Jul 212014

The Groton Board of Selectmen wrapped up four and a half hours of hearings on complaints against town employees by former four firefighters saying “We now consider this matter closed,” but the Friday hearings may have just been the first part of an epic disagreement.

The four firefighters who filed the complaints, James Horan, Clarence Jefferson, Ben Miele, and Stephen Tervo, and their attorney, Rob Bowen, issued a news release Monday morning to make clear that as far as they’re concerned, the matter is not closed. A lawsuit to force another type of hearings, before Groton’s fire chief, may be in the offing.

The Friday July 18 BoS hearings were the highest level of the town’s grievance procedure and were the result of the firefighters filing complaints against other town employees for harassment, retaliation, and coercion. The hearings gave the accused town employees an opportunity to respond to the firefighter’s written complaints, but the firefighters did not testify.

The hearing that the firefighters are seeking through Bowen is a hearing conducted under the state Strong Chief Law to determine if any of them took actions that justify their employment being terminated.

“The law seems to entitle them to a ’cause’ hearing, and at the moment, that is what we are seeking.” Bowen said. “It is a bona fide legal dispute and a difference of opinion between two attorneys, and for the Chairman of the Board of Selectmen to label it as ‘frivolous’ is not helpful to the conversation.”

The full news release issued by Bowen reads:

Until June 2014, Clarence Jefferson, Stephen Tervo, Benjamin Miele, and James Horan were members of the Groton Fire Department. Massachusetts General Law chapter 48 section 42 (the so-called Strong Chief Law) gives the fire chief the authority to remove firefighters “for cause after a hearing.” No such hearings have been held, nor does the town plan to hold such hearings. This is unfortunate, as it has left a cloud over these men, who have been in dedicated service to the town for years, and in one case more than three decades.

Their situations are all different, but they have at least two things in common. They engaged in protected union organizing activity, and participated in an independent investigation into allegations against the department by another firefighter. Although that investigation failed to substantiate those claims, further investigation into related issues was conducted, but not by the independent investigator. The town manager took it upon himself to conduct his own follow up. Upon information and belief, he actually delegated his investigation to the chief. Two of the dismissed firefighters could not participate in a meeting due to scheduling conflicts. Only after the fact were they informed the meeting was supposedly “mandatory.” Nevertheless, their absence seems to have been held against them. As a result of this internal investigation, the challenged personnel actions were taken.

The main complaint of the dismissed firefighters is simply that they are entitled to a hearing and a reason, a legitimate reason, for their summary departure. It is not their purpose to try their claims in the press, but they do collectively want to clear their names. To that end, they filed complaints with the Board of Selectmen, In response to those complaints, the Board of Selectmen convened an executive session to investigate those complaints, but this is not a substitute for a hearing in which the firefighters would be allowed to defend the allegations against them. This fundamental right to due process has been denied.

Instead, the town conducted its “investigation” into their allegations in executive session, as the law requires, which means three things. First and foremost, the dismissed firefighters have not been given a chance to defend themselves against the false accusations resulting in their separations. Second, without their direct participation in the hearings, it is simply impossible to know whether their complaints were thoroughly understood and addressed. Finally, because the town continues to deny them their own hearing, it means the public will not know what happened. In the end, it’s the taxpayer who is most aggrieved by this situation.

The towns’ position is that these firefighters were not reappointed, resigned, or retired and so were not entitled to a hearing. Whatever the merits of their argument might be in towns that annually appoint their firefighters, the fact of the matter is that in Groton, annual appointment have not taken place for over three decades. Now, in order to circumvent the requirement of a cause and a hearing for the removal of firefighters, an annual reappointment process has been invented. The firefighters intend to challenge this end run in Court.

This is not some “technicality” or oversight. The lack of an annual reappointment process has led to the justifiably settled expectation of continued employment for these firefighters, an entitlement recognized and protected by the Strong Chief Law due process hearing requirement. Instead, a veteran of 33 years was told to retire when informed that he would not be reappointed, and two other firefighters were summarily dismissed via email without hearing or explanation. Although the forth resigned in protest over his treatment regarding protected union activity, it is believed personnel action against him had also already been determined. It’s not fair to these employees, or to the Town. More importantly, it is an end run around the Strong Chief Law, and, we think, unlawful in violation of that statute and the constitutional right of these firefighters to due process.

Thus far, the town has decided not to give these men their “day in court.” The discharged firefighters are disappointed that, without their participation in the recent executive session meetings into their own complaints, without their ability to confront the witnesses against them, the town did not find their complaints to be substantiated. The town’s choice of words is equivocal. Their determination that the allegations were “unsubstantiated” only means that in their view nothing unlawful was done. It is not a factual denial of events that have taken place.

But whatever the outcome of these hearings had been, they are not a substitute for a hearing regarding their own separation from employment. Due process has been denied with respect to the personnel actions taken against them. Accordingly, they will seek their redress in court. Although certainly a possible outcome of any litigation is an award of damages, what the terminated firefighters are primarily seeking is the vindication of their reputations.

They plan no other comment at this time; they will present their case to the court of law, not the court of public opinion, and ask that any further communications be directed to their attorney, Robert H. Bowen.