following his stop and subsequent arrest on an allegedly DWI remained a legitimate red flag. No matter how unjustified Mr. Monagle believed the MPD had treated him and his younger brother, the credible evidence (including Mr. Monagle’s admissions about his behavior) demonstrated a lack of self-control and respect for law enforcement that is clearly unacceptable in a police officerwho must be expected to exercise good judgment and quick thinking so as to diffuse aggressive, confrontational situations, rather than escalate them.
The Commission does give credit to Mr. Monagle’s testimony that his military service had a positive and maturing effect on him, and has taught him the importance of responsible behavior. Indeed, had his 1999 confrontation with the MPD been the last incident, the Mr. Monagle might well have a credible explanation that his fighting days were behind him, and that incident should not stand in the way of derailing his opportunity to serve as a police officer. See Ramirez v. Springfield Police Dep’t, 10 MCSR 256 (1997) (noting that although pending bypass was justified, appointing authority may be required to provide additional reasons in any future by-pass of appellant based on the same prior criminal record to rebut appellant’s claim of subsequent rehabilitation); Radley v. Brookline Police Dep’t, 10 MCSR 289 (1997) (noting appellant’s “redeeming factors must be given added weight” and “past indiscretions should play a lessened role”)
Unfortunately, despite a positive military record and other extenuating circumstances, there exists sufficient credible evidence that, as of 2006 and 2007, Mr. Monagle still remained at risk for use of excessive force in a confrontational situation, as evidenced by the most recent fight in which he engaged in the early morning hours of July 4-5, 2006. Moreover, the evidence as a whole, including his simplistic explanation to the police that everything was “over” and his professed ignorance about details of the incident that he could reasonably be expected to know, reflects a troubling lack of responsibility and forthcoming that the MPD could rightly consider in deciding whether his was a suitable candidate for selection as a police officer. The Commission is satisfied that the MPDproperly exercised sound discretion in weighing Mr. Monagle’s questionable behavior in 1999, as reinforced by his behavior in the 2006 incident, and, despite other evidence that might suggest the contrary, was justified to reach the conclusion that Mr. Monagle presented an unacceptable risk that was unsuitable to serve as an MPD Police Officer at the time of his bypass in 2007.

In reaching this conclusion the Commission has taken into account the case law that imposes special obligations upon police officers, who carry a badge and a gun and all of the authority that accompanies them, and which requires police officers to comport themselves in an exemplary fashion, especially when it comes to exhibiting self control and to refrain from unjustified threatening and intimidating conduct and use of force.

“[P]olice officers voluntarily undertake to adhere to a higher standard of conduct . . . . Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. . . . they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.”
Attorney General v. McHatton, 428 Mass. 790, 793-74 (1999) and cases cited. See also,
Falmouth v. Civil Service Commission, 61 Mass.App.Ct. 796, 801-802 (2004).

Thus, having established by a preponderance of the evidence that one of the main reasons for bypassing him was justified, the MPD acted appropriately in declining to appoint Mr. Monagle to the MPD.
Accordingly, for the reasons stated above, the appeal of the Appellant, Michael Monagle, is hereby dismissed”

Attorney Ronald A. Sellon

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Malicious Damage Conviction Overturned

In an unpublished opinion the Appeals court on June 8, 2010 struck down a conviction of Malicious destruction of property over $250 in COMMONWEALTH vs. ROSALIE A. PIMENTEL 09-P-557 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In deciding the case the court stated “The Commonwealth concedes that it failed to introduce evidence at trial of the windows’ replacement cost. Accordingly, the evidence was insufficient, and the defendant’s conviction must be reduced to malicious destruction of property under $250. See Commonwealth v. Kirker,441 Mass. 226, 229 (2004). It does not follow, however, that restitution must be similarly capped at $250.

Following a criminal conviction, restitution may be imposed for ‘economic losses caused by the defendant’s conduct and documented by the victim.’Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002). The procedure must be ‘fair and reasonable,’ and the defendant ‘must have an opportunity to be heard and to cross-examine witnesses.’ Ibid., citing Commonwealth v. Nawn, 394 Mass. 1, 6-7 (1985). In determining appropriate restitution, ‘we look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted, or] to which the defendant entered a plea.’ Commonwealth v. McIntyre, supra at 835 (citation omitted). The Commonwealth bears the burden of ‘proving the amount of the loss by a preponderance of the evidence.’ See id. at 834. We review the trial judge’s assessment of restitution for an abuse of discretion or other error of law. See id. at 836. We discern neither in the restitution ordered here. In Commonwealth v. McIntyre, the defendant was convicted of assault and battery by means of a dangerous weapon. Id. at 831. Although his convictions were not based on the destruction of property, there was ‘no question that the damage to the victim’s car occurred during the course of an ongoing assault.’ Id. at 836. Because there was a ‘causal relationship between the criminal episode and the damage to the vehicle . . . the judge properly awarded restitution to cover the repairs.’ Ibid. Here, it is clear that the broken windows and smashed windshield likewise resulted ‘from the crime[s] of which the defendant was convicted.’ Ibid. There is no dispute that the defendant ‘was afforded a hearing and was able to cross-examine the witnesses against [her].’ Ibid.Thus, the only issue is whether the evidence before the judge as to repair costs was sufficient.

At the hearing, the Commonwealth submitted but did not introduce in evidence a written estimate that, while not on letterhead, contained ‘a phone number as well as a schedule of payment which include[d] the model for the windows, the warranties, [and] some specifics.’ Although the defendant was ‘entitled to rebut the victim’s estimate of the injury with [her] own experts or witnesses,’ she failed to do so. Id. at 834. Instead, the defendant now attacks the Commonwealth’s failure to comply with the formal rules of evidence in proving the amount. It was not required to do so, however, since there is ‘no requirement that strict evidentiary rules apply at restitution hearings.’ Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 755 (2006). ‘[A] restitution hearing must be flexible in nature and all reliable evidence should be considered.’ Id. at 756. ‘[H]earsay, if reliable, is admissible to carry the Commonwealth’s burden at a restitution hearing.’ Ibid. The written estimate was properly put before the judge, and we discern no abuse of discretion in his reliance upon it when setting the amount of restitution.

The defendant also claims error in the prosecutor’s closing argument and asserts that her trial counsel was ineffective. For substantially the reasons set forth in the Commonwealth’s brief, respectively, at pages ten through fourteen and eighteen through nineteen, these contentions are unpersuasive.

The judgment on the charge of vandalism is affirmed. So much of the judgment on the charge of malicious destruction of property as determined that the property damage was over $250 is reversed and the finding is set aside; the remaining portion of that judgment, finding the defendant guilty of malicious destruction of property under $250, is affirmed and so much of the sentence on that charge as provides for restitution is to stand, however, the balance of that sentence is vacated and the case is remanded solely for resentencing in accordance with this memorandum and order”

Commentary,

rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. However, the issue of proof regarding whether the value of the item was over or under $250 again sinks a case. The simple rule to apply is: when in doubt if the item is valued over or under $250 simply charge them with G.L. 266 sect. 126a instead of sect. 127. The value of the item is not at issue in satisfying the former.

Attorney Ronald A Sellon

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Civil Service Commission upholds Corrections Officer’s firing for Domestic Assault Conviction

The following contains the basic decision made by the Civil Service Commission. Citations were omitted and tenses were changed to allow for easier reading. The full text of the decision may be found by clicking here.

The Appellant, Craig Ford, appealed the decision of the Department of Correction to terminate him from his position as a Correction Officer I for 1) his conviction for a domestic violence misdemeanor in Warren, Rhode Island; and 2) his failure to report promptly to his supervisor that he had received a restraining order ordering him to refrain from contacting or abusing his ex-wife and that he appeared in Taunton District Court on October 2, 2008.

The DOC found that the Appellant violated rules and regulations requiring all officers to “render good judgment, owe obedience to all provisions of the law. . . .” and “report promptly in writing to your superintendent, DOC Department Head . . . any involvement with law enforcement officials pertaining to any investigation, arrest or court appearance.” Also, DOC found that the Appellant violated the Department’s policy for the prohibition of domestic violence, which states that the DOC has a zero tolerance policy for domestic violence.

The appeal was filed with the Civil Service Commission on May 20, 2009.

The Appellant is a forty-three (43) year-old male. He was married to his former wife, Colleen, for eighteen and a half (18 1⁄2) years and has two children, one of whom is a full-time college student. (Testimony of Appellant)

The Appellant was a tenured civil service employee in the title of Correction Officer I at the time of his termination on May 6, 2009. He had been employed by DOC for approximately twenty-one (21) years.)

Prior Discipline

On April 13, 2004, the Appellant was reprimanded for transporting the wrong inmate to a hospital.

On October 11, 2006, the Appellant received a two-day suspension (with 1 day held in abeyance) for using profanity and being less than truthful.

On March 9, 2007, the Appellant was reprimanded for failure to provide satisfactory medical evidence.

On July 16, 2007, the Appellant was reprimanded for failure to return a set of restraints.

On February 25, 2008, the Appellant was reprimanded for leaving work sick after being drafted.

Domestic Violence Conviction

On August 2, 2008, the Appellant was arrested for “Simple Assault / Domestic” and “Disorderly Conduct” by the Warren, Rhode Island Police Department.

The charges related to allegations from the Appellant’s then-girlfriend, Lynda, that he had assaulted her.

The police incident report states:

“On 08/02/08 at 0259 hours, Ptlm. Perreault and I were dispatched to [address redacted] for a domestic that had just taken place. Upon my arrival, I was met by the complainant / victim Lynda [last name redacted]. Same stated she and her boyfriend came back to her apartment after dinner and had a physical altercation.

Lynda stated she was assaulted by her live in boyfriend Craig Ford of six months. Lynda stated after a verbal argument in the bedroom, Craig physically assaulted her before he left the apartment and fled in his vehicle.

Craig was contacted by phone and advised to report to police headquarters. Upon his arrival, he stated he never hit Lynda at any time during the events that took place. Same stated Lynda grabbed him by the arm and ripped the left side sleeve on his shirt when she pulled him up off the floor.

Photos were taken of Lynda’s injuries by Ptlw. Beaulieu. A DVSA Form was filled out and has been filed with this report. Lynda calls her boyfriend Greg, but his name is Craig. Case forwarded to C.I.B. for review regarding possible charges relative to this investigation.”

10. Lynda was interviewed by the Warren Police Department and was asked to state in her own words what happened at their residence. She stated:

“My boyfriend Greg Ford came home and walked [through] the front door. He then walked into the bedroom and laid down on the floor. I then asked him to stand up and he said no. He appeared to be highly intoxicated. When I took his keys and put them in my pocket book, he became very upset. He then got in my face and stated

“give me those fucking keys.” When I told him no, he grabbed my pocket book from me and punched me five times in the chest and legs with his fist. He then pushed me onto the bed. He then left the apartment when he saw me picking up the phone to call the police.”

The Appellant was also interviewed by the Warren Police Department and was asked to explain in his own words what occurred at the residence. He stated:

“We went out to eat and returned to the apartment. Once there I went into the bathroom. Lynda then opened the door and stated ‘If you don’t want to be with me then just leave.’ I then went into the bedroom and laid on the floor. Lynda then grabbed my shirt to get me up and ripped it. After she ripped my shirt I said ‘What the fuck, I’m out of here’ and I left.”

On November 7, 2008, the Appellant was found guilty of Simple Assault / Domestic. He was placed on probation for one (1) year; ordered to have no contact with the victim; attend a batterers’ intervention program and substance abuse counseling and pay court costs. There was an original conviction in the district court and then an appeal de novo to the superior court where the conviction was the same. The disorderly conduct charge was dismissed.

General Policy I of the DOC Rules and Regulation states in part:

“. . .Nothing in any part of these rules and regulations shall be construed to relieve an employee of his/her primary charge concerning the safe-keeping and custodial care of inmates or, from his/her constant obligation to render good judgment full and prompt obedience to all provisions of law. . . Improper conduct affecting or reflecting upon any correctional institution or the Department of Correction in any way will not be exculpated whether or not it is specifically mentioned and described in these rules and regulations. . . .”

The Department’s Policy for the Prohibition of Domestic Violence, 103 DOC 238, states in pertinent part:

“The Commonwealth has a zero-tolerance policy for domestic violence occurring within or outside the workplace . . . .” 238.01

“DOC employees shall: a. Ensure that they do not participate in any form of domestic violence, either within or outside the workplace.” 238.04

The above-referenced rules also state that: “Acts of domestic violence, regardless of where they occur, shall not be tolerated and may result in discipline, including, but not limited to: a) an oral warning; b) a written warning or reprimand to be placed in a personnel file; c) required completion of a certified batterer intervention program; d) suspension, demotion or termination; or e) any combination of the above.

The Federal Lautenberg Amendment (18 U.S.C. § 922(g)(9)) precludes individuals who have been convicted of a domestic violence misdemeanor from ever obtaining a firearm license. The Amendment states in pertinent part: It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (18 U.S.C. § 922(g)(9).

The March 20, 2010 Massachusetts Human Resources Division Open Competitive Examination Announcement Correction Officer I Department of Correction mandates in relevant part under: ENTRANCE REQUIREMENTS, Section 3: “. . .Certification as a Correction Officer requires that the applicant be able to satisfy and maintain the eligibility requirements for obtaining a license to carry a firearm. . . .”

Section IV. Examples of Duties Common to All [Correction Officer Levels] in Series of the foregoing Specifications states in pertinent part: “Performs related duties such as screening visitors; operating two-way radios; carrying and operating firearms. . .” subsection 6. (Emphasis added)

The foregoing Specifications were in effect when Appellant was appointed as a Correction Officer by the Department. (Exhibits 7 A & 8; Testimony of McInnis) 20. The June 10, 1989 Commonwealth of Massachusetts Department of Personnel

Administration Promotion to Correction Officer I State Department Of Correction examination application states in pertinent part under Note 1: “Certification as a Correction Officer requires that the applicant be able to obtain a permit to carry a firearm

The Appellant took the above examination in order to be appointed a Correction Officer I.

The Union was notified that anyone convicted of a domestic violence offense after October 23, 1997, shall be terminated from the Department and that the ability to possess a firearm is an essential job function. “Any Correction Officer . . . ‘convicted’ of a domestic violence offense, shall, after proper notice and hearing, be terminated for failure to discharge one of the essential functions of a Correction Officer.”

Although correction officers are not required to carry a firearm for normal patrol duties throughout the institution, they may be required to carry a firearm when they are assigned to tower duties or to transport inmates outside the institution when the transportation unit is busy.

The Appellant testified that he did not use a firearm while employed as a correction officer because he did not “qualify”. He did not qualify with the use of a firearm because he did not score high enough in the target shooting contest.

Failure to Promptly Report Restraining Order and Court Appearance in Taunton District Court to Supervisor

On September 18, 2008, in a separate matter from the above, the Appellant’s ex-wife obtained a temporary restraining order against him in Taunton District Court. The Appellant was not present in court when the order entered and a hearing was scheduled for October 2, 2008, when the temporary restraining order was scheduled to expire.

On October 2, 2008, the Appellant attended a hearing at the Taunton District Court. The restraining order was extended to January 5, 2009 and the order was modified to vacate those orders related to the custody and contact of the Appellant’s children.

On October 8, 2008, a member of DOC’s Domestic Violence Unit contacted the facility requesting to know if the Appellant had informed the institution that a restraining order had been issued against him.

Lieutenant Stephen Gatewood was assigned to investigate this matter.

On October 9, 2008, Gatewood received via fax the above-referenced restraining order from thee Rehobeth Police Department.

On October 12, 2008, the Appellant completed an incident report stating: “On 9/29/08 at approximately 8:00 P.M., I, Officer Ford, was contacted by the Rehoboth Police by Telephone, informing me of another restraining order in place by my ex- wife. The restraining order was filed on 9/18/08. I was unaware of said order.” The incident report does not reference the Appellant’s appearance in Taunton District court on October 2, 2008.

On October 29, 2008, Gatewood met with the Appellant and his union representative and asked the Appellant why he failed to submit an incident report regarding his 9/29/08 phone call with Rehobeth police until October 12th. The Appellant told Gatewood that he had been under medical care from September 12, 2008 until sometime in October and provided medical documentation. Gatewood testified that, even after reviewing the medical documentation, he concluded that the Appellant could have notified DOC since he had been physically able to have a phone conversation with the Rehobeth Police. Thus, according to Gatewood, the Appellant was capable of contacting DOC.

The medical documentation submitted by the Appellant was a form signed by a medical provider on October 2, 2008 stating that the Appellant “could not perform his duties” on 9/21/08 and “may return to work with no restrictions on 10/12/08

The Appellant testified that when he received the restraining order, he contacted his union representative who contacted his supervisor, Deputy Superintendent Leveque. The Appellant testified that Deputy Leveque called him back that afternoon, listened to the explanation and told him that as soon as he gets back to work he is to write a report on the incident and the restraining order. The Appellant testified that on the day he returned to work from his medical leave on October 12, 2008, he wrote the incident report which was introduced into evidence.

Rule 2(b) of the DOC Rules and Regulations states that DOC employees must:

“Report promptly in writing to your Superintendent, DOC Department Head, or their designee, any change of events regarding your residential address, home telephone number, marital status, and any involvement with law-enforcement officials pertaining to any investigation, arrest or court appearance.”

Appellant’s Argument of Disparate Treatment

The Appellant testified that a DOC Captain, who served as a shift commander, was convicted of a domestic violence-related offense several years ago and was not terminated.

The Appellant submitted a criminal docket sheet from the Wareham District Court regarding the above-referenced Captain and an incident report from the Lakeville Police Department.

The above-referenced criminal docket regarding said Captain states:

1. ASSAULT W/DANGEROUS WEAPON c.265 § 15B 10/12/99: Sufficient facts found but continued without guilty finding until 10/10/2000

2. KIDNAPPING c265 §26 5/25/00: Dismissed upon … request of Comm.

3. A&B c265 § 13A 10/12/99: Sufficient facts found but continued without guilty finding until 10/10/200

4. WITNESS, INTIMIDATE x268A § 13B 10/12/99: Sufficient facts found but continued without guilty finding until 10/10/200

The Lakeville Police Department incident report is a 5 1⁄2 page report from a police officer that clearly establishes that the incidents stemmed from domestic violence allegations of the Captain’s wife, who was initially spotted by police walking on the side of a highway crying and bleeding.

On May 25, 2010, DOC forwarded correspondence to the Commission which stated in part: “ … the Department has no disciplinary history in connection with [the criminal docket of the Captain]. The Department did, however, detach [the Captain] pending the outcome of the criminal charges against him. The criminal charges were dismissed on or about October 12, 1999. As a result of this dismissal, the Department believed at the time, more than ten years ago, that there was not just cause to discipline [the Captain]. [This] matter is clearly distinguishable to the case at bar as Mr. Ford was convicted.” (emphasis in original) In their post-hearing brief, DOC stated that the incident involving the Captain “ … is distinguishable from the present matter as it does not concern a court conviction for the misdemeanor crime of domestic violence. Hence, Lautenberg does not apply … Additionally, [the Captain] was not charged with the crime of domestic violence and there was no conviction … ”.

Appellant Exhibit 13 is a spreadsheet of all disciplinary charges against DOC employees related to domestic violence over what appears to be two decades. Many entries lack relevant information, including the disposition of the domestic violence- related charges. For example, the third entry on page 1 of the spreadsheet states that the employee was “arrested and charged w/ domestic assault and battery and intimidation of a witness” and was suspended for one day on October 23, 2009.

There is no information regarding the disposition of the charges. The third entry from the bottom on page 1 of the same spreadsheet states that another employee was “arrested and charged w/intimidation / assault and battery” and was terminated on April 7, 2010. A cursory review of all entries where a conviction of a domestic- related charge is noted does appear to have resulted in the employee’s termination. For example, the eighth entry on page 2 states that an employee was “arrested / admitted to sufficient facts on a domestic assault & battery charge, the court later entered a guilty finding / sentenced to house of correction for 3 months.” This employee was terminated by DOC on August 18, 2006.

CONCLUSION

G.L. c. 31, § 43, provides:

“If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority’s procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained, and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority.”

An action is “justified” if it is “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law.” The Commission determines justification for discipline by inquiring, “whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of public service.”

The Appointing Authority’s burden of proof by a preponderance of the evidence is satisfied “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.”

“The commission’s task…is not to be accomplished on a wholly blank slate. After making its de novo findings of fact . . . the commission does not act without regard to the previous decision of the [appointing authority], but rather decides whether ‘there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision’”, which may include an adverse inference against a complainant who fails to testify at the hearing before the appointing authority.

Under Section 43, the Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” The role of the Commission is to determine “whether the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority.”

By a preponderance of the evidence, DOC has shown that the Appellant violated DOC’s zero-tolerance policy regarding domestic violence when he was convicted of a domestic violence misdemeanor in Warren, Rhode Island. Further, DOC has shown that the Appellant violated DOC rules when he failed to report promptly to his supervisor that he appeared in Taunton District Court on October 2, 2008 for a hearing related to the extension of a restraining order against him.

It is undisputed that on November 7, 2008, the Appellant was found guilty of Simple Assault / Domestic in Warren, Rhode Island. He was placed on probation for one (1) year; ordered to have no contact with the victim (his ex-girlfriend); ordered to attend a batterers’ intervention program and substance abuse counseling and pay court costs. There was an original conviction in the district court and then an appeal de novo to the superior court where the conviction was the same.

It is also undisputed that DOC has a zero-tolerance policy related to domestic violence prohibiting its employees from participating in any form of domestic violence, either within or outside the workplace. DOC rules state that acts of domestic violence, regardless of where they occur, shall not be tolerated and may result in discipline, including, but not limited to: a) an oral warning; b) a written warning or reprimand to be placed in a personnel file; c) required completion of a certified batterer intervention program; d) suspension, demotion or termination; or e) any combination of the above.

The parties differ on whether the Appellant, as a result of his conviction, is prohibited from carrying a firearm and, if so, whether this disqualifies him from serving as a police officer.

DOC argues that the Appellant is prohibited from carrying a firearm, citing the Federal Lautenberg Amendment (18 U.S.C. § 922(g)(9)), which states in pertinent part: “It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

The Appellant argues that DOC did not show that this federal law supersedes state law and has not introduced evidence to show that a person convicted of a domestic violence offense is ineligible to obtain a firearm permit in Massachusetts.

Whether the Lautenberg Amendment passes constitutional muster will not be decided by a quasi-judicial agency in Massachusetts. Challenges to this federal law continue to work their way through the federal courts. For the purposes of this appeal, however, I conclude that DOC was reasonably justified in relying on Lautenberg to conclude that the Appellant is not eligible to carry a firearm. However, even if the Appellant is eligible to carry a firearm, DOC was still justified in disciplining him for violating its zero-tolerance policy regarding domestic violence.

Even if the Appellant is prohibited from carrying a firearm, the parties differ on whether this disqualifies him from serving as a Correction Officer. Here, the preponderance of the evidence supports DOC’s argument that the ability to carry a firearm is a minimum entrance requirement to serve as a correction officer. This is explicitly stated on the civil service examination notices, including the notice regarding the examination taken by the Appellant, and is explicitly stated in the job specifications as an example of duties required of a Correction Officer I. While correction officers that perform patrol duties do not regularly carry a firearm, there are critical functions that require possession of a firearm, including “tower duty” and the transporting of inmates out of the facility.

The Appellant also failed to comply with DOC rules which require employees to promptly report in writing any involvement with law enforcement officials pertaining to any investigation, arrest or court appearance. While I credit the Appellant’s testimony that he spoke with a DOC Deputy Superintendent via telephone after he was served a temporary restraining order, the Appellant failed to notify DOC that he subsequently appeared in court on October 2, 2008 at which time the restraining order was extended. Rather, on October 12, 2008, the Appellant wrote an incident report which stated “On 9/29/08 at approximately 8:00 P.M., I, Officer Ford, was contacted by the Rehoboth Police by Telephone, informing me of another restraining order in place by my ex-wife. The restraining order was failed on 9/18/08. I was unaware of said order.” The incident report does not reference the Appellant’s appearance in Taunton District court on October 2, 2008.

Having determined that it was appropriate to discipline the Appellant, the Commission must determine if DOC was justified in the level of discipline imposed, which, in this case, was termination.

The Commission is guided by “the principle of uniformity and the ‘equitable treatment of similarly situated individuals’ [both within and across different appointing authorities]” as well as the “underlying purpose of the civil service system ‘to guard against political considerations, favoritism and bias in governmental employment decisions.’ ” Even if there are past instances where other employees received more lenient sanctions for similar misconduct, however, the Commission is not charged with a duty to fine-tune employees’ suspensions to ensure perfect uniformity.

“The ‘power accorded the commission to modify penalties must not be confused with the power to impose penalties ab initio, which is a power accorded the appointing authority.’” Unless the Commission’s findings of fact differ significantly from those reported by the appointing authority or interpret the relevant law in a substantially different way, the commission is not free to “substitute its judgment” for that of the appointing authority, and “cannot modify a penalty on the basis of essentially similar fact finding without an adequate explanation”

The Commission found,  based on the testimony of credible witnesses and the documentary evidence submitted, essentially the same findings as DOC. Specifically, that the Appellant, who was convicted of Simple Assault / Domestic, violated DOC’s zero- tolerance policy regarding domestic violence. Further, the Appellant violated DOC rules by failing to notify them that he appeared in Taunton District Court on October 2, 2008, at which time the court extended the restraining order entered against him in regard to his ex-wife.

The Appellant argues that other similarly situated individuals have not been terminated for their offenses. The Appellant has not shown that other individuals, convicted of a domestic violence-related misdemeanor, have not been terminated. A review of all entries where a conviction of a domestic-related charge is noted does appear to have resulted in the employee’s termination on a spreadsheet submitted by the Appellant.

Although the incident occurred a decade ago and did not result in a conviction, the Commission was deeply troubled regarding DOC’s lack of disciplinary action against a captain who admitted to sufficient facts to assault with a deadly weapon, assault and battery and witness intimidation. The incident report regarding this matter alludes to a nightmarish series of events inflicted upon the captain’s wife at the time. Notwithstanding the distinction (no conviction of a domestic violence-related offense), it is regrettable, even over a decade ago, that DOC would turn a blind eye to such behavior by one of its superior officers. This inaction, however, does not warrant the Commission’s intervention in the instant matter regarding the Appellant, who was convicted of a domestic violence-related offense.

For all of the above reasons, the Appellant’s appeal under Docket No. D1-09-256 was dismissed.

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