Desmond v. Town of West Bridgewater
| Decision Date | 21 April 2016 |
| Docket Number | SUCV 2015-0074-D |
| Parties | Daniel Desmond v. Town of West Bridgewater et al. [1] No. 133794 |
| Court | Massachusetts Superior Court |
April 22, 2016, Filed
The Town of West Bridgewater (" Town") terminated plaintiff, Daniel Desmond (" Mr. Desmond") from the position of police officer for his " continued pattern of lying/perjury [and] conduct unbecoming [a police officer] . . ." [2] Serious as these charges are [3] the Town arguably tolerated worse among one or more of its well-connected police officers without termination of employment. The key issue in this appeal is therefore not misconduct; it is favoritism, which the Commission's findings failed to resolve.
This case arose upon Desmond's appeal under G.L.c. 30A, § 14 from a final decision (" Decision") of the Civil Service Commission (" Commission") upholding the Town's to terminate his employment as a police officer. Pursuant to Standing Order 1-96, Mr. Desmond has filed a Motion for Judgment on the Pleadings (" Motion") which the Commission has opposed. After review of the administrative record, motion and memorandum and upon consideration of oral arguments, the Motion is ALLOWED.
Desmond was employed as a West Bridgewater Patrolman for 17 years before his termination in February 2014. He had no significant prior disciplinary record.
The charges against him arose out of his relationship with a married woman referred to as Mrs. A. Ultimately, Mrs. A completed an application for a restraining order against her husband under G.L.c. 209A. Desmond called the Brockton Police to obtain information about who was on duty. Desmond denied--ultimately under oath in Brockton District Court on September 9, 2013--that he assisted Mrs. A. in completing the 209A Application.
Later on November 2, 2013, Mrs. A. told Desmond that she had decided to leave her husband, who responded by making threats. Desmond told her to report this to the Brockton Police Department. Again, Desmond ultimately denied under oath that he helped Mrs. A. complete the form. However, the Town introduced a videotape showing that Desmond was present which Mrs. A. filled out the c. 209A application. On November 4, 2013, Mrs. A. and Desmond appeared in the Brockton District Court for an extension of the c. 209A order. The matter was continued to November 8, when a tape-recorded hearing occurred. The Court asked Desmond about his relationship with Mrs. A. and asked whether he had ever " seen" the c. 209A affidavit. Based upon record testimony, the Commission found that Desmond gave false answers to both questions. The Court denied the c. 209A extension and stated that he found Desmond's testimony " not credible."
West Bridgewater Lieutenant Victor Flaherty received information that Desmond had been harassing Mr. A. and his wife and that Desmond was running unauthorized probation checks on both of them. He began an investigation of Desmond. Desmond testified that he and Lt. Flaherty did not have a good relationship, ever since Desmond had angrily confronted Lt. Flaherty four months earlier regarding the suicide of a fellow officer whom Lt. Flaherty was investigating. Lt. Flaherty denied this. Instead of resolving that dispute, the Commission stated: " I was unable to reach a conclusion as to whether this alleged conversation, or a version of it, ever took place." It pointed out that Lt. Flaherty did not make the decision to terminate Desmond and that " all of the supportable charges against Mr. Desmond stand independent of any action taken by Lt. Flaherty."
On December 11, 2014, the Commission affirmed the Town's order that Mr. Desmond be terminated from employment as a police officer for giving false testimony under oath and for conduct unbecoming an officer. It found that " Mr. Desmond made multiple untruthful statements" as follows:
The Commission also found that Desmond engaged " in conduct unbecoming a police officer when he used police department technology to conduct an inquiry of Mrs. A. under the Interstate Identification Index." However, it found that " [t]he Town did not show, by a preponderance of the evidence, that it was unlawful or a violation of any rule for Mr. Desmond to run an inquiry on the license plate numbers of vehicles registered to Mr. or Mrs. A." [4] The Commission also found that the Town failed to show that Desmond used his position as a police officer to influence police activity and failed to prove that Desmond harassed Mrs. A.
The hearing officer stated:
While I have not reached all of the same findings as the Town in regard to each of the alleged charges, I have, similar to the Town, concluded that Mr. Desmond engaged in untruthfulness and conduct unbecoming an officer, both of which warrant disciplinary action against Mr. Desmond.
The hearing officer then turned to the question whether the " town was justified in the level of discipline imposed--termination." His treatment of that issue is set forth in the " Discussion" section below.
Mr. Desmond presented proof that the Town retained a fellow officer, Officer Kominsky, despite facts that, in the hearing officer's words, provided the Town " with ample reason to review whether that police officer [Kominsky] should be terminated, which he wasn't." In the federal prosecution entitled United States v. Henderson, 229 F.Supp.2d 35 (D.Mass 2002), aff'd, 463 F.3d 27 (1st Cir. 2006), District Judge Mark Wolf found that Patrolman Kominsky was " perhaps the worst law enforcement witness, who was trying to be candid, assuming he was trying to be candid that I've ever encountered." The United States Court of Appeals for the First Circuit found Officer Kominsky's testimony " riddled with implausibilities and inconsistencies, and that it was disbelieved by the district court in important respects and contradicted by law enforcement witnesses in others." United States v. Henderson, 463 F.3d 27, 28 (1st Cir. 2006). As a result, the First Circuit vacated Mr. Henderson's conviction, including his sentence to sixteen years of incarceration. The hearing officer found it perplexing that the Town did not terminate Officer Kominsky or, indeed, take any disciplinary action against him.[5]
Under G.L.c. 30A, § 14(7), this Court has limited power to set aside or modify the Decision. It may do so if his substantial rights may have been prejudiced because the agency decision is based on an error of law or on unlawful procedure, is arbitrary and capricious or unwarranted by facts found by the agency, or is unsupported by substantial evidence. G.L.c. 30A, § 14(7)(c)-(g). Substantial evidence is " such evidence as a reasonable mind might accept as adequate to support a conclusion." G.L.c. 30A, § 1(6). The court must consider the entire record, including whatever " fairly detracts" from the agency's finding, but the Court has no power to substitute its judgment for that of the agency if the record contains substantial evidence to support conflicting propositions; nor may it second guess the agency's judgment regarding credibility of witnesses and the weight to be given to particular evidence. See Doherty v. Retirement Commission of Medford, 425 Mass. 130, 135, 680 N.E.2d 45 (1997). When reviewing an agency decision, the court is required to give " due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G.L.c. 30A, § 14(7).
The appealing party bears the burden of demonstrating the invalidity of the agency decision. See Bagley v. Contributory Ret. Appeal Bd., 397 Mass. 255, 258, 490 N.E.2d 1177 (1986). The Supreme Judicial Court has noted that the appellant's " burden is heavy." City of Springfield v. Dep't of Telcomms. & Cable, 457 Mass. 562, 568, 931 N.E.2d 942 (2010) (citation omitted).
There is no serious dispute that the evidence regarding Mr. Desmond's conduct supported a finding that he testified untruthfully in court and misused the CGIS system. There is, accordingly, no serious question that discipline was warranted.
The Town had justification to take disciplinary action against Mr. Desmond for his " 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." Falmouth v. Civil Service Comm'n, 447 Mass. at 824, citing Cambridge, 43 Mass.App.Ct. at 303. The Commission had ample evidentiary support for upholding the Town's decision to impose...
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