Civil Service Hears Facts In Termination Of Bourne Firefighter

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By: Alex Scofield
Published: 08/12/11

The Massachusetts Civil Service Commission yesterday listened to a second day of hearings on former Bourne firefighter Richard J. Doherty’s appeal of the town’s decision to fire him, and the hearings will continue for at least one more day. Town Administrator Thomas M. Guerino fired Mr. Doherty in February, based on what Mr. Guerino termed “a series of repeated violations of the Rules and Regulations” of the Bourne Fire Department.

In addition to the Civil Service appeal, the Town of Bourne now faces legal action on several fronts stemming from its decision to fire Mr. Doherty. They include a federal lawsuit Mr. Doherty filed in May, and a complaint Bourne’s firefighters union filed with the state’s Department of Labor Relations.

In firing Mr. Doherty, Mr. Guerino cited a series of postings Mr. Doherty made on Facebook regarding superiors on the Bourne Fire Department, Bourne Police Department officials, and the Town of Bourne in general. Mr. Guerino said these postings rendered Mr. Doherty unable to function with superior officers or other public safety officials. Mr. Guerino made his decision to fire the firefighter following disciplinary hearings held in September and October.

“Firefighter Doherty has repeatedly demonstrated that he cannot meet the requisite standards of the position he holds,” Mr. Guerino said in his decision to fire Mr. Doherty in February. As a firefighter, Mr. Doherty had responsibilities including “a commitment to duty, responsibility, respect for fellow Firefighters, and respect for other public safety workers, the community, civic leaders and the public.”

Gilbert N. Taylor, president of the Bourne firefighters union, Local 1717 of International Association of Fire Fighters, said yesterday that he could not comment on any of the current proceedings involving Mr. Doherty. However, Mr. Taylor expressed in a February press release the union’s support of Mr. Doherty in appealing his termination.

“The Union agrees that public safety personnel should be held to a higher standard of conduct,” Mr. Taylor said in the press release. “The Union, however, disagrees as to what the Town can claim as conduct that rises to a level requiring termination. Nothing Firefighter Doherty did, [said] or wrote violated any laws and was to the contrary protected under the state and US constitutions.”

In legal challenges to his dismissal, Mr. Doherty has maintained that his Facebook postings were constitutionally protected speech.

In May, Mr. Doherty filed a lawsuit against Mr. Guerino and the Town of Bourne in the US District Court alleging the town violated his First Amendment rights in firing him. The federal suit is being held in abeyance, and has not yet been served on the town or Mr. Guerino.

Local 1717 filed a complaint in March with the Massachusetts Department of Labor Relations. In the complaint, the union alleged that the Town of Bourne engaged in prohibited practices in firing Mr. Doherty. The complaint cites four of Mr. Doherty’s Facebook postings, and claims they “constitute concerted protected activity,” and that the Town of Bourne fired Mr. Doherty in retaliation for these postings.

“[The Town of Bourne] has derivatively [sic] interfered with, restrained and coerced Doherty in the exercise of his rights,” the union concluded in its complaint.

Jennifer N. Smith, an investigator with the Labor Relations Department, in June conducted an investigation into the union’s complaint. Ms. Smith stated in a July 29 memorandum that she found probable cause to believe that the town violated Mr. Doherty’s rights. As a result of Ms. Smith’s finding, Mr. Doherty now has a right to a hearing before the state’s Employment Relations Board.

The Town of Bourne on August 3 filed an answer to the union’s complaint. Robert S. Troy, counsel for the Town of Bourne, denied Ms. Smith’s finding that the town engaged in prohibited practices. In response to Ms. Smith’s finding that Mr. Doherty posted “information on his Facebook Wall about” an incident in which Mr. Doherty responded to an emergency and became the subject of a police report, Mr. Troy said, “Doherty did not post information about the incident. He posted disparaging remarks about members of the Bourne Police Department.”

Regarding a posting by Mr. Doherty on being assigned mandatory overtime duty on July 4, 2010, Mr. Troy highlighted an expletive-laden caption to Mr. Doherty’s posting. “The Town asserts that the posting disparages the Town, its citizens and public officials and is not protected activity,” Mr. Troy said.

Any hearing on the union’s complaint would take place between July and September 2012. Alternative mechanisms of mediation or arbitration are available, should both parties agree to them.

Leah M. Barrault, a Boston-based attorney representing Mr. Doherty in the Civil Service appeal, did not respond to an e-mail or a pair of telephone calls seeking information on Mr. Doherty’s hearing this week. Since Mr. Doherty’s disciplinary hearing last September, the Enterprise has made multiple phone calls to Ms. Barrault, Harold L. Lichten and Terrence E. Coles, all attorneys who have represented Mr. Doherty in his legal proceedings since last September; none of the calls have been returned.

 

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