Falmouth Firefighter And Union Head Sues Town, Former Town Manager

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By: Brent Runyon
Published: 12/24/10

Falmouth Firefighter and head of the International Association of Firefighters Local 1397 Russell R. Ferreira has filed a lawsuit against the town and the former town manager alleging the town accessed, copied, disseminated, and destroyed messages from his town e-mail account, which included both union and personal communications.

The undisputed facts of the case, according to legal documents, are that the town froze and copied Mr. Ferreira’s e-mail account on two occasions in 2008 as part of a police investigation into the harassment of a former town employee, and, again in 2009, during an investigation into that employee’s sexual harassment allegations against former town manager Robert L. Whritenour Jr.

The disputed facts are whether Mr. Ferreira had an expectation of privacy for his town e-mail account because he is a firefighter and the president of the local union, and whether the e-mails were distributed to Mr. Whritenour to be used in his defense against the allegations.

“We believe he’s responsible,” Mr. Ferreira said of Mr. Whritenour on Wednesday, but did not say how much he was seeking in damages from the lawsuit.

The e-mails referenced in the case by Mr. Ferreira reveal intimate details about his personal relationships.

In 2008, in response to complaints by former town employee Kristen L. Waugaman that she was being continually harassed via phone calls and text messages while at work, Falmouth police and the Falmouth Information Technology Department froze four town employees’ e-mail accounts.

Police copied e-mails containing various personal matters of a sexual and romantic nature, as part of the investigation into Ms. Waugaman’s claims she was being harassed.

The lawsuit also references an angry e-mail exchange with former firefighter Mark Waugaman, Ms. Waugaman’s husband, who was fired in 2009.

Mr. Ferreira alleges that e-mails were copied and disseminated to Mr. Whritenour by Lynn Grant Major, head of the technology department.

The town denies that Mr. Whritenour received any compromising e-mails, but maintains it had a right to access the e-mails because they were on the town e-mail system.

The town’s policy, stated in the employee handbook, is that employees should use e-mail for business use, and should not assume that the messages are confidential, or that the town will not access their accounts.

But Mr. Ferreira argues that his union never accepted that policy as part of its collective bargaining agreement with the town, and that love letters and other personal communications are exempt from public records laws.

“Unlike other town employees, firefighters live at their work site through the day and night, and are therefore required, on occasion, to communicate with their families, their union, and concerning other personal matters, while they are at the fire station,” Mr. Ferreira wrote in his affidavit to the court.

Mr. Ferreira also reports that former Falmouth chief Paul D. Brodeur said he would not access firefighters’ e-mail accounts because they were privileged, and said they could use the e-mail for union business.

The town denies that all communications between union personnel are confidential and maintains it did not access any e-mail related to union negotiations.

“No one from the Town of Falmouth has ever told the plaintiffs that e-mails sent and received on their public employer’s e-mail account would be confidential whether or not they were sent to and from union members about union business,” the town’s response to the lawsuit reads.

The lawsuit was filed last year and is currently being reviewed by Judge Christopher J. Muse in the Barnstable Superior Court. A decision on whether the case will go forward is expected to be issued in the coming weeks.

The town’s side of the lawsuit is being handled by the Boston law firm of Brody, Hardoon, Perkins, and Kesten.

No one was prosecuted for the harassment of Ms. Waugaman, and the claims against Mr. Whritenour were later dismissed.

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